                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                               Nos. 05-1780/3303
                                 ___________

Missouri Protection & Advocacy        *
Services,                             *
                                      *
           Appellee/Cross-Appellant, *
                                      *      Appeals from the United States
     v.                               *      District Court for the
                                      *      Western District of Missouri.
Missouri Department of Mental Health; *
Dorn Schuffman, Director of the       *
Department of Mental Health,          *
                                      *
           Appellants/Cross-          *
           Appellees.                 *

                                   __________

                             Submitted: February 13, 2006
                                Filed: May 10, 2006
                                 ___________

Before RILEY, MELLOY, and BENTON, Circuit Judges.
                            ___________

RILEY, Circuit Judge.

       This appeal asks whether the Protection and Advocacy for Mentally Ill
Individuals Act (PAMII), 42 U.S.C. §§ 10801-10851, preempts a Missouri law which
protects from disclosure certain medical peer review committee reports, Mo. Rev.
Stat. § 537.035.4, and, if so, whether that preemption was not clearly established,
thereby immunizing the Missouri state official (in this case, Missouri Department of
Mental Health (DMH) Director Dorn Schuffman (Schuffman)) who concluded the
Missouri law was not preempted. Relying on PAMII’s plain language and then-Judge,
now-Associate Justice, Alito’s decision for the Third Circuit in Pennsylvania
Protection & Advocacy, Inc. v. Houstoun, 228 F.3d 423, 427-28 (3d Cir. 2000), we
affirm the district court1 and hold (1) PAMII preempts Mo. Rev. Stat. § 537.035.4, and
(2) given the legal uncertainty before Schuffman at the time he concluded Mo. Rev.
Stat. § 537.035.4 was not preempted, Schuffman is entitled to qualified immunity
from Missouri Protection and Advocacy Services’s (MOPAS) suit under 42 U.S.C.
§ 1983.

I.    BACKGROUND
      MOPAS sought a Mortality and Morbidity Report from DMH following a
patient’s death at a Missouri State Hospital. Counsel for DMH and Schuffman
refused to produce the report, stating the report was confidential. MOPAS sued DMH
and Schuffman, seeking (1) a declaratory judgment that PAMII preempts Missouri
law; (2) an injunction to produce the report; and (3) attorney fees under 42 U.S.C.
§§ 1983 and 1988, claiming Schuffman violated clearly established law. In separate
orders on the parties’ cross-motions for summary judgment, the district court held
(1) PAMII preempts state law, thus DMH must produce the report; and (2) Schuffman
did not violate a clearly established right, thus MOPAS’s section 1983 claim was
dismissed and MOPAS was not entitled to attorney fees. Both parties appeal.

II.   DISCUSSION
      We review de novo a district court’s grant of summary judgment, applying the
same standard as the district court, and we may affirm on any ground supported by the
record. Haas v. Kelly Servs., Inc., 409 F.3d 1030, 1034 (8th Cir. 2005).




      1
      The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.

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       A.    PAMII Preemption
       PAMII, enacted in 1986, authorizes certain independent organizations (referred
to in PAMII as “eligible systems”) such as MOPAS to monitor and protect the rights
of the mentally ill. Eligible systems fulfill this role, in part, by accessing certain
records in order to investigate incidents involving mentally ill individuals. 42 U.S.C.
§ 10805(a)(4)(A) (providing access to “all records of . . . any individual”). There is
no dispute the records referenced in section 10805(a)(4)(A) include the medical peer
review report at issue here. See id. § 10806(b)(3)(A) (“‘[R]ecords’ includes reports
prepared by any staff of a facility rendering care and treatment or reports prepared by
an agency charged with investigating reports of incidents of abuse, neglect, and injury
occurring at such facility that describe incidents of abuse, neglect, and injury
occurring at such facility and the steps taken to investigate such incidents.”); see also
Houstoun, 228 F.3d at 426-27.

       Under Missouri law, however, reports prepared by “peer review committees . . .
concerning the health care provided any patient are privileged and shall not be subject
to discovery, subpoena, or other means of legal compulsion for their release to any
person or entity.” Mo. Rev. Stat. § 537.035.4. Thus, an actual conflict exists between
PAMII and Missouri law regarding MOPAS’s access to peer review reports.

      The issue in this case, therefore, is whether PAMII preempts Missouri’s law
protecting healthcare facilities from disclosing peer review reports. PAMII’s plain
language affords the answer by specifically providing a grace period of up to two
years before PAMII preempts such state laws:

             If the laws of a State prohibit an eligible system from obtaining
      access to the records of individuals with mental illness in accordance
      with section 10805(a)(4) of this title and this section, section 10805(a)(4)
      of this title and this section shall not apply to such system before–
             (i) the date such system is no longer subject to such a prohibition;
             or

                                          -3-
             (ii) the expiration of the 2-year period beginning on May 23,
             1986, whichever occurs first.

42 U.S.C. § 10806(b)(2)(C). By limiting PAMII’s application regarding records
access in deference to state prohibitions only before an express period,
section 10806(b)(2)(C) effectively indicates section 10805(a)(4) applies and requires
access after the grace period has passed.

        Despite this plain language, DMH argues Congress did not intend to preempt
state laws protecting peer review documents. DMH claims this congressional intent
is evidenced by House and Senate committee reports during PAMII’s 1991
reauthorization, stating “[i]t is the Committee’s intent that the PAMII Act does not
preempt State law regarding disclosure of peer review/medical review records relating
to the proceedings of such committees.” H.R. Rep. No. 102-319, at 6, reprinted in
1991 U.S.C.C.A.N. 777, 782; see also S. Rep. No. 102-114, at 5. (containing virtually
identical language). DMH also relies on a Department of Health and Human Services
(DHHS) 1998 regulation purporting to implement PAMII’s reauthorization, stating
that “nothing in this section is intended to preempt State law protecting records
produced by medical care evaluation or peer review committees.” 42 C.F.R.
§ 51.41(c)(4).

       Because PAMII’s language is unambiguous, we see no reason to resort to
congressional committee reports as interpretive devices. See United States v. Maswai,
419 F.3d 822, 824 (8th Cir. 2005) (“Only if the statute is ambiguous do we look to the
legislative history to determine Congress’s intent.” (quoting United States v. Smith,
171 F.3d 617, 620 (8th Cir. 1999))), cert. denied, 126 S. Ct. 1418 (2006). Even were
we to mine the 1991 reports for meaning, any unearthed nuggets would prove
pyritical, for the reports’ subject, the 1991 reauthorization bill, was enacted without
amending PAMII regarding record access. See Protection and Advocacy for Mentally



                                         -4-
Ill Individuals Amendments Act of 1991, Pub. L. No. 102-173, 105 Stat. 1217; see
also Houstoun, 228 F.3d at 427-28.

        Regarding DHHS’s PAMII regulatory implementation, like Judge Alito’s
unanimous Third Circuit panel, we conclude “[t]he interpretation of PAMII set out in
42 C.F.R. § 51.41(c)(4) does not represent a reasonable interpretation of the statute,
and we must therefore reject it.” Houstoun, 228 F.3d at 427 (citing Chevron, U.S.A.,
Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984)); see also Ctr. for
Legal Advocacy v. Hammons, 323 F.3d 1262, 1271 (10th Cir. 2003). Reducing the
statute’s preemptive force would require a legislative change to the plain language of
the statutory text. Such a change cannot “be achieved by means of a regulation.”
Houstoun, 228 F.3d at 428.

       For the reasons stated, we affirm the district court and hold, to the extent Mo.
Rev. Stat. § 537.035.4 conflicts with PAMII, PAMII expressly preempts Missouri law.
See Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461
U.S. 190, 203 (1983) (declaring “within Constitutional limits Congress may preempt
state authority by so stating in express terms”).

       B.     Qualified Immunity and Attorney Fees
       MOPAS claims Schuffman’s decision not to disclose the requested peer review
report violated clearly established law, thus DMH and Schuffman are liable under 42
U.S.C. § 1983.2 A state official like Schuffman is protected by qualified immunity


      2
        Following MOPAS’s complaint seeking declaratory and injunctive relief under
PAMII, as well as attorney fees under section 1988 based on its section 1983 claim,
the parties filed cross-motions for summary judgment first addressing MOPAS’s
claims under PAMII. After the district court granted MOPAS’s motion, the parties
then filed motions on MOPAS’s section 1983 claim. The district court held
MOPAS’s motion regarding section 1983 was moot to the extent it sought injunctive
relief, but was not moot to the extent it sought attorney fees. DMH now claims

                                          -5-
from a section 1983 claim “unless [his] alleged conduct violated clearly established
federal constitutional or statutory rights of which a reasonable person in [his]
position[] would have known.” See Wright v. Rolette County, 417 F.3d 879, 884 (8th
Cir. 2005) (citation omitted), cert. denied, Sims v. Wright,126 S. Ct. 1338 (2006).

       We previously concluded Schuffman violated MOPAS’s statutory right of
access to medical peer review reports under PAMII. We must therefore determine
whether that right was clearly established. Id. (citation omitted). For a 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). That is to say, “in the light of
pre-existing law the unlawfulness must be apparent” to the official. Id. (citation
omitted).

       At the time of Schuffman’s decision, two appellate courts had analyzed PAMII
preemption with disparate results. The Third Circuit found PAMII preempted a
conflicting state law, see Houstoun, 228 F.3d at 428, while the New Hampshire
Supreme Court, relying on the legislative history and the DHHS regulation described
supra, found the opposite, see Disabilities Rights Ctr., Inc. v. Comm’r, N.H. Dep’t of
Corr., 732 A.2d 1021, 1023-24 (N.H. 1999).3


MOPAS’s second motion was moot and barred by res judicata and collateral estoppel
principles. We disagree. While it is unclear why MOPAS did not brief the attorney
fees issue in its original motion for summary judgment, it was not error or an abuse
of discretion for the district court to address the distinct claims, both of which were
included in MOPAS’s complaint, in separate summary judgment orders. See Griffin
v. Super Valu, 218 F.3d 869, 870 (8th Cir. 2000) (“Absent an abuse of discretion, we
will not interfere with the district court’s management of its docket.” (citation
omitted)).

      3
       Following Schuffman’s decision, the Tenth Circuit also ruled on this issue,
holding, like the Third Circuit, PAMII preempted a conflicting state law. See
                                     -6-
       Standing before these divergent decisions, Schuffman followed the New
Hampshire Supreme Court rather than the Third Circuit.4 Given the fact no Supreme
Court, Missouri, or Eighth Circuit case had yet decided the issue, we cannot say
Schuffman’s decision was unreasonable under the circumstances. See McMorrow v.
Little, 109 F.3d 432, 435 (8th Cir. 1997) (“Because there is no applicable North
Dakota precedent and a split in the decisions by other courts, we cannot conclude that
the law was well established and we hold that the constitutional right that McMorrow
claims the officials violated was not clearly established.”). We recognize when one
faces an unsettled legal issue, determining a governing legal standard can be quite
hairy; it mires one in conflicting cases, each presented by reasonable jurists
interpreting the applicable rule of law. In sum, we hold MOPAS’s PAMII-based
statutory right to the requested peer review report was not clearly established such that
a reasonable person in Schuffman’s position at the time would have known following
Mo. Rev. Stat. § 537.035.4 and not disclosing the report violated 42 U.S.C. §
10805(a)(4)(A).

III.   CONCLUSION
       For the reasons stated, we conclude PAMII preempts Mo. Rev. Stat.
§ 537.035.4, and PAMII’s preemptive force was not so clearly established that
Schuffman’s determination to the contrary was unreasonable. Accordingly, we affirm
the district court’s summary judgment orders.
                           ______________________________




Hammons, 323 F.3d at 1273.
       4
       The record does not actually reflect how Schuffman made his decision or what
law he relied on when deciding to withhold the records.
                                         -7-
