PLANNED PARENTHOOD OF KANSAS AND MID-MISSOURI; PLANNED PARENTHOOD OF ST. LOUIS REGION; JANE DOE #1, on her behalf and on behalf of all others similarly situated; JANE DOE #2, on her behalf and on behalf of all others similarly situated; JANE DOE #3, on her behalf and on behalf of all others similarly situated, Plaintiffs - Appellees,
JEFF ANDERSEN, Acting Secretary, Kansas Department of Health and Environment, in his official capacity, [*] Defendant-Appellant. CENTER FOR REPRODUCTIVE RIGHTS; IPAS; 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. (SIECUS); AMERICAN PUBLIC HEALTH ASSOCIATION, Amici Curiae.
from the United States District Court for the District of
Kansas (D.C. No. 2:16-CV-02284-JAR-GLR)
Patrick Strawbridge, Consovoy McCarthy Park, PLLC, Boston,
Massachusetts (Michael H. Park, Consovoy McCarthy Park, PLLC,
New York, New York, Darian P. Dernovish, Kansas Department of
Health and Environment, Topeka, Kansas, with him on the
briefs), for Defendant-Appellant.
Salgado, Planned Parenthood Federation of America,
Washington, D.C. (Erwin Chemerinsky, University of
California, Irvine School of Law, Irvine, California, Arthur
A. Benson and Jamie Kathryn Lansford, Kansas City, Missouri,
and Douglas N. Ghertner, Slagle, Bernard and Gorman, P.C.,
Kansas City, Missouri, with her on the brief), for
Jane Perkins, National Health Law Program, Carrboro, North
Carolina, filed an amici curiae brief in support of
BACHARACH, PHILLIPS, and McHUGH, Circuit Judges.
PHILLIPS, Circuit Judge.
free-choice-of-provider provision grants Medicaid patients
the right to choose for their medical care any qualified and
willing provider. 42 U.S.C. § 1396a(a)(23). On May 3,
2016, Kansas sent notices of decisions to terminate
(effective May 10) its Medicaid contracts with two Planned
Parenthood affiliates, Planned Parenthood of Kansas and
Mid-Missouri ("PPGP"), and Planned Parenthood of
the St. Louis Region ("PPSLR"). The notices cited
concerns about the level of PPGP's cooperation in
solid-waste inspections, both Providers' billing
practices, and an anti-abortion group's allegations that
Planned Parenthood of America ("PPFA") executives
had been video-recorded negotiating the sale of fetal tissue
and body parts. Together, the Providers and three individual
Jane Does ("the Patients") immediately sued Susan
Mosier, Secretary of the Kansas Department of Health and
Environment ("KDHE"), under 42 U.S.C. § 1983,
alleging violations of 42 U.S.C. § 1396a(a)(23) and the
Equal Protection Clause of the Fourteenth Amendment. The
Plaintiffs sought a preliminary injunction enjoining Kansas
from terminating the Providers from the state's Medicaid
have broad authority to ensure that Medicaid healthcare
providers are qualified to provide medical services-meaning
that they are competent to provide medical services and do so
ethically. But this power has limits. States may not
terminate providers from their Medicaid program for any
reason they see fit, especially when that reason is unrelated
to the provider's competence and the quality of the
healthcare it provides. We join four of five of our sister
circuits that have addressed this same provision and affirm
the district court's injunction prohibiting Kansas from
terminating its Medicaid contract with PPGP. But we vacate
the district court's injunction as it pertains to PPSLR
and remand for further proceedings on that issue. Though the
Plaintiffs have provided affidavits from three Jane Does
concerning their past and expected medical care from PPGP,
the Plaintiffs have not provided affidavits from any persons
receiving or expecting to receive medical care at PPSLR.
Hence the Plaintiffs have failed to establish any injury they
will suffer from the termination of PPSLR, meaning they have
failed to establish standing to challenge that termination.
But on this record, we cannot determine whether PPSLR itself
can establish standing, an issue the district court declined
to decide but now must decide on remand. Though Kansas has
not raised this standing issue, we have an independent duty
to assure ourselves of the district court's
subject-matter jurisdiction. See City of Colo. Springs v.
Climax Molybdenum Co., 587 F.3d 1071, 1078-79 (10th Cir.
The Medicaid Act and Kansas Regulations
Medicaid Act's free-choice-of-provider provision states
that "any individual eligible for medical assistance . .
. may obtain such assistance from any institution, agency,
community pharmacy, or person, qualified to perform the
service or services required . . . who undertakes to provide
him such services." 42 U.S.C. § 1396a(a)(23). This
provision "guarantees that Medicaid beneficiaries will
be able to obtain medical care from the qualified and willing
medical provider of their choice." Planned
Parenthood of Gulf Coast, Inc. v. Gee, 862 F.3d 445, 450
(5th Cir. 2017). Because the Medicaid Act is mostly
administered by the states, the Act empowers states to
determine whether entities are medical providers
"qualified to perform the service or services
required." States may exclude Medicaid providers-that
is, withhold reimbursements for medical services provided to
patients-"for any reason for which the [federal]
Secretary [of Health and Human Services] could exclude the
individual or entity from participation in a program
under" specified statutes. 42 U.S.C. § 1396a(p)(1);
42 C.F.R. § 1002.3(a)-(b). As grounds for excluding the
Providers from its Medicaid plan, Kansas has raised 42 U.S.C.
§ 1320a-7(b)(5)(B), (b)(12)(B).
like all states, issues regulations to administer its
Medicaid program. These regulations govern when, why, and how
Kansas may terminate contracts between its Medicaid program
and healthcare providers. Kan. Admin. Regs. §
30-5-60(a). If Kansas decides that a provider is no longer
competent to provide medical services, it must send written
notification to the provider of its intent to terminate the
provider and its reasons for doing so. Kan. Admin. Regs.
§ 30-5-60(c). This notification must also inform the
provider that it has a right to appear before the KDHE
between five and fifteen days from the date the notice is
mailed or served on the provider. Id.
state decides to terminate the provider, the provider may
request a hearing from Kansas's Office of Administrative
Hearings ("OAH") within thirty-three days after
receiving notice of termination. Kan. Admin. Regs.
§§ 30-7-67-68. According to Kansas, this decision
to terminate "becomes final only after the time for a
formal administrative hearing has passed."
Appellant's Opening Br. at 6 (citing Kan. Admin. Regs.
§ 30-7-64-104). If the provider is dissatisfied with the
results of this hearing, it may request a rehearing.
Id. If, after that, it is still dissatisfied, the
provider may appeal to state court. See Kan. Stat.
Ann. § 77-601-31.
Planned Parenthood's Alleged Wrongdoing
Parenthood affiliates, many of which are located in areas
with shortages of primary-care providers, deliver essential
services to Medicaid recipients. PPGP has two health centers
in Kansas and three in Missouri, and PPSLR has one health
center in Missouri that also serves Kansas Medicaid patients.
The Providers' services include annual health exams;
different types of contraception along with contraceptive
counseling; breast- and cervical-cancer screening;
cervical-cancer treatment; screening and treatment for
sexually transmitted infections; human papillomavirus
vaccinations; pregnancy testing and counseling; and other
health services. Though some Planned Parenthood clinics
also perform abortions, Medicaid seldom pays for abortions.
See, e.g., Harris v. McRae, 448 U.S. 297,
302-03 (1980) (explaining that the Hyde Amendment prohibits
using federal Medicaid funds to reimburse the cost of
abortions except in limited circumstances such as rape or
incest). The Patients chose Planned Parenthood for
reproductive-healthcare services for many reasons, including
the quality and availability of the services and expertise in
2015, the anti-abortion group Center for Medical Progress
("CMP") released on YouTube a series of edited
videos purportedly depicting PPFA executives negotiating with
undercover journalists for the sale of fetal tissue and body
parts. Kansas alleges that the videos demonstrate that
"Planned Parenthood manipulates abortions to harvest
organs with the highest market demand" and that PPFA
executives are willing to negotiate fetal-tissue prices to
obtain profits. Appellant's Opening Br. at 7. According
to Kansas, this evidence matters because "PPFA controls
its 'affiliate' organizations, including [PPGP] and
PPSLR." Id. Neither PPGP nor PPSLR is the
subject of the videos and it is undisputed that neither
participates in fetal-tissue donation or sale.
prove PPFA's control over and affiliation with the
Providers, Kansas claims that (1) "PPFA and its
affiliates make no apparent effort to keep their finances
separate"; (2) PPFA compiles a yearly
"'combined balance sheet, '" which
"aggregate[s] 'revenue and expenses'" for
the entire Planned Parenthood organization; (3) according to
its 2014 tax return, PPFA transferred over $50 million to its
affiliates; (4) PPFA drafts rules of procedure and operation
for its affiliates and trains its affiliates' officers
and employees in "management and medical
practices"; and (5) PPFA's legal counsel represented
PPGP and PPSLR in their meeting with the KDHE. Id.
at 7-8 (quoting Appellant's App. at 479-82).
on CMP's videos of the PPFA executives, Kansas began
investigating the Providers. In August 2015, Kansas's
Board of Healing Arts ("BOHA"), the agency
primarily responsible for medical licensure and regulation,
requested from PPGP copies of "treatment records related
to abortion procedures or stillbirths . . . in which fetal
organs or tissues were transferred for any purpose other than
those" permitted by law. Appellant's App. at 208-11.
On January 7, 2016, the BOHA determined that, "[a]fter
careful review of the investigative materials, . . . no
further action will be taken at this time." Id.
December 16, 2015, Kansas's Bureau of Waste Management
("BWM") also initiated a solid-waste investigation
under Kan. Admin. Regs. § 28-29-16 of a PPGP-operated
clinic in Overland Park, Kansas. "[O]ut of concern for
clinic and patient privacy and safety, " PPGP employees
stopped the inspectors from taking photographs but invited
the inspectors to finish their inspection visually.
Planned Parenthood of Kan. & Mid-Mo. v. Mosier,
No. 16-2284-JAR-GLR, 2016 WL 3597457, at *5 (D. Kan. July 5,
2016). PPGP employees also refused to turn over
waste-disposal-vendor lists-which would have become public
information subject to the Kansas Open Records Act had PPGP
turned over the lists to the investigators- because the PPGP
employees were concerned about "the history of
harassment toward companies that work with Planned
Parenthood." Appellee's Response Br. at 6. Kansas
claims that the inspectors were thus "[u]nable to
complete their inspection, " so they left the clinic.
Appellant's Opening Br. at 10-11. Kansas alleges that
PPGP's conduct hindered the investigation, though BWM
never cited PPGP for any violation related to the
January 5, 2016, after counsel for BWM guaranteed the privacy
of PPGP's patients, PPGP permitted the inspectors to take
photographs on their return visit. The BWM inspectors left a
report with PPGP's clinic employees, stating that BWM had
found no violations. Later, on January 15, 2016, after PPGP
had taken the necessary steps to make its vendor information
confidential, PPGP provided BWM the requested waste-vendor
information as well. Though Kansas points out that this was
"an entire month after the first inspection, "
id. at 11, in reality, BWM had granted PPGP extra
time so that PPGP could document its request to keep the
Kansas never investigated PPSLR, the Missouri Attorney
General did. In September 2015, after looking into
PPSLR's fetal-tissue practices, the Missouri Attorney
General's office announced that it had found no evidence
to this appeal, Kansas also notes that "[a]llegations .
. . emerged that Planned Parenthood offices around the
country have engaged in questionable billing practices,
including in the nearby states of Oklahoma and Texas."
Id. at 8-9. And it claims that "Planned
Parenthood's practices have prompted numerous lawsuits
under the False Claims Act ('FCA')."
Id. at 9.
Termination Proceedings & District Court Case
March 10, 2016, about two months after Kansas's
inspection of one of PPGP's clinics and two months after
Kansas Governor Sam Brownback announced that he had
"signed legislation stopping most taxpayer funding from
going to Planned Parenthood, " and that "[t]he time
had[d] come to finish the job, " Kansas issued notices
of intent to terminate PPGP and PPSLR as state Medicaid
providers.Governor Sam Brownback, 2016 State of the
State (Jan. 12, 2016) (transcript available at
Those notices informed the Providers that, under Kan. Admin.
Regs. § 30-5-60(a), Kansas "intend[ed] to terminate
[their] participation in" Kansas's state Medicaid
program. Appellant's App. at 78. Kansas cited the
following paragraphs from § 30-5-60(a): "(2)
noncompliance with applicable state laws, administrative
regulations, or program issuances concerning medical
providers; (3) noncompliance with the terms of a provider
agreement; (9) unethical or unprofessional conduct; and (17)
other good cause." Id.
notices also informed the Providers that they could each
challenge their proposed terminations in administrative
reviews, where they would "have the opportunity to
present any relevant evidence" regarding their
terminations. Id. PPGP's administrative review
was scheduled for March 23, 2016, and PPSLR's was
scheduled for March 22, 2016. The notices included
attachments listing the state's reasons for terminating
the Providers-including the CMP videos, PPGP's supposed
lack of cooperation during the waste disposal inspections,
and the FCA allegations in neighboring states.
the Providers participated in an administrative review on
April 29, 2016. At this review, the Providers' counsel
presented evidence and argued against termination. But on May
3, 2016, Kansas sent each Provider a "Notice of Decision
to Terminate, " which provided that "[a]fter
thorough review of all information presented, . . . your
participation in [Kansas's state Medicaid program] will
be terminated effective May 10, 2016."
Id. at 51, 53. The notices also informed the
Providers that, under Kan. Admin. Regs. § 30-7-64, they
had the right to "request a fair hearing" with the
OAH within thirty-three days of the termination notice.
of requesting a hearing to review the terminations, the
Providers, the Patients, and eleven individual PPGP and PPSLR
employees (whose charges were later dropped after Kansas
reconsidered and reversed its decision to terminate them from
its state Medicaid program) sued Kansas under 42 U.S.C.
§ 1983, alleging violations of the Medicaid Act and the
Equal Protection Clause of the Fourteenth Amendment. The
Patients each had their own reasons for choosing PPGP for
reproductive-health services. Jane Doe #1 chose PPGP as a
provider because it was the only provider that would accept
her as a patient (because she was not pregnant) and schedule
an annual appointment for her within a reasonable time. Jane
Doe #2 is a long-time PPGP patient who trusts the
provider's expertise in reproductive health care and
relies on the PPGP for regularly administered birth-control
shots. Jane Doe #3, who was pregnant when the lawsuit was
filed, chose PPGP because she appreciated the continuity of
having one reproductive-health-care provider and wanted to
obtain birth control after giving birth.
after filing their lawsuit, the Plaintiffs filed a Motion for
Temporary Restraining Order and Preliminary Injunction. On
June 7, 2016, after Kansas twice continued the hearing date
and agreed to extend the effective termination date to July
7, the parties argued the case before the district court.
Kansas now argues that extending the termination date from
May 10 to July 7 meant that the Providers had until August 10
to seek a hearing before the OAH. Kansas also notes that
PPGP's Medicaid contract with the state dictated that the
contract would terminate thirty days after "notification
from the State that the provider's state fair hearing
rights have expired or the state fair hearing has been
completed related to the Medicaid termination."
Id. at 586. To Kansas, this means that "the
[termination] notice would have had no effect on [PPGP] until
September 10, 2016." Appellant's Opening Br. at 13.
On July 5, the district court granted the Plaintiffs'
request and issued a temporary restraining order and
preliminary injunction. Mosier, 2016 WL 3597457, at
granting the Plaintiffs' request for relief, the district
court held that the case was ripe, that the
Plaintiffs had standing, and that abstention
wasn't necessary under Younger v. Harris, 401
U.S. 37 (1971). Id. at *8. On the merits, the
district court found that the Patients had a private right of
action and were likely to succeed on their
free-choice-of-provider claim under the Medicaid Act.
Id. at *14-*22. Specifically, the court concluded
that states could not interfere with patients' choice of
providers for reasons other than the providers'
professional competence or fitness to provide medical
services. Id. at *18. It also found that the
Plaintiffs had met the other requirements for injunctive
relief: that the Plaintiffs would suffer irreparable harm
absent the requested relief, that the balance of harms
favored the Plaintiffs, and that the injunction served the
public interest. Id. at *22-*25. The district court
declined to rule on the Equal Protection claim. Id.
at *14. Kansas appealed.
we address Kansas's arguments regarding standing,
ripeness, and Younger abstention. Then, we move on
to address the claim's merits. Specifically, we decide
whether the Patients have a private right of action under the
Medicaid Act, and whether they have met the requirements
necessary to show that they are entitled to injunctive
United States Constitution empowers federal courts to address
"Cases" and "Controversies." U.S. Const.
art. III § 2, cl. 1. The cases-and-controversies
requirement manifests in the dual justiciability doctrines of
standing and ripeness. Kansas maintains that the district
court erred in concluding that the Plaintiffs had standing
and that the case was ripe.
review de novo a district court's finding of standing.
New Mexico v. Dep't of Interior, 854 F.3d 1207,
1215 (10th Cir. 2017). "The constitutional requirements
for standing are (1) an injury in fact, (2) a causal
connection between the injury and the challenged act, and (3)
a likelihood that the injury will be redressed by a favorable
decision." Id. at 1214-15 (quoting Roe No.
2 v. Ogden, 253 F.3d 1225, 1228-29 (10th Cir. 2001)).
Kansas contends that the Plaintiffs failed to show that their
injury was imminent and fairly traceable to Kansas's
Injury in Fact
standing, a plaintiff's injury must be "actual or
imminent, not conjectural or hypothetical." Lujan v.
Defs. of Wildlife, 504 U.S. 555, 560-61 (1992) (quoting
Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)).
"An allegation of future injury may suffice if the
threatened injury is 'certainly impending, ' or there
is a '"substantial risk" that the harm will
occur.'" Susan B. Anthony List v. Driehaus,
134 S.Ct. 2334, 2341 (2014) (quoting Clapper v. Amnesty
Int'l USA, 568 U.S. 398, 409, 414 n.5 (2013)).
Kansas argues that the Plaintiffs failed to show injury in
fact because (1) it had issued only a preliminary, not final,
decision and (2) the Plaintiffs' injuries are too
Kansas claims that only after the Plaintiffs had an
administrative hearing (which took place on April 29),
"may [it] then issue a written preliminary decision,
setting forth the effective date of the termination and the
basic underlying facts supporting the order."
Appellant's Opening Br. at 6. And Kansas goes on to argue
that the "preliminary decision . . . becomes final only
after the time for a formal administrative hearing has
passed." Id. (citing Kan. Admin. Regs.
§§ 30-7-64-104). But Kansas's use of the term
"preliminary" is without support in the statute.
The regulations provide that "[i]f the decision is to
terminate, a written order of termination shall be issued,
setting forth the effective date of the termination and the
basic underlying facts supporting the order." Kan.
Admin. Regs. § 30-5-60(c). Thus, we reject Kansas's
argument that its decision was preliminary rather than final.
Kansas claims that the Plaintiffs' injuries are
speculative because the Providers "refused to complete
the administrative process, " so no one can say whether
they would have been terminated at all. Appellant's
Opening Br. at 20. This argument hinges on Kansas's
characterization of the termination letters and their effect.
According to Kansas, the notices it sent to the Providers
were "far from . . . final termination[s], " but
rather were "effectively . . . complaint[s] that the
Providers could formally contest . . . or admit."
Id. at 21. The providers had until August 10 to
administratively appeal Kansas's decision to terminate
them from the Medicaid program-thirty-three days from the
termination's extended effective date of July 7. And
Kansas says that under its contracts with PPGP, it
couldn't cut the Provider's funding until September
10-thirty days after the expiration of the Providers'
right of appeal. See Kan. Admin. Regs. §
argument fails. As did the district court, we read the
notices of termination literally. See Mosier, 2016
WL 3597457, at *9. The letters' plain language precludes
us from treating them as mere warnings of possible future
events. The March 10 letters that Kansas sent to the
Providers were titled, "Notice of Intent to
Terminate, " and the May 3 letters were titled,
"Notice of Decision to Terminate."
Appellant's App. at 51, 53, 78, 83 (emphasis added).
Also, the second letters were final because they stated that
"it is the decision of [Kansas] that your participation
in [Kansas's Medicaid Program] will be terminated, "
and that the Providers' terminations would be
"effective May 10, 2016." Id. at 51, 53.
This date was extended to July 7 only because Kansas
requested more time to respond to the Plaintiffs' motion
for preliminary injunction. Though the Providers'
statutory right to appeal the termination may have delayed
the date that Kansas cut off the Providers' funding,
Kansas doesn't explain how that delay would change the
legally effective date of the termination.
fact, as the district court noted, Kansas's
"position on the effective date of termination has been
a moving target." Mosier, 2016 WL 3597457, at
*8. After the Providers' April administrative hearing,
Kansas specifically declined the Plaintiffs' request to
delay any termination decisions for thirty days from the date
of the final terminations. Instead, Kansas made the effective
termination date May 10, just a week from the date of the
final termination letters. Kansas also rejected the district
court's proposal of a mutually-agreed injunction that
would "freeze the status quo" until September.
Id. The first time Kansas argued that the
terminations wouldn't take effect until September 10 was
on May 31, in its response to the Plaintiffs' motion for
preliminary injunction. And Kansas provided no concrete
assurances to support this claim, refusing to draft even a
simple statement attesting to the fact that it wouldn't
cut off funding until September 10.
light of such conduct, Kansas's claim that it
wouldn't cut off funding to the Providers until September
10 is unpersuasive. We agree with the district court that
Kansas cannot "have its cake and eat it too" by
insisting that the terminations wouldn't be effective
until September, yet refusing to agree to delay enforcement
by guaranteeing that September effective date. Id.
at *9. We also agree with the district court's position
that "[t]he fact that [Kansas] is unwilling to put its
counsel's representations into a stipulated order that
would apply to both providers is entirely inconsistent with
its position that this dispute is premature."
case, we conclude that the Plaintiffs faced a substantial
risk of injury from the moment Kansas sent its final notices
of termination. Although the termination decisions would not
have gone into effect until July 7, 2016 (accounting for
Kansas's litigation-related extensions), the state
"ha[d] already acted to terminate [the Providers']
Medicaid provider agreements; only the effect of
[those] termination[s] ha[d] yet to be implemented."
Gee, 862 F.3d at 455. Because the Plaintiffs chose
not to pursue an administrative appeal, only Kansas's
"unilateral reversal" of its terminations could
have saved the Plaintiffs from injury, even accounting for
all of the delays built into the termination process.
Mosier, 2016 WL 3597457, at *11. As Kansas itself
states, we must determine standing "as of the time the
action is brought." Appellant's Opening Br. at 22
(quoting Utah Ass'n of Ctys. v. Bush, 455 F.3d
1094, 1099 (10th Cir. 2006)). And the Patients, in
particular, "need not wait to file suit until [the
Providers are] forced to close [their] doors to them and all
other Medicaid beneficiaries." Gee, 862 F.3d at
455. We do not think a two-month delay-from July 7 to
September 10-renders the injuries too distant or speculative
to confer standing on the Plaintiffs.
alternatively argues that the Plaintiffs lack standing
because their injuries resulted from their own failure to
"use available procedures to remedy an alleged injury,
" rather than Kansas's actions, and thus are not
traceable to Kansas. Appellant's Opening Br. at 23.
correctly states that a plaintiff cannot show that a
defendant caused its injuries if the plaintiff's injuries
resulted from its own acts or failures to act. See
Clapper, 568 U.S. at 415 (concluding that plaintiffs
challenging a surveillance statute couldn't show standing
based on actions they took to protect themselves against
hypothetical governmental surveillance). To support its
argument that the Plaintiffs caused their own injuries,
Kansas relies on National Family Planning &
Reproductive Health, Inc. v. Gonzales, 468 F.3d 826, 828
(D.C. Cir. 2006). There, the D.C. Circuit held that a
plaintiff-association lacked standing to challenge an
antidiscrimination law for vagueness-the association argued
that it couldn't comply with both the new law and
existing regulations because they conflicted-in part because
the association could have cured its uncertainty by asking
the federal Department of Health and Human Services
("HHS") for clarification. Id. at 831.
Kansas claims that, like the association in
Gonzales, the Plaintiffs here could have avoided
injury by pursuing and completing the administrative-appeal
Plaintiffs' dilemma is dissimilar from that in
Gonzales. In Gonzales, HHS could have
prevented the plaintiff-association from suffering any injury
by explaining how it would implement the new law harmoniously
with the existing regulations. Id. Here, Kansas had
set a termination date for the Providers' Medicaid
contracts, even if they could have opted to pursue an
administrative appeal. But nothing in the record suggests
that the appeal itself would have tolled the terminations,
and the regulations contradict that position. See Kan.
Admin. Regs. § 30-7-66(a)(1). This means that, absent
injunctive relief, Kansas would have stopped funding the
Providers within two months. The Plaintiffs could have
avoided injury only by pursuing their administrative appeal
and winning, and nothing required them to exercise that right
to appeal. But even if the Plaintiffs had appealed the
termination, Kansas had refused to stipulate that it would
continue funding the Providers until September. And, unlike
the Providers, the Patients had no administrative remedies
available, and therefore no exhaustion requirements to
satisfy. See Gee, 862 F.3d at 455. Therefore,
Gonzales is inapposite.
agree with the district court's decision not to
"impose an indirect exhaustion requirement by finding
that Plaintiffs caused their own injury by failing to pursue
administrative remedies." Mosier, 2016 WL
3597457, at *12. The Plaintiffs met their burden of showing
that Kansas's actions created a substantial risk of
injury, so they had standing to sue the state.
next argues that this case is not ripe for adjudication
because the Plaintiffs didn't complete the
administrative-appeal process. Ripeness is a prerequisite to
justiciability with both constitutional and jurisdictional
components. See United States v. Bennett, 823 F.3d
1316, 1325 (10th Cir. 2016). We review de novo the district
court's ripeness finding. Roe No. 2, 253 F.3d at
1231. Ripeness doctrine ensures that courts don't
interfere with agency action until it has progressed from
abstract disagreement to a formal decision with concrete
effects. Farrell-Cooper Min. Co. v. U.S. Dep't of
Interior, 728 F.3d 1229, 1234 (10th Cir. 2013). To
determine a claim's ripeness, we evaluate (1) its fitness
for judicial resolution and (2) the hardship the parties
would suffer if the court declined to hear the case.
Fitness for Judicial Resolution
determine the fitness of issues for review, we may consider
'whether judicial intervention would inappropriately
interfere with further administrative action' and
'whether the courts would benefit from further factual
development of the issues presented.'" Id.
at 1234-35 (quoting Sierra Club v. Dep't of
Energy, 287 F.3d 1256, 1262-63 (10th Cir. 2002)). Other
relevant factors include: "(1) whether the issues
involved are purely legal, (2) whether the agency's
action is final, (3) whether the action has or will have an
immediate impact on the petitioner, and (4) whether
resolution of the issue will assist the agency in effective
enforcement and administration." Id. at 1235
n.3 (quoting Los Alamos Study Grp. v. Dep't of
Energy, 692 F.3d 1057, 1065 (10th Cir. 2012)). In sum,
"[a]n agency's action will be ripe for review where
'the scope of the controversy has been reduced to more
manageable proportions, and its factual components fleshed
out, by some concrete action applying the regulation to the
claimant's situation in a fashion that harms or threatens
to harm him.'" Mosier, 2016 WL 3597457, at
*9 (quoting Nat'l Park Hosp. Ass'n v. U.S.
Dep't of Interior, 538 U.S. 803, 807-08 (2003)).
arguments on this point are related to its arguments on
standing. The state claims that the administrative actions it
took in this case were not final. Rather, it argues, the
Plaintiffs could have requested a formal hearing and then a
rehearing before the OAH. See Kan. Admin. Regs.
§§ 30-7-68, 30-7-77. If they were dissatisfied with
the outcome of those proceedings, they could then have
challenged those decisions before a state appeals committee,
and then, finally, in Kansas state court. See Kan.
Admin. Regs. § 30-7-78; Kan. Stat. Ann. §§
district court disagreed, concluding that the
"termination notices represent concrete actions by the
KDHE that threatened to harm Plaintiffs by excluding [PPGP]
and PPSLR as Medicaid providers, notwithstanding the option
of an administrative appeal." Mosier, 2016 WL
3597457, at *9. The district court pointed out that if the
Providers didn't appeal, their final termination would
stand (which, we note, would have deprived the Patients of
their provider of choice). Id. at *10. Further, the
district court noted that "where threatened action by
government is concerned, we do not require a
plaintiff to expose himself to liability before bringing suit
to challenge the basis for the threat." Id.
(quoting Medimmune, Inc. v. Genetech, Inc., 549 U.S.
118, 128 & n.8 (2007)). Finally, the district court found
that the case involved primarily legal questions that did not
require agency expertise or significant factual development.
Id. Therefore, it concluded that the Plaintiffs'
claims were ripe for judicial review. Id. at 11.
we agree with the district court's thoughtful analysis,
this time on this case's fitness for judicial resolution.
"[B]oth parties have submitted evidence on these issues,
and . . . neither party requested an evidentiary hearing on
the motion for preliminary injunction." Id. at
10. This implies that no substantial factual disputes
remained, and that the questions we must now answer are
primarily legal questions. Kansas has presented its grounds
for terminating the Providers, and it agrees that the
propriety of the preliminary injunction rests on
"whether the Providers' conduct and corporate
affiliations justify the decision to terminate."
Appellant's Opening Br. at 29. Though Kansas
characterizes these issues as factual rather than legal, the
district court found it telling that after the parties had
one evidentiary hearing, even if it was informal, neither
party later requested an evidentiary hearing on the motion
for preliminary injunction. Mosier, 2016 WL 3597457,
at *10. Kansas presented three grounds for terminating the
Providers and supported its reasons with evidence. Further
agency action was therefore unnecessary for the district
court to determine "whether, as a matter of law, any of
those grounds permit [Kansas] to terminate [PPGP's and
PPSLR's] Medicaid provider agreement without violating
Medicaid's free-choice-of-provider requirement."
Gee, 862 F.3d at 456.
because the Providers had clearly stated that they did
"not intend to pursue" further administrative
appeal, Appellee's Response Br. at 58, the Patients'
injuries are "sufficiently likely to happen to justify
judicial intervention, " Gee, 862 F.3d at 456
(quoting Pearson v. Holder, 624 F.3d 682, 684 (5th
Cir. 2010)). Again, significantly, the Patients did not
participate in the April 29 informal hearing and they had no
administrative remedies available to them, so only
"through a § 1983 action" in federal court
could they "vindicate their federal right" to
select the qualified provider of their choice. Appellee's
Response Br. at 20; see Gee, 862 F.3d at 455. Absent
further administrative action by the Providers, the
terminations were final for justiciability purposes because
they would have become effective as of the dates stated in
the termination letters. In other words, because the future
held no uncertain events, the termination letters were not
"of a merely tentative or interlocutory nature."
Appellant's Opening Br. at 25-26 (quoting Friends of
Marolt Park v. U.S. Dep't of Transp., 382 F.3d 1088,
1093-94 (10th Cir. 2004)); see also Gonzales, 64
F.3d at 1499.
also contends that the Plaintiffs failed to show that they
would face hardship absent an injunction because possible
future injury does not amount to hardship and the
Providers' terminations were not final. We reject this
argument for the same reason already given. Because the
Providers chose not to appeal their terminations, the
terminations were final and would have become effective no
later than September 10. If this had happened, the Patients
would have likely "suffer[ed] hardship by being denied
access to the provider of their choice under 42 U.S.C. §
1396a(a)(23) and to medical services at [the Providers']
facilities." Gee, 862 F.3d at 457. Therefore,
the Plaintiffs' claims are ripe.
next claims that the district court erred by declining to
abstain under Younger. We review de novo the
district court's decision on whether to abstain under
Younger. Amanatullah v. Colo. Bd. of Med.
Exam'rs, 187 F.3d 1160, 1163 (10th Cir. 1999). We
first note that "abstention 'is the exception, not
the rule, ' and hence should be 'rarely . . .
invoked.'" Brown ex rel. Brown v. Day, 555
F.3d 882, 888 (10th Cir. 2009) (omission in original)
(quoting Ankenbrandt v. Richards, 504 U.S. 689, 705
abstention stems from the federal government's deference
to and respect for the state government and its function.
Younger, 401 U.S. at 44. "[F]or
Younger abstention to apply, there must be 'an
ongoing state judicial . . . proceeding, the presence of an
important state interest, and an adequate opportunity to
raise federal claims in the state proceedings.'"
Ute Indian Tribe of the Uintah & Ouray Reservation v.
Utah, 790 F.3d 1000, 1008 (10th Cir. 2015) (quoting
Seneca-Cayuga Tribe of Okla. v. Oklahoma ex rel.
Thompson, 874 F.2d 709, 711 (10th Cir. 1989)). We
conclude that no ongoing state proceedings precluded the
district court from exercising jurisdiction.
the issue is whether the Providers' right to appeal after
their April 29 evidentiary hearing and after the resulting
termination decisions would amount to an administrative
proceeding entitled to Younger abstention. To decide
this question, we ask "whether there is an
ongoing proceeding, " and then we "decide
whether that proceeding is the type of state
proceeding that is due the deference accorded by
Younger abstention." Brown, 555 F.3d
at 888 (first emphasis added).
Administrative Proceeding Not Ongoing
argues that state administrative proceedings were "well
underway" and remained ongoing because the Providers
still had the right to seek a formal hearing until August 10.
Appellant's Opening Br. at 31-32. The district court
disagreed, concluding that state administrative proceedings
had not yet begun. Mosier, 2016 WL 3597457, at
the Plaintiffs filed their § 1983 lawsuit and motion for
preliminary injunction, the following events had taken place:
(1) two different Kansas agencies had investigated the
Providers to determine whether they had improperly sold or
disposed of fetal tissue, and both agencies cleared the
Providers of wrongdoing; (2)Kansas had sent the Providers
notices of intent to terminate; (3) Kansas and the Providers
had participated in one evidentiary hearing; and (4) Kansas
had sent the Providers notices of decision to terminate with
a termination date of May 10. Kansas argues that these
decisions weren't final. But again, had the Providers
taken no further action-and nothing required the Providers to
take further action-those terminations would have become
effective. In other words, neither party would have had
anything left to do to execute the terminations; the clock
was running on certain termination.
the Providers received Kansas's notices of termination,
they had an optional right to challenge these decisions at an
administrative hearing. But "no administrative
proceeding commences until or unless [the Providers]
appeal, . . . and [the Providers] ha[ve] foresworn that
option." Planned Parenthood Gulf Coast, Inc. v.
Kliebert, 141 F.Supp.3d 604, 633 (M.D. La. 2015). Kansas
tries to turn the Providers' right to initiate future
state administrative proceedings into present, ongoing
proceedings, claiming that "[b]ut for the district
court's injunction, the state proceeding would have gone
forward." Appellant's Opening Br. at 35. Kansas is
mistaken: absent the district court's injunction, the
termination would have gone into effect. That is so because
the Providers had decided not to proceed with an
administrative appeal. So nothing would have stood in the way
of the termination being imposed on May 10 as promised absent
a unilateral reversal. Because the Providers chose not to
appeal this decision to the OAH, Kansas can point to no
ongoing state proceedings.
Not the Type of Proceeding Entitled to Younger
similar reasons, even if proceedings were ongoing, they
aren't the type requiring Younger abstention.
Relevant to this appeal, civil enforcement proceedings merit
abstention under Younger. Sprint Commc'ns,
Inc. v. Jacobs, 134 S.Ct. 584, 588 (2013). Civil
enforcement proceedings are generally "'akin to a
criminal prosecution' in 'important respects,
'" and "are characteristically initiated to
sanction the federal plaintiff, " meaning, in this case,
the Providers. Id. at 592 (quoting Huffman v.
Pursue, Ltd., 420 U.S. 592, 604 (1975)). Abstention in
such cases reflects "a proper respect for state
functions" when the party seeking relief from the
federal court "has an adequate remedy at law and will
not suffer irreparably [sic] injury if denied equitable
relief." Id. at 591 (quoting Younger,
401 U.S. at 43-44). We have also defined civil enforcement
proceedings as coercive rather than remedial. Brown,
555 F.3d at 890. Though the Supreme Court has disclaimed this
distinction "given the susceptibility of the
designations to manipulation, " Sprint
Commc'ns, 134 S.Ct. at 593 n.6, Brown still
provides valuable guidance for our analysis.
this framework, plaintiffs suing under § 1983 must
"exhaust state administrative remedies only where the
state administrative proceedings are coercive."
Brown, 555 F.3d at 890. Civil enforcement
proceedings are coercive when the state initiates the
proceedings and the target of those proceedings challenges
them as unlawful in federal court. Id. at 889;
Sprint Commc'ns, 134 S.Ct. at 592. On the other
hand, proceedings are remedial when the federal plaintiff
initiates them seeking a remedy for a state-inflicted wrong.
Brown, 555 F.3d at 890-91.
agree with the district court that the administrative
proceedings in this case were not civil enforcement actions
subject to Younger abstention. Mosier, 2016
WL 3597457, at *13. As the district court pointed out, the
Providers chose to participate in an evidentiary hearing on
April 29-this hearing was not mandatory. Id. The
proceedings that Kansas "initiated to sanction [the
Providers]" were completed with the final termination
notices-those notices were Kansas's sanctions.
Id. (quoting Sprint Commc'ns, 134 S.Ct.
at 592). After receiving the notices of termination, the
Providers took no further action. Nor were they required to
do so, because any further appeals would be optional avenues
to seek redress for their injuries. In other words, even if
Kansas's "administrative termination of the
Providers [was] coercive, intended to sanction the Providers
for misconduct, " Appellant's Opening Br. at 36,
that action was final when the Plaintiffs sued under §
1983. Therefore, any additional administrative proceedings
could not be characterized as civil enforcement proceedings,
meaning that contrary to Kansas's claims, the Providers
faced no exhaustion requirement under these
but importantly, we also note that though the Providers had
the right of appeal, the Patients did not. See
Mosier, 2016 WL 3597457, at *13; see Kliebert,
141 F.Supp.3d at 633. And the Patients are not subject to an
exhaustion requirement under § 1983. See Gee,
862 F.3d at 455 ("[T]he Individual Plaintiffs have no
administrative appeal rights, and they are not subject to
(nor could they be) any administrative exhaustion requirement
under 42 U.S.C. § 1983."); Planned Parenthood
Se., Inc. v. Bentley, 141 F.Supp.3d 1207, 1215 (M.D.
Ala. 2015) ("[T]he Eleventh Circuit, like every other
circuit to consider the issue, has concluded that exhaustion
is not required for claims under the Medicaid Act."). In
sum, the district court did not err in declining to abstain
under Younger because the administrative proceedings
were not ongoing, and were not the type of proceedings
meriting Younger abstention.
review a district court's preliminary injunction for
abuse of discretion. N.M. Dep't of Game & Fish v.
U.S. Dep't of Interior, 854 F.3d 1236, 1245 (10th
Cir. 2017). "An abuse of discretion occurs where a
decision is premised on an erroneous conclusion of law or
where there is no rational basis in the evidence for the
ruling." Id. (quoting Fish v. Kobach,
840 F.3d 710, 723 (10th Cir. 2016)). We will overturn a
preliminary injunction order only if it is arbitrary,
capricious, whimsical, or manifestly unreasonable. See
Pac. Frontier v. Pleasant Grove City, 414 F.3d 1221,
1231 (10th Cir. 2005). We review the district court's
factual findings "under the deferential 'clear
error' standard." Planned Parenthood Ass'n
of Utah v. Herbert, 828 F.3d 1245, 1252 (10th Cir. 2016)
(quoting Glossip v. Gross, 135 S.Ct. 2726, 2739
(2015)). We review de novo the district court's legal
determinations. Nova Health Sys. v. Edmondson, 460
F.3d 1295, 1299 (10th Cir. 2006).
injunctions are extraordinary remedies requiring that the
movant's right to relief be clear and unequivocal.
Wilderness Workshop v. U.S. Bureau of Land Mgmt.,
531 F.3d 1220, 1224 (10th Cir. 2008). To obtain a preliminary
injunction, a plaintiff must show "[(1)] that he is
likely to succeed on the merits, [(2)] that he is likely to
suffer irreparable harm in the absence of preliminary relief,
[(3)] that the balance of equities tips in his favor, and
[(4)] that an injunction is in the public interest."
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7,
we address the Patients' likelihood of success on the
merits, we first decide the threshold issue of whether the
Medicaid Act's free-choice-of-provider provision, §
1396a(a)(23), creates a private right of action for the
Patients. We then determine whether the Patients
are likely to succeed on the merits of their claim.
Private Right of Action Under § 1396a(a)(23)
comfortable joining four out of the five circuits that have
addressed this issue, and we too hold "that §
1396a(a)(23) affords the [Patients] a private right of action
under §1983." Gee, 862 F.3d at
457; see also Planned Parenthood of
Ariz. Inc. v. Betlach, 727 F.3d 960, 966-68 (9th Cir.
2013), cert. denied, 134 S.Ct. 1283 (2014) (reaching
the same conclusion); Planned Parenthood of Ind., Inc. v.
Comm'r of Ind. State Dep't of Health, 699 F.3d
962, 974-75 (7th Cir. 2012), cert. denied, 133 S.Ct.
2736, 133 S.Ct. 2738 (2013) (same); Harris v.
Olszewski, 442 F.3d 456, 461- 62 (6th Cir. 2006) (same).
But see Does v. Gillespie, 867 F.3d 1034, 1041-42
(8th Cir. 2017) (holding in a split decision that §
1396a(a)(23) does not grant Medicaid patients an enforceable
right). "Medicaid is a cooperative federal-state program
that provides federal funding for state medical services to
the poor." Frew ex rel. Frew v. Hawkins, 540
U.S. 431, 433 (2004). Medicaid "offers the States a
bargain: Congress provides federal funds in exchange for the
States' agreement to spend them in accordance with
congressionally imposed conditions." Armstrong v.
Exceptional Child Ctr., Inc., 135 S.Ct. 1378, 1382
(2015). This means that the federal government will share a
state's cost of providing medical care to residents who
can't afford it, but only if the state complies with the
Medicaid Act's requirements, including "federal
criteria governing matters such as who receives care and what
services are provided at what cost." Nat'l
Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519,
541-42 (2012); see also Atkins v. Rivera, 477 U.S.
154, 157 (1986) (explaining the federal-state partnership for
discussed, the statute at issue in this case is the Medicaid
Act's free-choice-of-provider provision, 42 U.S.C. §
1396a(a)(23). That provision states:
A state plan for medical assistance must . . . provide that
(A) any individual eligible for medical assistance . . . may
obtain such assistance from any institution, agency,
community pharmacy, or person, qualified to perform the
service or services required . . . who undertakes to provide
him such services . . . .
42 U.S.C. § 1396a(a)(23)(A). This section goes on to
state that "an enrollment of an individual eligible for
medical assistance in a primary care case-management system .
. ., a medicaid managed care organization, or a similar
entity shall not restrict the choice of the qualified person
from whom the individual may receive services under section
1396d(a)(4)(C) of this title." Id. at §
1396a(a)(23)(B). Section 1396d(a)(4)(C) specifically grants
Medicaid patients the right to choose their provider for
family-planning services. See Betlach, 727 F.3d at
964. So, under the free-choice-of-provider provision,
"any individual Medicaid recipient is free to choose any
provider so long as two criteria are met: (1) the provider is
'qualified to perform the service or services required,
' and (2) the provider 'undertakes to provide [the
recipient] such services.'" Id. at 967
(quoting 42 U.S.C. § 1396a(a)(23)(A)).
question here is whether the free-choice-of-provider
agreement creates a private right enforceable under 42 U.S.C.
§ 1983. To do so, (1) "Congress must have intended
that the provision in question benefit the plaintiff, "
(2) the plaintiff must have "demonstrate[d] that the
right assertedly protected . . . is not so 'vague and
amorphous' that its enforcement would strain judicial
competence, " and (3) the statute that creates the right
must be "couched in mandatory, rather than precatory,
terms." Blessing v. Freestone, 520 U.S. 329,
340-41 (1997) (quoting Wright v. City of Roanoke Redev.
& Hous. Auth., 479 U.S. 418, 431 (1987)). If
"the text and structure of a statute provide no
indication that Congress intends to create new individual
rights, " then the § 1983 plaintiff cannot proceed
further. Gonzaga Univ. v. Doe, 536 U.S. 273, 286
(2002). But if the plaintiff satisfies the three
Blessing requirements, "the right is
presumptively enforceable" under § 1983.
Id. at 284. Still, defendants can rebut this
presumption by showing that Congress either expressly
foreclosed private enforcement, or impliedly did so "by
creating a comprehensive enforcement scheme that is
incompatible with" private enforcement. Id. at
284 & n.4 (quoting Blessing, 520 U.S. at 341).
Congress Intended to Benefit Medicaid Patients
have the Fifth, Sixth, Seventh, and Ninth Circuits, we
conclude that the free-choice-of-provider provision confers
on Medicaid patients a private right of action. See
Gee, 862 F.3d at 457; Comm'r of Ind., 699
F.3d at 974-75; Betlach, 727 F.3d at 966-68;
Olszewski, 442 F.3d at 461-62. But see
Gillespie, 867 F.3d at 1046. First, we have no trouble
concluding that Congress unambiguously intended to confer an
individual right on Medicaid-eligible patients. See
Betlach, 727 F.3d at 966. "The statutory language
unambiguously confers such a right, " because it
mandates that "all state Medicaid plans provide that
'any individual eligible for medical assistance . . . may
obtain such assistance from any institution, agency,
community pharmacy, or person, qualified to perform the
service or services required.'" Id.
(omission in original) (emphasis omitted) (quoting 42 U.S.C.
§ 1396a(a)(23)). Further, "Section 1396a(a)(23)(B)
. . . carves out and insulates family planning services from
limits that may otherwise apply under approved state Medicaid
plans, assuring covered patients an unfettered choice of
provider for family planning services." Id. at
964 (citing §§ 1396a(a)(23)(B), 1396d(a)(4)(C)).
Congress has therefore clearly intended to grant a specific
class of beneficiaries-Medicaid-eligible patients-an
enforceable right to obtain medical services from the
qualified provider of their choice.
also claims that Armstrong supports its claim that
the free-choice-of-provider provision does not confer on the
Patients an enforceable right because in it, Justice Scalia
opined that Spending Clause legislation does not provide a
private right of action. 135 S.Ct. at 1387. But in
Armstrong, the Supreme Court analyzed an entirely
different section of the Medicaid Act, 42 U.S.C. §
1396a(a)(30)(A), concluding that this specific section did
not create a private right of action. Id. Section
1396a(a)(30)(A) provides that "[a] State plan for
medical assistance must . . . provide such methods and
procedures relating to the utilization of, and the payment
for" Medicaid services to ensure that Medicaid pays for
only necessary, efficient, economic, and high-quality care
while still setting reimbursement rates high enough to
encourage providers to continue serving Medicaid patients. In
his opinion, the last portion of which Justice Breyer
declined to join, thus making that portion a plurality,
Justice Scalia stated that "Section 30(A) lacks the sort
of rights-creating language needed to imply a private ...