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

                                                                         FILED
                                  No. 17-50518                        July 2, 2019
                                                                    Lyle W. Cayce
DOCTOR JOSEPH A. ZADEH; JANE DOE, Patient,                               Clerk


             Plaintiffs - Appellants

v.

MARI ROBINSON, in her individual capacity and in her official capacity;
SHARON PEASE, in her individual capacity; KARA KIRBY, in her
individual capacity,

             Defendants – Appellees



                Appeals from the United States District Court
                      for the Western District of Texas


                ON PETITION FOR REHEARING EN BANC

Before JOLLY, SOUTHWICK, and WILLETT, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
      No member of the panel nor judge in regular active service requested
that the court be polled on rehearing en banc. The petition for rehearing en
banc is therefore DENIED. See FED. R. APP. P. and 5th Cir. R. 35. Treating
the petition for rehearing en banc as a petition for panel rehearing, the petition
is GRANTED. We withdraw our prior opinion, Zadeh v. Robinson, 902 F.3d
483 (5th Cir. 2018), and substitute the following.
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                                    No. 17-50518
      The Texas Medical Board executed an administrative subpoena on
Dr. Joseph Zadeh’s medical office.       Thereafter, Dr. Zadeh and one of his
patients sued several Board members under 42 U.S.C. § 1983, claiming that
the Board’s actions violated the Fourth Amendment.             The district court
partially granted the defendants’ motion to dismiss and later granted their
motion for summary judgment rejecting all remaining claims. We AFFIRM.


              FACTUAL AND PROCEDURAL BACKGROUND
      Plaintiff Dr. Joseph Zadeh appeals the dismissal of his Section 1983
claim against several members of the Texas Medical Board who he claims
violated his constitutional rights through a warrantless search of his office and
medical records. Dr. Zadeh, an internal medicine doctor, owns and operates a
medical practice in Euless, Texas. One of his patients, Jane Doe, is also a
plaintiff-appellant in this case.
      Dr. Zadeh was the subject of an administrative proceeding before the
State Office of Administrative Hearings (“SOAH”) for violations of the Board’s
regulations. The Drug Enforcement Agency (“DEA”) also was investigating
him. Indeed, it appears the Board first learned about allegations against
Dr. Zadeh when the DEA filed a complaint with the Board about his
prescribing practices in September 2013. The DEA investigator emailed a
representative of the Board, stating, “I’m at a point in the criminal case that I
need to interview Dr. Zadeh and review his patient files.” The Board then
initiated an investigation.
      As part of this investigation, Defendants Sharon Pease and Kara Kirby,
who were investigators with the Board, served an administrative subpoena on
Dr. Zadeh on October 22, 2013. The subpoena had the electronic signature of
Defendant Mari Robinson, who was the Executive Director of the Board. The
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subpoena was for the immediate production of the medical records of sixteen
of Dr. Zadeh’s patients. Two DEA agents who were investigating related
criminal allegations accompanied Kirby and Pease.
      The district court found the “facts surrounding the execution of the
subpoena” to be “largely undisputed.” Dr. Zadeh was not present when the
investigators arrived. The subpoena was handed to the doctor’s assistant. The
investigators sat in the medical office waiting room to give the doctor time to
appear. While they waited, the assistant spoke on the phone with Dr. Zadeh,
his lawyer, and his brother who also is a lawyer. The assistant testified that
after these calls had occurred but no permission to proceed had been given, the
investigators told her they would suspend Dr. Zadeh’s license if the records
they sought were not produced. The investigators admit something was said
that was akin to a promise of some vague “disciplinary action.” What was said
at that point is at least unclear. The assistant eventually complied, taking the
defendants into a conference room and delivering the requested records to
them. Although most of their time was spent inside the public waiting area or
conference room, the investigators also approached the medical assistant to
ask for help while she was in exam rooms and later in a storage room.
      As a result of that search, Dr. Zadeh and his patient, Jane Doe, sued
Robinson, Pease, and Kirby in their individual capacities and Robinson in her
official capacity in the United States District Court for the Western District of
Texas. They alleged the defendants’ actions violated their Fourth Amendment,
due process, and privacy rights. The plaintiffs sought monetary damages
under 42 U.S.C. § 1983 as well as declaratory relief. The defendants moved to
dismiss the claims on these grounds: (1) the plaintiffs lacked standing; (2) the
Younger abstention doctrine barred the requests for declaratory relief; (3) the
claim against Robinson in her official capacity was barred by the doctrine of
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sovereign immunity; (4) the doctrine of qualified immunity applied to the
claims against the defendants in their individual capacities.
       In ruling on the motion to dismiss, the district court held Dr. Zadeh had
standing to pursue declaratory relief, but Jane Doe did not. Nonetheless, the
district court concluded that “the Younger abstention doctrine require[d] [it] to
abstain from adjudicating Plaintiff Zadeh’s claims for declaratory relief.” The
district court also held that sovereign immunity barred the plaintiffs’ claims
for monetary damages against Robinson in her official capacity. Finally, the
court concluded that the defendants were entitled to qualified immunity for
the privacy and due process claims. The only part of the suit left, then, was
Dr. Zadeh’s claim that the defendants violated his clearly established Fourth
Amendment rights during the search of his office.
       The defendants moved for summary judgment on “whether Defendants
exceeded their statutory subpoena authority by searching and inspecting
Plaintiff’s office and records.”     Although the plaintiffs alleged that the
investigators performed a thorough search of Dr. Zadeh’s office, the district
court found that the record did not support this allegation. Instead, the district
court determined that the “Defendants’ presence at Plaintiff’s office was solely
to execute the subpoena instanter.” The district court also held that Robinson
was not liable as she neither affirmatively participated in the alleged search
nor    implemented     unconstitutional       policies   that   caused   the   alleged
constitutional deprivation. Further, there was “no evidence Defendants Pease
and Kirby inspected Plaintiff’s office or searched his records.” The plaintiffs
timely appealed.




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                                 DISCUSSION
      The plaintiffs appeal both the order granting the motion to dismiss in
part and the order granting the motion for summary judgment. Although we
review both de novo, a different legal standard applies to each:
      In the former, the central issue is whether, in the light most
      favorable to the plaintiff, the complaint states a valid claim for
      relief. In the latter, we go beyond the pleadings to determine
      whether there is no genuine issue as to any material fact and that
      the movant is entitled to judgment as a matter of law.
St. Paul Mercury Ins. Co. v. Williamson, 224 F.3d 425, 440 n.8 (5th Cir. 2000)
(citations omitted).
      We first address the plaintiffs’ challenge to the district court’s grant of
qualified immunity, evaluating whether clearly established law prohibited the
defendants’ conduct. Next, we discuss whether the district court erred in
abstaining from deciding the plaintiffs’ claims for declaratory judgment.
Finally, we analyze whether Robinson was liable in her supervisory capacity.


I.    Grant of qualified immunity
      “The doctrine of qualified immunity protects government officials from
civil damages liability when their actions could reasonably have been believed
to be legal.”   Morgan v. Swanson, 659 F.3d 359, 370–71 (5th Cir. 2011).
Officials are entitled to qualified immunity “unless (1) they violated a federal
statutory or constitutional right, and (2) the unlawfulness of their conduct was
‘clearly established at the time.’” District of Columbia v. Wesby, 138 S. Ct. 577,
589 (2018) (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)).
      Using this framework, we analyze the plaintiffs’ arguments that clearly
established law prohibited the defendants’ execution of the subpoena
instanter. The plaintiffs offer two theories for why the defendants’ conduct

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was unconstitutional. First, they argue it was a warrantless search that did
not satisfy the administrative exception.       Second, they argue it was a
pretextual search and thus unconstitutional.


      a.    Warrantless search
      The plaintiffs argue the Board violated the Fourth Amendment when it
demanded immediate compliance with its administrative subpoena. We have
previously considered a challenge to a subpoena instanter executed by the
Texas Medical Board. See Cotropia v. Chapman, 721 F. App’x 354 (5th Cir.
2018). In that nonprecedential opinion, we held: “Absent 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. at 358
(quoting City of Los Angeles v. Patel, 135 S. Ct. 2243, 2452 (2015)).
      In that case, the physician at the center of a Board investigation pled
sufficient facts to overcome qualified immunity. Id. at 361. The doctor alleged
that a Board member “violated the clearly established right to an opportunity
to obtain precompliance review of an administrative subpoena before a neutral
decisionmaker” when he took documents from the physician’s office over
objections from the office receptionist. Id. at 357. Relying on Supreme Court
precedent, we held that it was clear at the time that “prior to compliance,
Cotropia was entitled to an opportunity to obtain review of the administrative
subpoena before a neutral decisionmaker.” Id. at 358 (citing See v. City of
Seattle, 387 U.S. 541, 545 (1967); Donovan v. Lone Steer, Inc., 464 U.S. 408,
415 (1984)). Similarly, the demand to turn over Dr. Zadeh’s medical records
immediately did not provide an opportunity for precompliance review. We
agree, then, that a requirement of precompliance review in many, if not most,
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administrative searches had been clearly established by Supreme Court
precedent prior to the search here.
      The defendants acknowledge this law but maintain there was no
constitutional violation because this search fell into an exception to the general
rule requiring precompliance review. We next examine that argument.


           i.     Closely regulated industry
      No opportunity for precompliance review is needed for administrative
searches of industries that “have such a history of government oversight that
no reasonable expectation of privacy” exists for individuals engaging in that
industry. Marshall v. Barlow’s, Inc., 436 U.S. 307, 313 (1978). Even so,
warrantless inspections in closely regulated industries must still satisfy three
criteria: (1) a substantial government interest, (2) a regulatory scheme that
requires warrantless searches to further the government interest, and (3) “a
constitutionally adequate substitute for a warrant.” New York v. Burger, 482
U.S. 691, 702–03 (1987) (quoting Donovan v. Dewey, 452 U.S. 594, 603 (1981)).
      Cotropia did not resolve whether the Board’s use of administrative
subpoenas satisfied the Burger criteria because the issue was not raised until
oral argument. Cotropia, 721 F. App’x at 360 & n.6. As a result, the panel’s
holding was expressly limited to concluding that the Board’s demand for
immediate compliance with the subpoena did not satisfy the general
administrative exception to the warrant requirement.         The argument has
timely been raised here, though. Thus, we must discuss whether the Burger
exception permitted the Board’s administrative subpoena and whether that
law was clearly established at the time of its execution.
      To categorize industries under Burger, courts consider the history of
warrantless searches in the industry, how extensive the regulatory scheme is,
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whether other states have similar schemes, and whether the industry would
pose a threat to the public welfare if left unregulated. See Burger, 482 U.S. at
704; Patel, 135 S. Ct. at 2454.    The defendants characterize the relevant
industry in two different ways. We evaluate first whether the practice of
medicine is a closely regulated industry and then whether the practice of
prescribing controlled substances is closely regulated.
      Acknowledging that the medical profession is subject to close oversight,
the district court emphasized the absence of a history of warrantless
inspections to conclude that the medical profession was not a closely regulated
industry. Important to its conclusion was the confidential nature of the doctor-
patient relationship: “It strains credibility to suggest that doctors and their
patients have no reasonable expectation of privacy.” On appeal, the defendants
all but concede that there is not a lengthy history of warrantless searches.
They instead emphasize the extensive regulatory scheme governing the
practice of medicine and the risk that the industry could pose to the public
welfare.
      There is no doubt that the medical profession is extensively regulated
and has licensure requirements. Satisfying the Burger doctrine requires more.
The Supreme Court instructs “that the doctrine is essentially defined by ‘the
pervasiveness and regularity of the federal regulation’ and the effect of such
regulation upon an owner’s expectation of privacy.” Burger, 482 U.S. at 701
(quoting Dewey, 452 U.S. at 605–06). Another key factor is “the duration of a
particular regulatory scheme.” Id. (quoting Dewey, 452 U.S. at 606).
      The Board cites several laws or regulations governing the behavior of
doctors. Outside of citing Texas’s licensure requirement for physicians, the
regulations the Board cites do not apply to the entire medical profession.
Instead, they target the practice of prescribing controlled substances.       As
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examples, the Board states that doctors must register with the DEA to
prescribe controlled substances, TEX. HEALTH & SAFETY CODE § 481.061; that
prescriptions of controlled substances are monitored by several law
enforcement agencies, id. §§ 481.067, 481.075, 481.076; and that pain
management clinics must register as such, which allows the Board to inspect
them from time to time, TEX. OCC. CODE §§ 168.101, 168.052; 37 Tex. Reg.
10079, 10079–80 (2012), adopted 38 Tex. Reg. 1876, 1876–77 (2013), amended
39 Tex. Reg. 297, 297–98 (2014) (former 22 TEX. ADMIN. CODE § 195.2); 35 Tex.
Reg. 1924, 1925–26 (2010), adopted 35 Tex. Reg. 3281, 3281–82 (2010),
amended 43 Tex. Reg. 768, 768–74 (2018) (former 22 TEX. ADMIN. CODE
§ 195.3). The Board also refers us to laws and regulations that similarly
regulate anesthesia.     These, though, do not amount to pervasiveness and
regularity of regulation over the medical industry as a whole as Burger
requires. Instead, only specific groups of doctors may have been put on notice
that the Board may perform some inspections.
         We also do not see in the medical profession an entrenched history of
warrantless searches. Its absence is relevant, though not dispositive, to our
issue. Burger, 482 U.S. at 701. For example, when the Court held that the
liquor     industry   was   closely    regulated,    it   mentioned   that   English
commissioners could inspect brewing houses on demand in the 1660s, and that
Massachusetts passed a similar law in 1692. Colonnade Catering Corp. v.
United States, 397 U.S. 72, 75 (1970). It then referred to a 1791 federal law
that has continued in various forms, permitting federal officers to perform
warrantless searches of distilleries and imposing an excise tax on distilled
liquor. Id. Because the focus there was “the liquor industry long subject to
close supervision and inspection,” the Court concluded that the Fourth


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Amendment did not prohibit the warrantless searches authorized by Congress.
Id. at 77. Here, there is no such history.
      In considering the reasonable expectation of privacy, we also consider
the sensitive nature of medical records. The Ninth Circuit explained that “the
theory behind the closely regulated industry exception is that persons
engaging in such industries, and persons present in those workplaces, have a
diminished expectation of privacy.” Tucson Woman’s Clinic v. Eden, 379 F.3d
531, 550 (9th Cir. 2004). We agree with that court’s observation that in medical
contexts, the expectation of privacy likely is heightened. Id.
      Admittedly, federal regulations do exempt the Board from the privacy
requirements of the Health Insurance Portability and Accountability Act
(“HIPAA”). 45 C.F.R. § 164.512. Further, the Board cites Texas laws providing
that where the Board does obtain information, it is subject to confidentiality
requirements. See TEX. OCC. CODE §§ 159.002; 159.003(a)(5); 164.007(c). That
HIPAA permits disclosure to the Board and that the regulations governing the
Board continue to protect that information from disclosure does not mean that
the Board is entitled to access to that information through an administrative
search without allowing an opportunity for precompliance review.
      We conclude, then, that the medical industry as a whole is not a closely
regulated industry for purposes of Burger. Still, even if the medical profession
at large cannot be said to fall within these Burger factors, it is possible that a
subset, such as those who prescribe controlled substances, would do so.
Because the parties focus their analysis of whether there is a closely regulated
industry on the medical profession as a whole and not on pain management
clinics, we assume only for purposes of our analysis today that pain
management clinics are part of a closely regulated industry and that Dr. Zadeh
was operating such a clinic even if his clinic was not certified as one. Such
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assumptions are appropriate in this case because ultimately our resolution
turns on whether the relevant law was clearly established. At this point, we
can at least say that the law was not clearly established whether pain
management clinics are part of a closely regulated industry. The remaining
relevant law, established with clarity or not, is analyzed below.


            ii.   Burger exception requirements
      Even were we to accept the defendants’ argument that doctors
prescribing controlled substances are engaging in a closely regulated industry
with less reasonable expectations of privacy, administrative searches of such
industries still must satisfy the three Burger criteria. There is no meaningful
dispute in this case as to the first two factors, namely, that the State has a
substantial interest in regulating the prescription of controlled substances and
that the inspection of a doctor’s records would aid the Government in
regulating the industry. We thus analyze only whether the statutory scheme
is a proper substitute for a search warrant. The Board relies on its authority
to issues subpoenas and to inspect pain management clinics. The principal
response from plaintiffs is that neither provides a constitutionally adequate
substitute for a warrant.
      In order for a warrant substitute authorized by statute to be
constitutionally adequate, “the regulatory statute must perform the two basic
functions of a warrant: it must advise the owner of the commercial premises
that the search is being made pursuant to the law and has a properly defined
scope, and it must limit the discretion of the inspecting officers.” Burger, 482
U.S. at 703. The relevant statute provides: “The board may 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).
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The Board argues that the statute, when considered with the following
regulation, limits the discretion of the officials. The regulation provides that
after a “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.” 22 TEX.
ADMIN. CODE § 179.4(a). The regulation defines “reasonable time” as “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.” Id.
      The district court held that a search using the Board’s subpoena
authority did not satisfy the third factor of the Burger test as it was “purely
discretionary,” allowing the Board “to choose which doctors to subpoena and to
do so at a frequency it determines.” To evaluate that holding, we consider the
limits that do exist: only licensees are subject to the subpoena; only medical
records must be produced; and it is the Board or its representatives who will
be asking for the records. As the district court stated, though, there is no
identifiable limit on whose records can properly be subpoenaed.
      As to inspections of pain management clinics, the Board argues that
some limits to its authority are set by the statute permitting it to inspect pain
management clinics.     Specifically, the statute allows it to examine “the
documents of a physician practicing at the clinic, as necessary to ensure
compliance with this chapter.” TEX. OCC. CODE. § 168.052(a). Providing more
specific guidance, the regulation in effect at the time provided:
      The board may conduct inspections to enforce these rules, including
      inspections of a pain management clinic and of documents of a
      physician’s practice. The board may contract with another state agency
      or qualified person to conduct these inspections.




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35 Tex. Reg. 1925, 1925–26 (2010), adopted 35 Tex. Reg. 3281, 3281–82 (2010),
amended 43 Tex. Reg. 768, 768–74 (2018) (former 22 TEX. ADMIN. CODE
§ 195.3).
      The district court found this inspection authority, like the subpoena
authority, to be “purely discretionary.” The governing criteria for an inspection
is that the target be a pain management clinic, that the Board performs the
inspection, and that the purpose for the search be to determine compliance
with pain management rules. We agree with the district court, though, that
these requirements suffered from the same fatal Burger flaw as the subpoena
authority: they did not limit how the clinics inspected are chosen.
      In summary, there are insufficient limits on the discretion of the Board
to satisfy the Burger requirements, whether considering the medical profession
in general or as to pain management clinics. What is left is the question of
whether the law on these points was clearly established and, regardless,
whether the search was invalid as pretextual.


            iii.   Clearly established law for qualified immunity
      To summarize, we have concluded there was a violation of Dr. Zadeh’s
constitutional rights. That is true even with our twin assumptions that pain
management clinics are part of a closely regulated industry and that Dr. Zadeh
operated a pain management clinic. Nonetheless, the defendants are entitled
to qualified immunity unless the constitutional requirements they violated
were clearly established at the time of their actions. Reichle, 566 U.S. at 664.
We hold that it was clearly established at the time of this search that the
medical profession as a whole is not a closely regulated industry, meaning that
governmental agents violate the Constitution when they search clinics that are
not pain management clinics without providing an opportunity for
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precompliance review. We also hold, even assuming that pain management
clinics are part of a closely regulated industry, that on-demand searches of
those clinics violate the constitution when the statutory scheme authorizing
the search fails to provide sufficient constraints on the discretion of the
inspecting officers. We need to analyze, though, whether that last statement
of law was clearly established when this search occurred.
      Our analysis of the clarity of relevant law is objective, meaning it does
not focus on the specific defendants’ knowledge.        “The touchstone of this
inquiry is whether a reasonable person would have believed that his conduct
conformed to the constitutional standard in light of the information available
to him and the clearly established law.” Goodson v. City of Corpus Christi, 202
F.3d 730, 736 (5th Cir. 2000).         “[E]ven law enforcement officials who
‘reasonably but mistakenly [commit a constitutional violation]’ are entitled to
immunity.”    Glenn v. City of Tyler, 242 F.3d 307, 312–13 (5th Cir. 2001)
(quoting Goodson, 202 F.3d at 736). For the law to be clearly established, there
must be a close congruence of the facts in the precedent and those in the case
before us. Wesby, 138 S. Ct. at 589–90. “The precedent must be clear enough
that every reasonable official would interpret it to establish the particular rule
the plaintiffs seek to apply.” Id. at 590.
      Defendants rely on one of our precedents that reviewed an
administrative search of a dentist’s office by agents of the Texas State Board
of Dental Examiners, accompanied by Department of Public Safety officials.
Beck v. Tex. State Bd. of Dental Exam’rs, 204 F.3d 629, 632 (5th Cir. 2000).
Dentist Beck was a target because of complaints filed against him for
prescribing controlled substances. Id. We concluded that the search did not
violate the plaintiff’s clearly established rights. Id. at 638–39. We applied the
Burger exception and determined there was a significant state interest in
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regulating dentists’ use of controlled substances; the search was conducted
pursuant to two regulatory schemes; and there was an adequate substitute for
a warrant where the statute permitted the official to conduct inspections
during “reasonable times” after “stating his purpose” and presenting his
credentials to the owner. Id. at 638–39. In light of Beck, the Board argues that
reasonable investigators could have believed the Burger exception permitted
the execution of the subpoena as they too were investigating prescriptions of
controlled substances within the medical industry.
      The plaintiffs insist that Beck is “patently distinguishable” for the same
reason argued in the separate opinion here.         The clarity of any possible
distinction, though, must be viewed through the lens that the law, including a
distinction, must be “sufficiently clear that every reasonable official would
understand that what he is doing is unlawful” at that time. Wesby, 138 S. Ct.
at 589 (quotation marks omitted). That means “existing law must have placed
the constitutionality of the officer’s conduct ‘beyond debate.” Id. Perhaps most
relevant, the “legal principle [must] clearly prohibit the officer’s conduct in the
particular circumstances before him. The rule’s contours must be so well
defined that it is ‘clear to a reasonable officer that his conduct was unlawful in
the situation he confronted.’” Id. at 590 (emphasis added).
      The claimed sufficient distinction here is that the regulations and
statutes under which the investigators in Beck acted explicitly permitted
inspections without prior notice. See Beck, 204 F.3d at 639. The Beck court
discussed that point at the end of the opinion, as it addressed several questions
regarding whether what occurred was a valid administrative search of a closely
regulated industry. Id. The final subject the court discussed was that one of
the statutes under which the inspection was conducted did not require that
prior notice be given. Id. (quoting Section 5.01(c) of the Texas Controlled
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Substances Act.) That is no small distinction, and we conclude today that
absent similar statutory or perhaps regulatory authority that dispenses with
prior notice, a search such as occurred here cannot be conducted without prior
notice. The issue for us, though, is whether that law was clearly established
at the time of the search we are reviewing today.
      As we already stated, the right is not clearly established unless it is
beyond debate using an objective test. We have discussed the intricacies of
New York v. Burger, which permit warrantless searches when they satisfy a
three-factor test. Our Beck decision held that the search there was of a closely
regulated industry, and therefore went through the three Burger factors. The
discussion of the specific statutory authorization for no-notice inspections was
to show that the third Burger factor was satisfied, which is that an adequate
substitute for a warrant existed. We did not say in Beck that the only sufficient
substitute under Burger was a statute authorizing no-notice searches. We did
hold that “under these circumstances, Beck does not show a violation of a
clearly established constitutional right.” Beck, 204 F.3d at 639.
      Instead of clearly establishing the principle that prior notice of a
regulatory search must be given unless the authorizing statute explicitly
announces it is unnecessary, Beck applied the general Burger principle to the
facts of that case that a warrant substitute authorized by a “regulatory statute
must perform the two basic functions of a warrant: it must advise the owner of
the commercial premises that the search is being made pursuant to the law
and has a properly defined scope, and it must limit the discretion of the
inspecting officers.” Burger, 482 U.S. at 703. In the Beck situation, that factor
was satisfied with the statutory language already discussed. We cannot see,
though, that every reasonable official prior to conducting a search under the
circumstances of this case would know this Burger factor was not satisfied. We
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think some, even many, reasonable officers would believe under the third
Burger factor that the owner of the premises was charged with knowledge that
a statute authorized the search, and the officers would reasonably believe the
scope of the search and the discretion of the officials was validly limited. We
have held that the statute fails this standard, but we do not hold that all
reasonable officers would have known that, until now.
      Therefore, although Beck does not control the constitutionality of the
Board’s actions in this case, it does weigh in favor of the defendants’ receiving
qualified immunity. We find more guidance from cases where a statute did not
clearly limit the official’s discretion in selecting who would be subject to an
administrative search.     In one, we held that the statute provided a
constitutionally adequate substitute for a warrant where the statute provided:
      The licensing agency shall make or cause to be made inspections
      relative to compliance with the laws and regulations governing the
      licensure of child care facilities. Such inspections shall be made at
      least once a year but additional inspections may be made as often
      as deemed necessary by the licensing agency.

See Ellis v. Miss. Dep’t of Health, 344 F. App’x 43 (5th Cir. 2009) (citing MISS.
CODE. ANN. § 43-20-15). Though that opinion is not precedential, we agree
with its reasoning.
      We also upheld an administrative search where, despite limits on the
conduct of an officer after a traffic stop, there were not clear limits on an
officer’s discretion as to whom to stop. See United States v. Fort, 248 F.3d 475,
482 (5th Cir. 2001). Because we have not so far required there to be a clear
limit on determining whom officials select for an administrative search, the
defendants reasonably could have believed that the administrative scheme
here provided a constitutionally adequate substitute for a warrant.


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                                  No. 17-50518
      Finally, the plaintiffs argue that even if qualified immunity might apply
to defendants who conducted a proper search, the defendants did not follow the
statutory scheme.     Therefore, they assert, caselaw in which the legal
requirements for the search were followed is inapplicable.        The claims of
overstepping authority, though, are minor. First, while the medical assistant
was waiting for Dr. Zadeh to appear, there is evidence one of the investigators
approached the assistant at her desk, then followed her into two exam rooms.
While in one of the rooms, the investigator asked if controlled substances were
kept in the room.     Second, there is evidence this same investigator also
approached the assistant while the latter was in a storage room and asked if
the investigators could use the medical office’s copy machine. The district court
said there was no evidence the investigator ever looked at any files or went
somewhere in the medical office without the assistant. Finally, as soon as the
investigators were asked to leave the office, they did so. We agree with the
district court that there is “no support in the record” to sustain the allegation
the investigators did a “thorough search and inspection.” The factual basis for
deviations from search protocols is insubstantial.
      In conclusion, the unlawfulness of the defendants’ conduct was not
clearly established at the time of the search.


      b.    Pretextual searches
      The plaintiffs also argue that the search was a pretext for uncovering
evidence of criminal wrongdoing, not a valid administrative search. According
to the plaintiffs, the DEA brought Dr. Zadeh’s possible misdeeds before the
Medical Board. A DEA agent then was present during the search. To finish
the story, though, the Medical Board proceeded against Dr. Zadeh. Before
there was a full hearing on the merits, the Board entered an agreed order. In
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                                 No. 17-50518
the order, the panel found that Dr. Zadeh was operating a pain management
clinic without registering it. There is nothing in this record indicating whether
the DEA’s investigation resulted in a criminal prosecution or any other action.
      “Even under a valid inspection regime, the administrative search cannot
be pretextual.” Club Retro, LLC v. Hilton, 568 F.3d 181, 197 (5th Cir. 2009).
It is incorrect, though, to use the label “pretext” simply because of an overlap
between an administrative search and a criminal search. The Burger Court
remarked that “a State can address a major social problem both by way of an
administrative scheme and through penal sanctions.” Burger, 482 U.S. at 712.
To determine whether the search there was constitutional, the Court looked to
whether the administrative scheme really “authorize[d] searches undertaken
solely to uncover evidence of criminality.” Id.
      Similarly, the Supreme Court dismissed a defendant’s argument “that
because the Customs officers were accompanied by a Louisiana State
Policeman, and were following an informant’s tip that a vessel in the ship
channel was thought to be carrying marijuana,” the Government could not rely
on the administrative search exception. United States v. Villamonte-Marquez,
462 U.S. 579, 584 n.3 (1983).
      We have applied these principles to a search of an automobile salvage
yard. United States v. Thomas, 973 F.2d 1152, 1155–56 (5th Cir. 1992). There,
an investigator with the Texas Department of Public Safety tracked a vehicle
to an auto salvage business and there conducted an inventory inspection under
Texas statute.    Id. at 1155.   Even though the inventory inspection was
prompted by suspicion of criminal conduct, the investigator still was entitled
to use information gained during the inspection to obtain a search warrant for
the salvage-yard owner’s residence. Id. “Administrative searches conducted


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                                 No. 17-50518
pursuant to valid statutory schemes do not violate the Constitution simply
because of the existence of a specific suspicion of wrongdoing.” Id. at 1155–56.
        Beck has similar analysis. As here, the administrative search in Beck
was initiated after a tip. Dental Board member Michael Pitcock “stated in his
deposition that information was forwarded to him alleging that Beck had
ordered unusually high volumes of controlled substances.” Beck, 204 F.3d at
632. The Dental Board suspected Beck of violating criminal statutes, and a
law enforcement officer accompanied the board agent in its inspection of the
dental office. Id. The dentist argued that the search was conducted to uncover
criminal wrongdoing and thus was not conducted pursuant to a valid
administrative scheme. Id. at 638. We held that the suspicions of criminal
wrongdoing “did not render the administrative search unreasonable,” citing
Villamonte-Marquez and Thomas. Id. at 639.
        As to Dr. Zadeh, the DEA was closely involved with the Board’s
investigation. Under Burger, though, we look to whether the search that
occurred was under a scheme serving an administrative purpose. The Board’s
purpose is demonstrated by the subsequent administrative action against
Dr. Zadeh.     The search was not performed “solely to uncover evidence of
criminality.” See Burger, 482 U.S. at 698. Thus, the search was not pretextual.


II.     Declaratory Judgment
        Dr. Zadeh argues that the district court erred in abstaining from
deciding the declaratory judgment claims following Younger. Dr. Zadeh asked
the district court to make declaratory judgments on several laws implicating
the Board. The district court did not resolve any.
        “In Younger, the Supreme Court ‘instructed federal courts that the
principles of equity, comity, and federalism in certain circumstances counsel
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                                  No. 17-50518
abstention in deference to ongoing state proceedings.’” Wightman v. Tex.
Supreme Court, 84 F.3d 188, 189 (5th Cir. 1996) (citations omitted). Following
Supreme Court precedent, this court follows “a three-part test describing the
circumstances under which abstention [is] advised: (1) the dispute should
involve an ‘ongoing state judicial proceeding;’ (2) the state must have an
important interest in regulating the subject matter of the claim; and (3) there
should be an ‘adequate opportunity in the state proceedings to raise
constitutional challenges.’” Id. (citation omitted).
      The district court applied the reasoning of one of our unpublished cases,
Perez v. Tex. Med. Bd., 556 F. App’x 341 (5th Cir. 2014). There, we held that
Younger barred the plaintiffs’ suit seeking to enjoin the Board from pursuing
any causes of action against them. Id. at 342–43. We agree with that panel’s
determination that Texas had a strong interest in regulating the practice of
medicine, and the Perez plaintiffs could raise their constitutional challenges in
the state court because the law provided for judicial review of the
administrative decision.     Id. at 342.     Following Perez, the district court
concluded that Dr. Zadeh had an ongoing administrative action pending; the
state had a significant interest in regulating medicine in Texas; and Dr. Zadeh
could appeal his administrative action in state court and raise constitutional
challenges there. Accordingly, the district court abstained from adjudicating
the requests for declaratory relief.
      Dr. Zadeh claims Younger is inapplicable because the Board argued that
the lawsuit did not implicate the underlying investigation. Dr. Zadeh also
argues that there will be no adequate opportunity in the state proceedings to
raise any constitutional challenges. He claims that “[d]octors do not have the
power to file an appeal concerning the findings of fact and conclusions of law
contained in a final decision (but the TMB does).”
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                                      No. 17-50518
         Dr. Zadeh was subject to an ongoing state administrative proceeding,
and that qualifies as a judicial proceeding for this analysis. See Middlesex
Cnty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982). As
we stated in Perez, Texas has a strong interest in regulating the practice of
medicine. Finally, despite plaintiffs’ contrary view, Texas law does permit
judicial review by either party of an administrative decision. 1 “A person who
has exhausted all administrative remedies available within a state agency and
who is aggrieved by a final decision in a contested case is entitled to judicial
review under this chapter.” TEX. GOV’T CODE. § 2001.171.
         The district court did not abuse its discretion in abstaining from deciding
the declaratory judgment claims.


III.     Director Robinson’s potential supervisory capacity liability
         The plaintiffs argue that Robinson should be held liable in her
supervisory capacity. “A supervisory official may be held liable under § 1983
only if (1) he affirmatively participates in the acts that cause the constitutional
deprivation, or (2) he implements unconstitutional policies that causally result
in the constitutional injury.” Gates v. Tex. Dep’t of Protective and Regulatory
Servs., 537 F.3d 404, 435 (5th Cir. 2008). A failure to train claim requires that
the plaintiff show (1) the supervisor’s failure to train; (2) the failure to train
resulted in the violation of the plaintiff’s rights; and (3) the failure to train
shows deliberate indifference. Id. For deliberate indifference, “there must be
‘actual or constructive notice’ ‘that a particular omission in their training



         The plaintiffs note that the administrative law judge in the SOAH proceeding
         1

declined to address the constitutional questions. Even so, all the law requires is that the
issue have been preserved for the appeal to the state court. See Ohio Civil Rights Comm’n v.
Dayton Christian Schs., Inc., 477 U.S. 619, 629 (1986).
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                                  No. 17-50518
program causes . . . employees to violate citizens’ constitutional rights’ and the
actor nevertheless ‘choose[s] to retain that program.’” Porter v. Epps, 659 F.3d
440, 447 (5th Cir. 2011) (citation omitted).
      The plaintiffs argue that Robinson improperly delegated her subpoena
authority to subordinates whose training she knew nothing about. Therefore,
the subpoena did not comply with Texas law because the Executive Director of
the Board is not permitted to delegate her subpoena authority. The district
court did not determine whether the delegation was permissible. “In light of
the express regulatory authority for the delegation, the precedent set by her
predecessors, and the sheer volume of subpoenas issued every year by the
TMB,” Robinson’s actions did not amount to deliberate indifference.
      In Texas administrative law, a rule of statutory construction presumes
that where a statute grants specific authority to a designated public officer,
the legislature intended only that officer to have that authority. Lipsey v. Tex.
Dep’t of Health, 727 S.W.2d 61, 64 (Tex. App.—Austin 1987, writ ref’d n.r.e.).
Still, Lipsey recognized “the authority to ‘subdelegate’ or transfer the assigned
function may be implied and the presumption defeated owing to the nature of
the assigned function, the makeup of the agency involved, the duties assigned
to it, the statutory framework, and perhaps other matters.” Id. at 65.
      In this case, a statute permits the Board to subpoena records. TEX. OCC.
CODE. § 153.007. Section 153.007(b) permits the Board to delegate subpoena
authority “to the executive director or the secretary-treasurer of the board.”
By administrative rule, the executive director may “delegate any responsibility
or authority to an employee of the board.” 22 TEX. ADMIN. CODE § 161.7(c).
      In resolving this issue, we start with the fact the rule articulated in
Lipsey is only a presumption. Even assuming that the plaintiffs could show
that Robinson failed to train her subordinates and that failure resulted in a
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                                No. 17-50518
constitutional violation, Robinson was not deliberately indifferent in
delegating her subpoena authority in light of the fact she was acting pursuant
to the regulations in the same way as her predecessors and the numerous
subpoenas issued each year. To the extent the plaintiffs seek to impose Section
1983 liability on Kirby and Pease through the subdelegation argument, that
law also was not clearly established.
      AFFIRMED.




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                                   No. 17-50518
DON R. WILLETT, Circuit Judge, concurring in part, dissenting in part:
      State investigators, without notice and without a warrant, entered a
doctor’s office and demanded to rifle through the medical records of 16 patients.
Or else. The doctor was not in, and the investigators, after being told that the
doctor contested the subpoena, warned his assistant that if she didn’t produce
the patient files at once, there would be grave repercussions. According to her,
the investigators threatened to suspend the doctor’s medical license. They
demanded compliance—immediately.
      The Fourth Amendment forbids such roughshod rummaging. The
Framers cared deeply about We the People’s right “to be secure in [our]
persons, houses, papers, and effects against unreasonable searches and
seizures.” 1 The Fourth Amendment was the Founding generation’s “response
to the reviled ‘general warrants’ and ‘writs of assistance’ of the colonial era,
which allowed British officers to rummage through homes in an unrestrained
search for evidence of criminal activity.” 2 In fact, outrage over unchecked
searches was “one of the driving forces behind the Revolution itself.” 3
      The majority opinion correctly diagnoses Dr. Zadeh’s injury but refuses
to prescribe a remedy: His rights were violated, but since the law wasn’t clearly
established, Dr. Zadeh loses. I originally agreed with this violation-without-
vindication result. 4
      But deeper study has convinced me that the officials’ constitutional
misstep violated clearly established law, not a previously unknown right. And




      1 U.S. CONST. amend. IV.
      2 Riley v. California, 134 S. Ct. 2473, 2494 (2014).
      3 Id.
      4 Zadeh v. Robinson, 902 F.3d 483, 498 (5th Cir. 2018) (Willett, J., concurring

dubitante).
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                                        No. 17-50518

it has reaffirmed my broader conviction that the judge-made immunity regime
ought not be immune from thoughtful reappraisal.
                                               I
       To rebut the officials’ qualified-immunity defense and get to trial, Dr.
Zadeh must plead facts showing that the alleged misconduct violated clearly
established law. 5 He has done so.
                                               A
       The Supreme Court held 40-plus years ago in See that the Fourth
Amendment requires precompliance review. 6 An administrative subpoena
“may not be made and enforced by the inspector in the field . . . .” 7 Almost 20
years later, the Court in Lone Steer elaborated that although an agency “may
issue an administrative subpoena without a warrant,” it must give the
subpoenaed person an opportunity “to question the reasonableness of the
subpoena . . . by raising objections in an action in district court” before suffering
any penalties for noncompliance. 8 The Court reaffirmed this settled
precompliance-review requirement again just four years ago in Patel. 9
       Here, Texas officials gave Dr. Zadeh no time to question the subpoena’s
reasonableness. That’s a violation. Plain and simple.
                                               B
       But there are exceptions to most every rule. Under the Supreme Court’s
1981 decision in Burger, officials don’t have to give people time to comply if:
           • the business is part of a closely regulated industry;


       5 Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011).
       6 See v. City of Seattle, 387 U.S. 541 (1967).
       7 Id. at 544–45.
       8 Donovan v. Lone Steer, Inc., 464 U.S. 408, 415 (1984).
       9 City of Los Angeles v. Patel, 135 S. Ct. 2443, 2452 (2015) (“[T]he subject of the search

must be afforded an opportunity to obtain precompliance review before a neutral
decisionmaker.”).
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                                      No. 17-50518

           • there’s a substantial government interest;
           • warrantless searches are necessary; and
           • there’s a “constitutionally adequate substitute for a
             warrant.” 10

This search whiffs two requirements. So I agree with the majority opinion: The
Burger exception doesn’t apply.
                                             1
      Medical practices—including pain-management clinics—aren’t “closely
regulated” industries. In both Burger 11 and Patel, 12 the Supreme Court
considered the history of warrantless searches, then-current regulations, and
the public interest. Take Patel. The Court held that hotels aren’t a closely
regulated industry—no history of regular, warrantless searches. 13 Public-
accommodation laws require hotels to serve all paying customers. That just
doesn’t equate to state officials knocking down doors. 14
      Likewise, state officials haven’t historically rummaged through pain-
management clinics without warrants. If anything, it’s the opposite. The law
has consistently protected doctor–patient confidentiality. In 2011, the
Supreme Court in Sorrell noted that “for many reasons, physicians have an
interest in keeping their prescription decisions confidential.” 15 Ten years
earlier, the Court in Ferguson recognized medical patients’ “reasonable
expectation of privacy”—that no one will share their records without
permission. 16




      10 New York v. Burger, 482 U.S. 691, 702–03 (1987).
      11 See id. at 704.
      12 See Patel, 135 S. Ct. at 2454.
      13 Id. at 2455.
      14 Id.
      15 Sorrell v. IMS Health Inc., 564 U.S. 552, 572 (2011).
      16 Ferguson v. City of Charleston, 532 U.S. 67, 78 (2001).

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                                       No. 17-50518

       It’s not just our Nation’s highest court. Lower courts recognize this too.
The district court here emphasized that “warrantless inspections of doctors’
offices” don’t often happen. 17 In 2017, another Texas federal district court
stressed a stark distinction between medicine and “closely regulated”
industries. The court noted that the government has long treated liquor and
guns very differently than doctors. 18
       True, we held in Schiffman that pharmaceuticals are a “pervasively”
regulated industry. 19 But that was in 1978. And the Supreme Court has since
clarified things. As the Court said in Patel, the closely-regulated-industry
exception is very much that—“the exception.” 20 So Schiffman doesn’t control.
       In sum, the law strongly protects privacy in medicine. Pain management
is a medical field. So pain-management clinics aren’t closely regulated.
       Unfortunately, the majority opinion assumes without deciding that pain-
management clinics are closely regulated. In doing so, the majority blurs
constitutional contours. 21 Our legal system serves the public best when it
provides clear rules, consistently applied—bright lines and sharp corners. We
owe clarity to the courts below us, the litigants before us, and the cases beyond
us. Thankfully, our court has at least established that medicine generally isn’t
closely regulated.
                                              2
       Setting aside the “closely regulated” issue, the Burger exception still
doesn’t apply. The laws here aren’t a constitutionally adequate substitute for


       17  Zadeh v. Robinson, No. 1:15-CV-598, Dkt. No. 40, at *10 (W.D. Tex., Apr. 26, 2016),
aff’d, 902 F.3d 483 (5th Cir. 2018).
        18 Barry v. Freshourt, No. H-17-1403, 2017 WL 4682176, at *6–7 (Rosenthal, J.) (S.D.

Tex. Oct. 18, 2017), rev’d on other grounds, 905 F.3d 912 (5th Cir. 2018).
        19 United States v. Schiffman, 572 F.2d 1137, 1142 (5th Cir. 1978).
        20 135 S. Ct. at 2455.
        21 See discussion infra Section III.

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                                      No. 17-50518

a warrant. In Burger, the Court explained that a statute has to notify the public
that the government can search on-demand. And it must limit officer
discretion. 22 These statutes neither notify nor limit. 23
       Our 2000 decision in Beck sheds light on what counts for notice. 24 There,
the Controlled Substances Act explicitly authorized officers to search dental
offices “upon stating [their] purpose[s]” and showing their credentials. 25 That
was clear statutory notice. And so we upheld an on-demand search. In other
words, there had to be notice that no notice is necessary. 26
       Consider our 2001 opinion in Fort too. 27 There, we stamped our approval
on a statute that allowed officers to inspect vehicles “after stating the purpose
of the inspection.” 28 The law put Texas drivers on notice that their cars could
be searched. Eight years later in Club Retro, we again enforced the notice
requirement. 29 That time, a SWAT team had raided a nightclub—replete with
“physical assault, threats at gunpoint, and prolonged detention.” 30 But the



       22  Burger, 482 U.S. at 703 (“[Statutes must] perform the two basic functions of a
warrant: it must advise . . . that the search is being made pursuant to the law and has a
properly defined scope, and it must limit the discretion of inspecting officers.”).
        23 TEX. OCC. CODE § 153.007 (“[T]he board may 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 § 168.052 (allowing the Board to examine “the documents of a
physician practicing at the clinic, as necessary to ensure compliance with this chapter”); 22
TEX. ADMIN. CODE § 179.4 (“Upon the request by the board or board representatives, a
licensee shall furnish to the board copies of medical records . . . within a reasonable time
period . . . .”); 22 TEX. ADMIN. CODE § 195.3 (“The board may inspect a pain management
clinic certified under this chapter, including the documents of a physician practicing at the
clinic, to determine if the clinic is being operated in compliance with applicable laws and
rules.”).
        24 Beck v. Tex. St. Bd. of Dental Exam’rs, 204 F.3d 629, 639 (5th Cir. 2000).
        25 Id. at 639.
        26 Id. (“Thus, [the statute] did not require that prior notice be given.”).
        27 United States v. Fort, 248 F.3d 475, 482 (5th Cir. 2001).
        28 Id. (citing TEX. TRANSP. CODE § 644.104(b)).
        29 Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 200 (5th Cir. 2009).
        30 Id.

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                                       No. 17-50518

supposed authorizing statute notified owners only of periodic fire-safety and
alcohol compliance checks. 31 So we held that the search failed to meet the
notice requirement. 32
       Here, the statutes don’t notify business owners of on-demand searches.
These statutes allow “a reasonable time” to produce records. 33 And they define
“reasonable time” as “fourteen calendar days”; less only if there’s an emergency
or a risk “that the records may be lost, damaged, or destroyed.” 34 That’s not
notice of routine, on-the-spot searches.
       Lastly, the statutes don’t limit officer discretion. The only limits: who
can subpoena things (the Board); 35 who the Board can subpoena (licensees); 36
and what the Board can demand (medical records). 37 But that’s it. Otherwise,
there’s total discretion.
       Thus, the Burger exception doesn’t apply. And so all that’s left to decide
is if the violation was clearly established.
                                               C
       It was. Just last year in Wesby, the Supreme Court explained that
“clearly established” means “settled law.” 38 “[C]ontrolling authority” must



       31 Id.
       32 Id.
       33 TEX. ADMIN. CODE § 179.4(a).
       34 Id.
       35 Id. (“Upon the request by the board or board representatives, a licensee shall furnish

to the board copies of medical records . . . within a reasonable time period . . . .” (emphasis
added)).
       36 Id. (“Upon the request by the board or board representatives, a licensee shall furnish

to the board copies of medical records . . . within a reasonable time period . . . .” (emphasis
added)).
       37 Id. (“Upon the request by the board or board representatives, a licensee shall furnish

to the board copies of medical records . . . within a reasonable time period . . . .” (emphasis
added)).
       38 Wesby, 138 S. Ct. at 589 (2018) (quoting Hunter v. Bryant, 502 U.S. 224, 228 (1991)

(per curiam)).
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                                      No. 17-50518

explicitly adopt the principle; or else there must be “a robust consensus of cases
of persuasive authority.” 39 Mere implication from precedent doesn’t suffice. 40
       What’s more, the Court in Wesby reiterated that the legal principle must
be specific—not general. The rule must “prohibit the officer’s conduct in the
particular circumstances before him.” 41 The Court doesn’t require “a case
directly on point.” 42 But it does require a case “where an officer acting under
similar circumstances . . . violated the Fourth Amendment.” 43
       The Supreme Court in See, 44 Lone Steer, 45 and Patel 46 made clear the
need for precompliance review of administrative subpoenas. That’s controlling
law.
       Summing up: The Board violated Dr. Zadeh’s Fourth Amendment rights.
No exception applies. And the law was clearly established. The state officials
are thus not immune. On this basis alone, Dr. Zadeh deserves his day in court.
                                             II
       Respectfully, I think that the majority opinion is wrong for two reasons.
First, this court shouldn’t determine whether exceptions to violations are
clearly established. Second, even if we should, Dr. Zadeh should win anyway.
                                             A
       The majority concedes that the statutes here don’t limit the discretion of
the inspecting officers as Burger requires. The court also acknowledges that




       39 Id. at 590 (cleaned up) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741–42 (2011)).
       40 Id.
       41 Id.
       42 Id. (quoting al-Kidd, 563 U.S. at 741).
       43 Id. (quoting White v. Pauley, 137 S. Ct. 548, 552 (2017) (per curiam)). But cf.

discussion infra Section III.
       44 387 U.S. at 544–45.
       45 464 U.S. at 415.
       46 135 S. Ct. at 2452.

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                                      No. 17-50518

statutes must provide notice. Yet the court holds that these requirements
weren’t—themselves—clearly established.
      I understand the impulse. After all, qualified immunity is supposed to
protect “all but the plainly incompetent or those who knowingly violate the
law”—that’s what the Supreme Court remarked in Wesby. 47 So if reasonably
competent officers wouldn’t necessarily know that they’re violating the law,
they shouldn’t be liable. For example, the majority says that since we haven’t
yet enforced the limited-discretion requirement, reasonable officials could’ve
thought that the subpoena satisfied Burger. Thus, they wouldn’t necessarily
realize they’re breaking the law.
      But that hyperspecific take snubs the Supreme Court’s time-worn test:
Was there a clearly established violation? 48 Yes, it’s a violation to conduct a
warrantless search without precompliance review. Sometimes there’s an
exception to this test. But not here. No exception applies. And it’s only when
an exception applies that the general rule doesn’t.
                                             B
      Yet even if we should ask whether the Burger exception was clearly
established, Dr. Zadeh still ought to win. Controlling law dictates that there
must be statutory notice.
      Recall Beck. In that case, the law authorized on-demand, warrantless
searches. And so we upheld the search. 49 Don’t forget Fort 50 or Club Retro 51
either, in which we similarly enforced the notice requirement. Then of course
there’s Burger itself. In upholding a warrantless search, the Supreme Court


      47 138 S. Ct. at 589 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
      48 See discussion infra Section III.
      49 204 F.3d at 639.
      50 248 F.3d at 482.
      51 568 F.3d at 200.

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                                      No. 17-50518

emphasized that the statute “set[] forth the scope of the inspection and,
accordingly, place[d] the operator on notice as to how to comply with the
statute.” 52
       Those cases control. They require statutory notice. So the Burger
exception’s notice element is clearly established. And the Texas laws don’t
provide notice for on-demand inspections.
       For that reason, the limited-discretion requirement shouldn’t matter.
The notice requirement would govern. No matter how you shake it, the officials
shouldn’t be immune.
                                            III
       Yet here we are—Dr. Zadeh still loses; there and back again. Everyone
agrees his Fourth Amendment rights were violated. But owing to a legal deus
ex machina—the “clearly established” prong of qualified-immunity analysis—
the violation eludes vindication. At first I agreed with the panel majority that
the government violated the law but not clearly established law. I was wrong.
Beyond this case, though, I must restate my broader unease with the real-
world functioning of modern immunity practice.
       To some observers, qualified immunity smacks of unqualified impunity,
letting public officials duck consequences for bad behavior—no matter how
palpably unreasonable—as long as they were the first to behave badly. Merely
proving a constitutional deprivation doesn’t cut it; plaintiffs must cite
functionally identical precedent that places the legal question “beyond debate”
to “every” reasonable officer. 53 Put differently, it’s immaterial that someone
acts unconstitutionally if no prior case held such misconduct unlawful. This



       52482 U.S. at 711.
       53 Ashcroft, 563 U.S. at 741; see also, e.g., Kisela v. Hughes, 138 S. Ct. 1148, 1153
(2018) (per curiam); Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam).
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current “yes harm, no foul” imbalance leaves victims violated but not
vindicated. Wrongs are not righted, and wrongdoers are not reproached.
       Today the majority opinion says Dr. Zadeh loses because his rights
weren’t clearly established. But courts of appeals are divided—intractably—
over   precisely     what     degree     of   factual    similarity     must     exist.   How
indistinguishable must existing precedent be? On the one hand, the Supreme
Court reassures plaintiffs that its caselaw “does not require a case directly on
point for a right to be clearly established.” 54 On the other hand, the Court
admonishes that “clearly established law must be ‘particularized’ to the facts
of the case.” 55 How to square these abstract instructions? Take Dr. Zadeh.
Effectively, he loses since no previous panel has ever held this exact sort of
search unconstitutional. In day-to-day practice, the “clearly established”
standard is neither clear nor established among our Nation’s lower courts.
       Two other factors perpetuate perplexity over “clearly established law.”
First, many courts grant immunity without first determining whether the
challenged behavior violates the Constitution. 56 They avoid scrutinizing the
alleged offense by skipping to the simpler second prong: no factually analogous
precedent. Forgoing a knotty constitutional inquiry makes for easier sledding,
no doubt. But the inexorable result is “constitutional stagnation” 57—fewer
courts establishing law at all, much less clearly doing so. Section 1983 meets
Catch-22. Plaintiffs must produce precedent even as fewer courts are


       54 Kisela, 138 S. Ct. at 1152 (quoting White v. Pauly, 137 S. Ct. 548, 551 (2017)).
       55 Pauly, 137 S. Ct. at 552 (quoting Anderson, 483 U.S. at 640).
       56 See Pearson v. Callahan, 555 U.S. 223, 227 (2009).
       57 Aaron L. Nielson & Christopher J. Walker, The New Qualified Immunity, 89 S. CAL.

L. REV. 1, 12 (2015) (“Because a great deal of constitutional litigation occurs in cases subject
to qualified immunity, many rights potentially might never be clearly established should a
court skip ahead to the question whether the law clearly established that the officer’s conduct
was unlawful in the circumstances of the case. The danger, in short, is one of constitutional
stagnation.” (cleaned up)).
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producing precedent. Important constitutional questions go unanswered
precisely because no one’s answered them before. Courts then rely on that
judicial silence to conclude there’s no equivalent case on the books. No
precedent = no clearly established law = no liability. An Escherian Stairwell.
Heads government wins, tails plaintiff loses.
       Second, constitutional litigation increasingly involves cutting-edge
technologies. If courts leapfrog the underlying constitutional merits in cases
raising novel issues like digital privacy, then constitutional clarity—matter-of-
fact guidance about what the Constitution requires—remains exasperatingly
elusive. Result: gauzy constitutional guardrails as technological innovation
outpaces legal adaptation.
       Qualified immunity aims to balance competing policy goals: “the need to
hold public officials accountable when they exercise power irresponsibly and
the need to shield officials from harassment, distraction, and liability when
they perform their duties reasonably.” 58 And I concede that the doctrine enjoys
special favor at the Supreme Court, which seems untroubled by any one-
sidedness. 59 The Court recently declined to take up a closely watched case
challenging the warrantless strip search of a four-year-old preschooler. 60 A
strange-bedfellows alliance of leading scholars and advocacy groups of every
ideological stripe—perhaps the most diverse amici ever assembled—had joined
forces to urge the Court to fundamentally reshape immunity doctrine. Even in



       58 Pearson, 555 U.S. at 231 (flagging these “two important interests”).
       59 That said, four sitting Justices “have authored or joined opinions expressing
sympathy” with various doctrinal, procedural, and pragmatic critiques of qualified immunity.
Joanna C. Schwartz, The Case Against Qualified Immunity, 93 NOTRE DAME L. REV. 1797,
1800 (2018) (including Justices Thomas, Ginsburg, Breyer, and Sotomayor, plus recently
retired Justice Kennedy).
       60 Doe v. Woodard, 912 F.3d 1278 (10th Cir. 2019), cert. denied, No. 18-1173, 2019 WL

1116409, at *1 (May 20, 2019).
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this hyperpartisan age, there is a growing, cross-ideological chorus of jurists 61
and scholars 62 urging recalibration of contemporary immunity jurisprudence.
       Indeed, it’s curious how this entrenched, judge-created doctrine excuses
constitutional violations by limiting the statute Congress passed to redress
constitutional violations. 63 Count me with Chief Justice Marshall: “The
government of the United States has been emphatically termed a government
of laws, and not of men. It will certainly cease to deserve this high appellation,
if the laws furnish no remedy for the violation of a vested legal right.” 64


       61  See, e.g., Kisela, 138 S. Ct. at 1162 (Sotomayor, J., dissenting) (fearing the Supreme
Court’s “one-sided approach to qualified immunity transforms the doctrine into an absolute
shield for law enforcement officers, gutting the deterrent effect of the Fourth Amendment”
and signaling “that palpably unreasonable conduct will go unpunished”); Ziglar v. Abbasi,
137 S. Ct. 1843, 1872 (2017) (Thomas, J., concurring in part and concurring in the judgment)
(“In an appropriate case, we should reconsider our qualified immunity jurisprudence.”);
Thompson v. Clark, No. 14-CV-7349, 2018 WL 3128975, at *11 (E.D.N.Y. June 26, 2018)
(Weinstein, J.) (“The Supreme Court’s recent emphasis on shielding public officials and
federal and local law enforcement means many individuals who suffer a constitutional
deprivation will have no redress . . . .”).
        62 Last year’s symposium issue of the Notre Dame Law Review gathers several

scholarly essays that scrutinize qualified immunity and discuss potential refinements given
mounting legal and empirical criticism. Symposium, The Future of Qualified Immunity, 93
NOTRE DAME L. REV. 1793 (2018); see also, e.g., William Baude, Is Qualified Immunity
Unlawful?, 106 CALIF. L. REV. 45, 88 (2018) (claiming the doctrine “lacks legal justification,
and the Court’s justifications are unpersuasive”); Joanna C. Schwartz, How Qualified
Immunity Fails, 127 YALE L.J. 2, 70 (2017) (concluding that “the Court’s efforts to advance
its policy goals through qualified immunity doctrine has been an exercise in futility”); John
C. Jeffries, Jr., What’s Wrong with Qualified Immunity?, 62 FLA. L. REV. 851, 869 (2010)
(“Today, the law of qualified immunity is out of balance . . . . The Supreme Court needs to
intervene, not only to reconcile the divergent approaches of the Circuits but also, and more
fundamentally, to rethink qualified immunity and get constitutional tort law back on track.”).
The essays in Notre Dame Law Review feature lively disagreement, including a nuanced pro-
immunity piece by Professors Aaron Nielson and Christopher Walker, A Qualified Defense of
Qualified Immunity, that addresses two principal anti-immunity arguments—that qualified
immunity (1) is unlawful as a matter of positive law and (2) fails to advance its purported
policy objectives. Aaron L. Nielson & Christopher J. Walker, A Qualified Defense of Qualified
Immunity, 93 NOTRE DAME L. REV. 1853 (2018).
        63 Cf. United States v. Ugalde, 861 F.2d 802, 810 (5th Cir. 1988) (“We must ensure

that for every right there is a remedy.” (citing Marbury, 5 U.S. at 163)).
        64 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803). In Little v. Barreme, Chief

Justice Marshall’s opinion declined to “excuse from damages” Captain George Little for
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      Doctrinal reform is arduous, often-Sisyphean work. Finding faults is
easy; finding solutions, less so. But even if qualified immunity continues its
forward march and avoids sweeping reconsideration, it certainly merits a
refined procedural approach that more smartly—and fairly—serves its
intended objectives.




unlawfully capturing a Danish vessel, though it was “seized with pure intention.” 6 U.S. (2
Cranch) 170, 179 (1804).
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