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

                                                 FILED
                                                                         September 2, 2009

                                     No. 09-60170                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



DEBORAH ELLIS, ET AL

                                                   Plaintiffs - Appellants
v.

MISSISSIPPI DEPARTMENT OF HEALTH, ET AL

                                                   Defendants - Appellees




                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                              USDC No. 4:07-CV-81


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Plaintiffs brought suit against the Mississippi Department of Health and
thirteen of its employees in their official and individual capacities alleging
constitutional violations stemming from three separate warrantless searches of
the Susie M. Brooks Child Care Facility by the Mississippi Department of
Health (MSDH). The searches were conducted pursuant to Mississippi statute




       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                        No. 09-60170

permitting inspections of child care facilities.1 The district court granted the
defendants’ motion to dismiss under Rule 12(b)(6) on the grounds of qualified
immunity and denied the plaintiffs’ motion for reconsideration. The plaintiffs
appeal the district court’s ruling dismissing the claims against the defendants
in their individual capacities only. For the reasons set forth below, we agree
with the district court and affirm.
      We review a district court’s decision on a 12(b)(6) motion to dismiss de
novo, “accepting all well-pleaded facts as true and viewing those facts in the
light most favorable to the plaintiff.” 2 Likewise, the review of a motion to alter
or amend judgment under Rule 59(e) is reviewed de novo to the extent that the
ruling was a reconsideration of a question of law.3
      When, as in this case, a defendant raises the defense of qualified immunity
the plaintiff must satisfy a two-prong test: “First, he must claim that the
defendants committed a constitutional violation under current law. Second he
must claim that the defendants’ actions were objectively unreasonable in light
of the law that was clearly established at the time of the actions complained of.” 4
The district court rightfully found that the searches were permitted under New
York v. Burger, which permitted administrative searches of pervasively
regulated industries if they met certain criteria.5                Thus there was not a
constitutional violation under current law.




      1
          M ISS. C ODE A NN. § 43-20-15.
      2
          Stokes v. Gann, 498 F.3d 483, 484 (5th Cir. 2007).
      3
          DeCarlo v. Bonus Stores, Inc., 512 F.3d 173, 175 (5th Cir. 2007).
      4
          Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009) (citations omitted).
      5
          482 U.S. 691 (1987).

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                                              No. 09-60170

       Plaintiffs first ask us to overrule Burger. We recognize this argument is
made to preserve the issue for appeal as this court is bound by Supreme Court
precedent.6
       In the alternative, plaintiffs claim that the licensing laws do not meet the
standards of Burger as they do not provide an adequate substitute for a warrant.
Under Burger, a warrantless administrative search of a pervasively regulated
business is constitutionally permitted if: 1) there is a substantial government
interest that informs the regulatory scheme pursuant to which the inspection is
made; 2) the inspection is necessary to further the regulatory scheme; and 3) the
statutory or regulatory scheme provides a constitutionally adequate substitute
for a warrant.7 The plaintiffs claim the third prong of this test is not met as the
statute permits inspections by the agency “as often as deemed necessary.” 8 The
district court’s analysis on this issue is thorough and correct. The statutes
provided notice to licensed facilities of possible inspections and the agency
officials were limited to searches within the scope of their narrowly defined
duties.9 Under Burger and this court’s subsequent applications, the searches
were constitutionally adequate.10



       6
           Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989)
       7
           U.S. v. Castelo, 415 F.3d 407, 409-10 (5th Cir. 2005) (citing Burger, 482 U.S. at 702-
03).
       8
       M     ISS .   CODE ANN . § 43-20-15.
       9
           Id.
       10
          See United States v. Castelo, 415 F.3d at 411 (discussing limitations on searches by
Mississippi Department of Transportation officials); see also Beck v. Texas State Bd. of Dental
Examiners, 204 F.3d 629 (5th Cir. 2000). The plaintiffs’ claim that the holding of Beck turned
on the fact that language stating searches were permitted “on demand” had not yet been added
to the statute at issue. The plaintiffs misread the opinion. Rather, the opinion was merely
careful to point out which language would be considered as there had been subsequent
amendments. It did not suggest that the later addition of “on demand” would have led to a
different outcome.

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                                 No. 09-60170

      Additionally, even if this were a close case, the district court was correct
in finding that the plaintiffs had not carried the burden of proof in
demonstrating that the agency employees’ actions were objectively unreasonable.
      The district court’s rulings are AFFIRMED.




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