     Case: 17-20726       Document: 00514669243         Page: 1    Date Filed: 10/04/2018




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


                                      No. 17-20726
                                                                                 FILED
                                                                           October 4, 2018
                                                                            Lyle W. Cayce
DOCTOR GENE N. BARRY,                                                            Clerk

               Plaintiff - Appellee

v.

SCOTT M. FRESHOUR; BELINDA WEST; MARI ROBINSON; ANNE
RAUCH; MARY CHAPMAN; DEBBI HENNEKE,

               Defendants - Appellants


                   Appeal from the United States District Court
                        for the Southern District of Texas




Before SMITH, CLEMENT, and COSTA, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
       Plaintiff Gene Barry is a physician licensed to practice medicine in
Texas, who works part-time at the Red Bluff Clinic in Pasadena. 1 Defendants
Scott Freshour, Belinda West, Mari Robinson, Anne Rauch, Mary Chapman,
and Debbi Henneke are all employees of the Texas Medical Board (“TMB”)
serving in various roles.




       1 As this case comes to us on appeal from a motion to dismiss, we rely on the verified
complaint for an account of the facts. See Stokes v. Gann, 498 F.3d 483, 484 (5th Cir. 2007)
(per curiam).
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                                       No. 17-20726
       On May 7, 2015, a TMB employee signed an administrative subpoena
instanter 2 on behalf of Mari Robinson, the executive director for TMB. The
subpoena targeted “Barry . . . and/or Records Custodian” at the Red Bluff
Medical Clinic, requiring them “to personally appear . . . before the [TMB], and
. . . provide to [the TMB] the documents” listed in an attachment. The attached
list included medical and billing records concerning Barry’s patients.
       TMB investigators Rauch, Chapman, West, and Henneke then arrived
at the clinic, accompanied by U.S. Drug Enforcement Administration (“DEA”)
agents, Texas Department of Public Safety officers, and Texas Board of
Nursing investigators. They demanded that the identified records be handed
over immediately. Barry and his attorney, whom he had called to the clinic,
refused to consent, prompting some of the officials to leave. But Rauch stayed,
insisting that she speak with Freshour, TMB’s general counsel, before deciding
whether to go. Barry’s attorney then called Freshour, who refused to order the
investigators to leave.
       The investigators then informed the Clinic’s Administrator—who also
served as its records custodian—that “she could be detained by [the
Department of Public Safety]” or that “TMB investigators would merely go
through all of the clinic’s files instead.” After this statement, the Administrator
decided to comply. The Administrator delivered stacks of files to the
investigators, who, in turn, “sat on the floor and [went] through [the] files” with
a Department of Public Safety officer. Barry alleges that, contrary to the
subpoena’s terms, the investigators “did not randomly choose” the records, but




       2The subpoena instanter is defined by the Texas Administrative Code as a subpoena
requiring immediate compliance. Specifically, the regulation provides that “[i]f immediate
production is not made in compliance with the subpoena, the board, acting through the
attorney general, may file suit to enforce the subpoena in a district court in Travis County.”
22 Tex. Admin. Code § 195.3(f).
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                                   No. 17-20726
instead “looked through each file in the stack[s] . . . and cherry-picked only the
files . . . they believed to be incomplete or deficient.”
      Barry filed suit on May 6, 2017, seeking relief under 42 U.S.C. § 1983
and alleging a violation of his Fourth Amendment rights. On September 11,
2017, the defendants moved to dismiss, arguing (in pertinent part) that Barry
lacked standing to raise his claims and that the state officials were entitled to
qualified immunity. The district court denied the motions as to those grounds
on October 18, 2017, and the defendants timely appealed.
      The Supreme Court has long held that a claimant alleging a Fourth
Amendment violation “must have a cognizable Fourth Amendment interest”—
a concept known as “Fourth Amendment standing.” Byrd v. United States, 138
S. Ct. 1518, 1530 (2018). This is so because “Fourth Amendment rights are
personal rights which . . . may not be vicariously asserted.” Rakas v. Illinois,
439 U.S. 128, 133–34 (1978) (quoting Alderman v. United States, 394 U.S. 165,
174 (1969), and collecting cases). In other words, “the application of the Fourth
Amendment depends on whether the person invoking its protection can claim
a justifiable, a reasonable, or a legitimate expectation of privacy that has been
invaded by government action.” Smith v. Maryland, 442 U.S. 735, 740 (1979)
(internal quotation marks omitted). This is the plaintiff’s burden to prove.
Rawlings v. Kentucky, 448 U.S. 98, 104 (1980). The Supreme Court has
articulated the Fourth Amendment interest as a “reasonable expectation of
privacy,” defined by “a source outside of the Fourth Amendment, either by
reference to concepts of real or personal property law or to understandings that
are recognized and permitted by society.” United States v. Jones, 565 U.S. 400,
408 (2012) (quoting Minnesota v. Carter, 525 U.S. 83, 88 (1998)).
      Barry’s attempt to establish such an interest is unavailing. Barry neither
owns nor operates the Red Bluff Clinic where the records were filed. He is not
its records custodian. Instead, he merely works there on a part-time basis.
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                                  No. 17-20726
Barry does not argue that he has an ownership or possessory interest in the
records seized. Indeed, he appears to concede as much on appeal. Moreover,
Barry has not alleged that the TMB conducted a search of any area in which
he had a privacy interest. Cf. Mancusi v. DeForte, 392 U.S. 364, 367–68 (1968)
(when records seized do not belong to an individual, Fourth Amendment
standing is only possible if the search itself violated “a reasonable expectation
of freedom from governmental intrusion”).
      Instead, Barry relies on a list of pure privacy interests in the information
the records contain. All but one, as he concedes, are specifically tied to his
patients’ privacy interests in their own medical records. To the extent such
interests are constitutionally cognizable, they cannot be asserted by Barry.
Rakas, 439 U.S. at 133–34. The sole remaining interest he proffers relies on a
passing assumption by the Supreme Court when it discussed the merit of a
state’s justification for a statute regulating speech: Sorrell v. IMS Health Inc.,
564 U.S. 552, 572 (2011). Sorrell is a First Amendment case, which merely
observes that states have a legitimate interest in protecting the privacy of
medical records on behalf of doctors. See id. at 571–72. We decline to infer from
Sorrell a reasonable expectation of privacy in patient records on the part of
doctors against the TMB under the Fourth Amendment.
      The district court concluded Barry had standing because the records
were sought in a proceeding against him and the subpoena was addressed to
him personally (though it was also addressed to the records custodian). But the
Supreme Court has rejected a “target” approach to Fourth Amendment
standing that would look to whether the evidence obtained could be used
against the person seeking to challenge the search. Rakas, 439 U.S. at 132–38.
It has instead focused on whether the person raising the Fourth Amendment
claim has a protected property or privacy interest in the place or things


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                                        No. 17-20726
searched. For the reasons we have discussed, Barry does not have such an
interest.
       Accordingly, Barry has failed to show a sufficient interest to assert a
Fourth Amendment claim. Without a cognizable interest in the subpoenaed
records, Barry cannot assert a Fourth Amendment violation. His claim must
be dismissed. 3 Accordingly, we REVERSE the district court and RENDER
judgment in favor of the defendants.




       3  We note that the constitutionality of TMB’s administrative searches has been a
subject of significant litigation of late. Indeed, this court recently held that the agency’s use
of its subpoena authority to gain immediate access to medical records violated the Fourth
Amendment. See Zadeh v. Robinson, No. 17-50518, 2018 WL 4178304, at **3–6 (5th Cir. Aug.
31, 2018). The Zadeh panel still afforded the TMB officials qualified immunity protection,
however, since the search’s illegality had not yet been clearly established at the time of the
search. Id. at **6–7.
        The parties contest the meaning and impact of Zadeh’s holding, but a key factual
distinction establishes its irrelevance: In Zadeh, the plaintiff—also a doctor—owned and
operated the practice from which TMB seized medical records. Id. at *1. Accordingly, he had
a Fourth Amendment interest that Barry does not possess.
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