Choice Inc. of Tex. v. Greenstein

• Citation: 691 F.3d 710
• Decision Date: 17 August 2012
• Docket Number: No. 11–30296.,11–30296.
• Parties: CHOICE INCORPORATED OF TEXAS, doing business as Causeway Medical Clinic; Bossier City Medical Suite, Incorporated; Delta Clinic of Baton Rouge, Incorporated; Midtown Medical, L.L.C.; Women's Health Care Center, Incorporated; John Doe, M.D., Plaintiffs–Appellants, v. Bruce D. GREENSTEIN, in his official capacity as Secretary of the Louisiana Department of Health and Hospitals, Defendant–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

691 F.3d 710

CHOICE INCORPORATED OF TEXAS, doing business as Causeway Medical Clinic; Bossier City Medical Suite, Incorporated; Delta Clinic of Baton Rouge, Incorporated; Midtown Medical, L.L.C.; Women's Health Care Center, Incorporated; John Doe, M.D., Plaintiffs–Appellants,

v.Bruce D. GREENSTEIN, in his official capacity as Secretary of the Louisiana Department of Health and Hospitals, Defendant–Appellee.

No. 11–30296.

United States Court of Appeals,Fifth Circuit.

Aug. 17, 2012.

Bonnie Scott Jones, Center for Reproductive Rights, U.S. Legal Program, Madeleine Ann Hensler, Joseph Alexander Lawrence (argued), Morrison & Foerster, L.L.P., New York City, William E. Rittenberg, Rittenberg, Samuel & Phillips, L.L.C., New Orleans, LA, for Plaintiffs–Appellants.

Ross Warren Bergethon, Asst. Atty. Gen. (argued), Fernin Farrell Eaton, LaVon D. Raymond, Dept. of Health & Hospitals, Baton Rouge, LA, Steven H. Aden, Alliance Defending Freedom, Washington, DC, for Defendant–Appellee.

Appeal from the United States District Court for the Middle District of Louisiana.

Before DENNIS, CLEMENT and OWEN, Circuit Judges.

OWEN, Circuit Judge:

Plaintiffs sued the Secretary of the Louisiana Department of Health and Hospitals (the Secretary or the Department), challenging the constitutionality of Louisiana's Act 490. Prior to hearing the merits, the district court granted the Secretary's motion to dismiss, holding that the claims were not ripe. We affirm the district court's decision to dismiss the claims because Plaintiffs have failed to show that hardship will result from withholding court consideration at this time.

I

A

Act 490, enacted in 2010, amended Louisiana's Outpatient Abortion Facility Licensing Law of 2001. Specifically, Act 490 amended Section 40:2175.6 by removing a provision that provided that the procedure for denial, suspension, or revocation of an outpatient abortion facility (OAF) license would be the same as that for hospitals.¹ The revised section provides:

The [S]ecretary of the [D]epartment may deny a license, may refuse to renew a license, or may revoke an existing license, if an investigation or survey determines that the applicant or licensee is in violation of any provision of this Part, in violation of the licensing rules promulgated by the [D]epartment, or in violation of any other federal or state law or regulation.²

Previously, the Secretary could deny, suspend, or revoke a license only after finding a “substantial failure ... to comply,” but Act 490 only requires a determination that there has been a “violation” for the Secretary to deny, refuse to renew, or revoke a license.³ Act 490 also grants the Secretary new authority to deny, refuse to renew, or revoke a license if the applicant or licensee violates “any other federal or state law or regulation.” ⁴ While the right to file a suspensive appeal (suspending the execution of the judgment) with the office of the Secretary is retained, Act 490 does not include the prior provision that granted a right to appeal suspensively to a district court for trial de novo.⁵ Act 490 still requires the Secretary to provide thirty days written notice before denying, refusing to renew, or revoking a license.⁶

Act 490 also authorizes the Secretary to issue an immediate suspension in some circumstances:

[T]he [S]ecretary ... may issue an immediate suspension of a license if an investigation or survey determines that the applicant or licensee is in violation of any provision of this Part, in violation of the rules promulgated by the [D]epartment, or in violation of any other federal or state law or regulation, and the [S]ecretary determines that the violation or violations pose an imminent or immediate threat to the health, welfare, or safety of a client or patient.⁷

The Secretary must give written notice of an immediate suspension, and the suspension becomes effective upon receipt of such notice.⁸ If the Secretary issues an immediate suspension, the licensee has the right to file a devolutive appeal (not suspending execution of the judgment), or the licensee can seek injunctive relief in district court.⁹ To obtain injunctive relief, the licensee must prove “by clear and convincing evidence that the [S]ecretary's decision ... was arbitrary and capricious.”¹⁰ No longer is there any requirement that the licensee be “given an opportunity to show compliance with all lawful requirements for the retention of the license.”¹¹

Finally, Act 490 added a new provision, which provides:

If a license is revoked or renewal of a license is denied other than for cessation of business or non-operational status, or if the license is surrendered in lieu of an adverse action, any owner, officer, member, manager, director, or administrator of the licensee may be prohibited from owning, managing, directing, or operating another outpatient abortion clinic in the state of Louisiana.¹²

B

The petitioners in this case are Choice Inc. of Texas; Bossier City Medical Suite, Inc; Delta Clinic of Baton Rouge, Inc.; Midtown Medical, L.L.C.; and Women's Health Care Center, Inc., five of the seven licensed OAFs in Louisiana, and John Doe, M.D., a physician who provides abortion services at some of those facilities. We will refer to these parties collectively as “Choice.” Although Act 490 has not been enforced against Choice, it filed a pre-enforcement challenge to Act 490's constitutionality in federal district court, seeking a declaratory judgment and injunctive relief. Choice raised four constitutional challenges to Act 490: (1) it is unconstitutional under the Due Process Clause because it fails to give OAFs fair notice of the conditions of licensure and encourages arbitrary and discriminatory enforcement; (2) it violates the OAFs' rights under the Equal Protection Clause by treating them differently from all other medical facilities regulated by the Department without any basis for doing so; (3) it violates the OAFs' rights to due process because it deprives them of liberty and property interests in an arbitrary, unreasonable, and capricious manner and invests an impermissible degree of subjective discretion in the Secretary; and (4) it violates the fundamental right to terminate a pregnancy guaranteed by the Fourteenth Amendment by imposing a substantial obstacle in the path of patients seeking to obtain pre-viability abortions.

In challenging Act 490, Choice does not rely solely on the changes in statutory language previously described. Choice also notes that the other two OAFs in Louisiana, Hope Medical Group for Women (Hope) and Gentilly Medical Clinic for Women (Gentilly), neither a party to this litigation, are currently subject to revocation proceedings. In particular, Choice relies on the enforcement action against Hope to challenge the Department's implementation of Act 490. The thrust of Choice's argument is that the Department's actions evince a new policy, pursuant to which the Department will no longer provide an OAF with notice of alleged deficiencies and an opportunity to correct them before suspending or revoking the OAF's license.

C

Prior to hearing the merits of Choice's claims, the district court granted the Secretary's motion to dismiss. Considering the 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, the district court held that the claims were not ripe, determining that Choice “[would] not suffer any significant hardship” and that “the issues [were] not fit for judicial decision at the present time.” With respect to hardship, the district court determined that “nothing in Act 490 requires [Choice] to alter [its] conduct; instead, it alters the State's conduct in detecting and addressing violations.” Additionally, the court noted that although Act 490 broadened the universe of laws the violation of which could result in an adverse licensure decision, Choice was “legally obligated to adhere to those statutes and regulations notwithstanding Act 490.” With respect to fitness for judicial decision, the court concluded that Act 490 had yet to be enforced “in such a ‘Draconian’ fashion” as feared by Choice, and that “it is pure speculation to say that [Choice] may one day be subject to the provisions in Act 490 of which [it] complain[s].” Furthermore, the court viewed the Department's enforcement action against Hope as “too isolated” to assist in the evaluation of Choice's claims. Choice now appeals, arguing that the district court erred in its ripeness analysis.

II

A district court's grant of a 12(b)(1) motion to dismiss for lack of subject matter jurisdiction is reviewed de novo, ¹³ and more specifically, the jurisdictional issue of ripeness is a legal question for which review is de novo.¹⁴ The plaintiff, as the party asserting jurisdiction, bears the burden of proof.¹⁵ In assessing jurisdiction, the district court is to accept as true the allegations and facts set forth in the complaint.¹⁶ Additionally, “the district court is empowered to consider matters of fact which may be in dispute.” ¹⁷

The district court consequently has the power to dismiss for lack of subject matter jurisdiction on any one of three separate bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.¹⁸

“[A] motion to dismiss for lack of subject matter jurisdiction should be granted only if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle plaintiff to relief.” ¹⁹

III

A

Article III of the United States Constitution provides that federal courts have the power to decide only actual cases or controversies.²⁰ The justiciability doctrines of standing, mootness, political question, and ripeness “all originate in Article III's ‘case’ or ‘controversy’ language ....”²¹ The ripeness doctrine also is drawn “ ‘from prudential reasons for refusing to exercise jurisdiction.’ ”²² The...