867 F.3d 1034 (8th Cir. 2017), 15-3271, Does v. Gillespie

Docket Nº:15-3271, 16-4068
Citation:867 F.3d 1034
Opinion Judge:COLLOTON, Circuit Judge.
Party Name:Jane Does, 1-3; Planned Parenthood of Arkansas & Eastern Oklahoma, doing business as Planned Parenthood Great Plains, Plaintiffs - Appellees, v. Cindy Gillespie, [1] Director of the Arkansas Department of Human Services, Defendant - Appellant. American Public Health Association; National Center for Lesbian Rights; National Family Planning & Reprodu
Attorney:For Jane Does, 1-3, Planned Parenthood of Arkansas & Eastern Oklahoma, doing business as Planned Parenthood Great Plains, Plaintiffs - Appellees (15-3271): Bettina E. Brownstein, Little Rock, AR; Erwin Chemerinsky, UCI SCHOOL OF LAW, Irvine, CA; Jennifer Sandman, PLANNED PARENTHOOD FEDERATION OF ...
Judge Panel:Before COLLOTON, MELLOY, and SHEPHERD, Circuit Judges. SHEPHERD, Circuit Judge, concurring. MELLOY, Circuit Judge, dissenting. SHEPHERD, Circuit Judge, concurring. MELLOY, Circuit Judge, dissenting.
Case Date:August 16, 2017
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 1034

867 F.3d 1034 (8th Cir. 2017)

Jane Does, 1-3; Planned Parenthood of Arkansas & Eastern Oklahoma, doing business as Planned Parenthood Great Plains, Plaintiffs - Appellees,

v.

Cindy Gillespie,1 Director of the Arkansas Department of Human Services, Defendant - Appellant.

American Public Health Association; National Center for Lesbian Rights; National Family Planning & Reproductive Health Association; National Health Law Program; National Latina Institute for Reproductive Health; National Women's Law Center; Sexuality Information and Education Council of the U.S., Amici on Behalf of Appellees.

Planned Parenthood of Arkansas & Eastern Oklahoma, doing business as Planned Parenthood Great Plains; Jane Does, 1-3, Plaintiffs - Appellees,

v.

Cindy Gillespie, Director of the Arkansas Department of Human Services, Defendant - Appellant

Nos. 15-3271, 16-4068

United States Court of Appeals, Eighth Circuit

August 16, 2017

Submitted September 21, 2016.

Appeals from United States District Court for the Eastern District of Arkansas - Little Rock.

For Jane Does, 1-3, Planned Parenthood of Arkansas & Eastern Oklahoma, doing business as Planned Parenthood Great Plains, Plaintiffs - Appellees (15-3271): Bettina E. Brownstein, Little Rock, AR; Erwin Chemerinsky, UCI SCHOOL OF LAW, Irvine, CA; Jennifer Sandman, PLANNED PARENTHOOD FEDERATION OF AMERICA, New York, NY.

For Cindy Gillespie, Director of the Arkansas Department of Human Services, Defendant - Appellant (15-3271): Carmine Joseph Cordi, Jr., UNIVERSITY OF ARKANSAS, Office of General Counsel, Fayetteville, AR; David A. Curran, Associate General Counsel, UNIVERSITY OF ARKANSAS, Office of General Counsel, Little Rock, AR; Lee P. Rudofsky, ATTORNEY GENERAL'S OFFICE, Little Rock, AR; David W. Sterling, ARKANSAS DEPARTMENT OF HUMAN SERVICES, Office of Chief Counsel, Little Rock, AR.

For American Public Health Association, National Center for Lesbian Rights, National Family Planning & Reproductive Health Association, National Health Law Program, National Latina Institute for Reproductive Health, National Women's Law Center, Sexuality Information and Education Council of the U.S., Amicus on Behalf of Appellees (15-3271): Martha Jane Perkins, NATIONAL HEALTH LAW PROGRAM, Carrboro, NC.

For Planned Parenthood of Arkansas & Eastern Oklahoma, doing business as Planned Parenthood Great Plains, Jane Does, 1-3, Plaintiffs - Appellees (16-4068): Bettina E. Brownstein, Little Rock, AR; Erwin Chemerinsky, UCI SCHOOL OF LAW, Irvine, CA; Jennifer Sandman, PLANNED PARENTHOOD FEDERATION OF AMERICA, New York, NY.

For Cindy Gillespie, Director of the Arkansas Department of Human Services, Defendant - Appellant (16-4068): Charles Lyford, Lee P. Rudofsky, ATTORNEY GENERAL'S OFFICE, Little Rock, AR; David W. Sterling, ARKANSAS DEPARTMENT OF HUMAN SERVICES, Office of Chief Counsel, Little Rock, AR.

Before COLLOTON, MELLOY, and SHEPHERD, Circuit Judges. SHEPHERD, Circuit Judge, concurring. MELLOY, Circuit Judge, dissenting.

OPINION

COLLOTON, Circuit Judge.

The Arkansas Department of Human Services terminated its Medicaid provider agreements with Planned Parenthood of Arkansas and Eastern Oklahoma after the release of controversial video recordings involving other Planned Parenthood affiliates. Planned Parenthood of Arkansas and Eastern Oklahoma could have challenged the termination through an administrative appeal and judicial review in the Arkansas courts, but it declined to do so. Instead, three Arkansas patients identified by the Planned Parenthood affiliate sued the Director of the Department under 42 U.S.C. § 1983, claiming that the Department violated a federal right of the patients under the Medicaid Act to choose any " qualified" provider that offers services that the patients seek.

The district court enjoined the Department from suspending Medicaid payments to Planned Parenthood of Arkansas and Eastern Oklahoma for services rendered to the three patients. The court later entered a broader injunction that forbids suspending payments for services rendered to a class of Medicaid beneficiaries. The Director appeals, and we conclude that the plaintiffs do not have a likelihood of success on the merits of their claims. The provision of the Medicaid Act does not unambiguously create a federal right for individual patients that can be enforced under § 1983. We therefore vacate the injunctions.

I.

Planned Parenthood of Arkansas and Eastern Oklahoma, an affiliate of the Planned Parenthood Federation of America, operates health centers in Arkansas. We will call the local affiliate " Planned Parenthood" for short. The district court found that the Arkansas health centers " provide family planning services to men and women, including contraception and contraceptive counseling, screening for breast and cervical cancer, pregnancy testing and counseling, and early medication abortion."

As of 2015, Planned Parenthood and the Arkansas Department of Human Services were parties to contracts under which Planned Parenthood participated in the Arkansas Medicaid program. The contracts provided that either party could terminate them without cause by giving thirty days' notice. The Department also could terminate the contracts immediately for several reasons, including for conduct that is sanctionable under the applicable Medicaid Provider Manual.

On August 14, 2015, Governor Hutchinson of Arkansas directed the Department to terminate its Medicaid provider agreements with Planned Parenthood. The Governor said in a public statement that it was " apparent . . . after the recent revelations on the actions of Planned Parenthood, that this organization does not represent the values of the people of our state and Arkansas is better served by terminating any and all existing contracts with them." Context makes clear that the " recent revelations" to which the Governor referred were video recordings released by the Center for Medical Progress that purported to show employees of other Planned Parenthood affiliates discussing the sale of fetal tissue for profit. The parties dispute whether the Planned Parenthood affiliates involved in the recordings engaged in any unlawful or unethical conduct.

The Department, on August 14, 2015, notified Planned Parenthood that it was terminating the Medicaid provider agreements, effective thirty days later, and notified Planned Parenthood of its right to file an administrative appeal. Before the thirty days expired, on September 1, the Department sent a second notice. This one stated that the Department was terminating its agreements with Planned Parenthood for cause, because " there is evidence that [Planned Parenthood] and/or its affiliates are acting in an unethical manner and engaging in what appears to be wrongful conduct." Rather than discontinue the contracts immediately, however, the Department set the termination date for September 14, 2015, the same date specified in the first letter.

Federal regulations authorized by Congress and promulgated by the Secretary of Health and Human Services require each State to establish appeal procedures for Medicaid providers. 42 U.S.C. § § 1396a(a)(4), (39); 42 C.F.R. § 1002.213. Under Arkansas law, a provider who is terminated has a right to file an administrative appeal within thirty days of the termination, and then to seek judicial review. Ark. Code R. § 016.06.35-161.400; Ark. Code Ann. § 20-77-1718. Planned Parenthood, however, declined to exercise its appeal rights under Arkansas law and instead identified three patients who were willing to join the organization in a federal lawsuit.

On September 11, 2015, Planned Parenthood and three patients identified as " Jane Does" sued the Department's Director in the district court, seeking a temporary restraining order and a preliminary injunction to prevent the Department from terminating Planned Parenthood's contract. The plaintiffs alleged that they were likely to prevail on a claim that the Department, by excluding Planned Parenthood from the Medicaid program for a reason unrelated to its fitness to provide medical services, had violated § 23(A) of the Medicaid Act. This section is described as the Medicaid " free-choice-of-provider" provision. 42 U.S.C. § 1396a(a)(23)(A). The plaintiffs further asserted that without an injunction, they would suffer irreparable harm. The plaintiffs claimed that § 23(A) creates a judicially enforceable right, a violation of which can be remedied through an action under 42 U.S.C. § 1983. The district court granted a temporary restraining order.

After further briefing by the parties, Planned Parenthood withdrew its claim for relief as a provider, but the Jane Does proceeded with their claims as patients, and the district court granted a preliminary injunction in favor of the Jane Does. The court concluded that § 23(A) creates a private right enforceable by the Jane...

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