Zadeh v. Robinson

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The Fifth Circuit denied the petition for rehearing en banc, granted the petition for rehearing, and withdrew its prior opinion, substituting the following opinion. The court affirmed the district court's partial grant of defendants' motion to dismiss a 42 U.S.C. 1983 action claiming that the Texas Medical Board's execution of an administrative subpoena in plaintiff's office violated the Fourth Amendment. The court held that it was clearly established at the time of this search that the medical profession as a whole is not a closely regulated industry, meaning that governmental agents violate the Constitution when they search clinics that are not pain management clinics without providing an opportunity for precompliance review. The court also held that, even assuming that pain management clinics are part of a closely regulated industry, on-demand searches of those clinics violate the constitution when the statutory scheme authorizing the search fails to provide sufficient constraints on the discretion of the inspecting officers. In this case, the unlawfulness of defendants' conduct was not clearly established at the time of the search. The court also held that the search was not pretextual; the district court did not abuse its discretion in abstaining from deciding the declaratory judgment claims; Director 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; and, to the extent plaintiffs sought to impose section 1983 liability on Defendants Kirby and Pease, through the subdelegation argument, that law also was not clearly established. View "Zadeh v. Robinson" on Justia Law