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

                                 No. 17-50518                          FILED
                                                                 August 31, 2018
                                                                  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


Before JOLLY, SOUTHWICK, and WILLETT, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
      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.
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                                 No. 17-50518
                 FACTUAL AND PROCEDURAL BACKGROUND
      Plaintiff 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
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.
      Dr. Zadeh was not at his office when the investigators arrived, so the
investigators presented the subpoena to his medical assistant. According to
the plaintiffs, the medical assistant requested time to seek advice from legal
counsel, but the investigators told her that failure to turn the records over
immediately could result in the loss of Dr. Zadeh’s medical license.         She
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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 the 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.
      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
plaintiffs’ 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
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
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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.


                                   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.




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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
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
been faced with a challenge to a subpoena instanter executed by the Texas
Medical Board before.    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
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                                  No. 17-50518
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,
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 address whether the Board’s use of administrative
subpoenas satisfied the Burger criteria because the issue was not raised until
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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 was
raised here. Thus, we must answer 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,
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
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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
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; 22 TEX. ADMIN.
CODE §§ 195.2, 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 that is relevant but not dispositive. 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
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liquor industry long subject to close supervision and inspection,” the Court
applied the rule from See to conclude that the Fourth 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. 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. We
examine that possibility.
      We look again at the extent of the regulation of the prescription of
controlled substances. Although the Board has not identified a Texas law or
regulation that would put all doctors on notice that they are subject to
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warrantless inspections, the Board did identify regulations that put doctors
who operate pain management clinics on notice that their offices can be
inspected. See TEX. OCC. CODE §§ 168.101, 168.052; 22 TEX. ADMIN. CODE
§§ 195.2, 195.3. Further, we have held that “the pharmaceutical industry is a
‘pervasively regulated business’” because “[d]ealers in drugs, like dealers in
firearms, are required to be federally licensed.” United States v. Schiffman,
572 F.2d 1137, 1142 (5th Cir. 1978). “The dealer accepts the license knowing
that [a statute] authorizes inspection of his business.” Id. “Inspections are
essential to the federal regulatory scheme to ensure that drugs are distributed
only through ‘regular channels’ and not diverted to illegal uses.” Id. The same
concerns exist here.
      There is a strong case that doctors who operate pain management clinics
are engaging in a closely regulated industry. Dr. Zadeh, though, had not
registered his clinic as a pain management clinic. How that fact might affect
the analysis we leave open. Rather than considering whether the volume of
his business in that specialty would itself affect his expectations of privacy and
otherwise place him in the closely regulated category, we decline to resolve this
question and look at other considerations.


            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 Burger criteria.     There is no meaningful
dispute in this case 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. Our analysis of
whether the statutory scheme is a proper substitute for a search warrant starts
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with identifying the search authority claimed by the Board: its subpoena
authority and its authority 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 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).
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.
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      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 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.
22 TEX. ADMIN. CODE § 195.3(b).
      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.   Requirement of clearly established law for qualified
                   immunity
      We have concluded that there was a violation of Dr. Zadeh’s
constitutional rights. Even so, these defendants are entitled to summary



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judgment unless the fact that their actions violated his constitutional rights
was “clearly established at the time” of the search. Howards, 566 U.S. at 664.
      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
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
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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 urge that Beck is “patently distinguishable.” Any possible
distinction, though, must be viewed through the requirement 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).
      Thus, it was not for these Medical Board investigators to try to resolve
whether what was permitted for the Dental Board would not be permitted
under the different statutes and regulations applicable to them. 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 have
decided 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.




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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.
      The plaintiffs also argue the defendants did not follow the statutory
scheme and therefore caselaw in which the legal requirements for the search
were followed is inapplicable. Regardless of the legal argument, the factual
basis for it was rejected by the district court.     It found only meaningless
deviations from search protocols. That finding is not clearly erroneous.
      Thus, 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
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.
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      “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
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
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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
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
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                                  No. 17-50518
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).”
      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




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                                      No. 17-50518
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
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 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
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
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 dubitante:
       The court is right about Dr. Zadeh’s rights: They were violated.
       But owing to a legal deus ex machina—the “clearly established law”
prong of qualified-immunity analysis—the violation eludes vindication. I write
separately to register my disquiet over the kudzu-like creep of the modern
immunity regime. Doctrinal reform is arduous, often-Sisyphean work. And the
entrenched, judge-made doctrine of qualified immunity seems Kevlar-coated,
making even tweak-level tinkering doubtful. But immunity ought not be
immune from thoughtful reappraisal. 1
                                        *      *       *
       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. 2 Put differently, it’s immaterial that someone acts
unconstitutionally if no prior case held such misconduct unlawful.
       Today’s case applies prevailing immunity precedent (as best we can
divine it): Dr. Zadeh loses because no prior decision held such a search
unconstitutional. 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



       1  “[Four] of the Justices currently on the Court 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).
        2 Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011); 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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                                       No. 17-50518
to be clearly established.” 3 On the other hand, the Court admonishes that
“clearly established law must be ‘particularized’ to the facts of the case.” 4 But
like facts in like cases is unlikely. And this leaves the “clearly established”
standard 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. 5 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.
But the inexorable result is “constitutional stagnation” 6—fewer courts
establishing law at all, much less clearly doing so. 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: blurred
constitutional contours as technological innovation outpaces legal adaptation.
       Section 1983 meets Catch-22. Plaintiffs must produce precedent even as
fewer courts are producing precedent. Important constitutional questions go
unanswered precisely because those questions are yet unanswered. Courts
then rely on that judicial silence to conclude there’s no equivalent case on the




       3 Kisela, 138 S. Ct. at 1152 (quoting White v. Pauly, 137 S. Ct. 548, 551 (2017)).
       4 Pauly, 137 S. Ct. at 552 (quoting Anderson, 483 U.S. at 640).
       5 See Pearson v. Callahan, 555 U.S. 223, 227 (2009).
       6 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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                                       No. 17-50518
books. No precedent = no clearly established law = no liability. An Escherian
Stairwell. Heads defendants win, tails plaintiffs lose.
       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.” 7 The current “yes harm, no
foul” imbalance leaves victims violated but not vindicated; wrongs are not
righted, wrongdoers are not reproached, and those wronged are not redressed.
It is indeed curious how qualified immunity excuses constitutional violations
by limiting the statute Congress passed to redress constitutional violations. 8
                                       *      *      *
       Qualified immunity aims to balance competing policy goals. 9 And I
concede it enjoys special favor at the Supreme Court, which seems untroubled
by any one-sidedness. Even so, I add my voice to a growing, cross-ideological




       7  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
unlawfully capturing a Danish vessel, though it was “seized with pure intention.” 6 U.S. (2
Cranch) 170, 179 (1804).
        8 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)).
        9 The Supreme Court has flagged “two important interests—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.”
Pearson, 555 U.S. at 231.
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                                        No. 17-50518
chorus of jurists 10 and scholars 11 urging recalibration of contemporary
immunity jurisprudence and its “real world implementation.” 12




       10  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 . . . .”).
        11 The most recent issue of the Notre Dame Law Review gathers several scholarly

essays that carefully examine qualified immunity and discuss potential refinements in light
of 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.”).
        12 South Dakota v. Wayfair, Inc., 138 S. Ct. 2080, 2097 (2018).

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