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Zadeh v. Robinson

United States Court of Appeals, Fifth Circuit

July 2, 2019

DOCTOR JOSEPH A. ZADEH; JANE DOE, Patient, Plaintiffs - Appellants
v.
MARI ROBINSON, in her individual capacity and in her official capacity; SHARON PEASE, in her individual capacity; KARA KIRBY, in her individual capacity, Defendants - Appellees

          Appeals from the United States District Court for the Western District of Texas

          Before JOLLY, SOUTHWICK, and WILLETT, Circuit Judges.

         ON PETITION FOR REHEARING EN BANC

          LESLIE H. SOUTHWICK, CIRCUIT JUDGE:

         No member of the panel nor judge in regular active service requested that the court be polled on rehearing en banc. The petition for rehearing en banc is therefore DENIED. See Fed. R. App. P. and 5th Cir. R. 35. Treating the petition for rehearing en banc as a petition for panel rehearing, the petition is GRANTED. We withdraw our prior opinion, Zadeh v. Robinson, 902 F.3d 483 (5th Cir. 2018), and substitute the following.

         The Texas Medical Board executed an administrative subpoena on Dr. Joseph Zadeh's medical office. Thereafter, Dr. Zadeh and one of his patients sued several Board members under 42 U.S.C. § 1983, claiming that the Board's actions violated the Fourth Amendment. The district court partially granted the defendants' motion to dismiss and later granted their motion for summary judgment rejecting all remaining claims. We AFFIRM.

         FACTUAL AND PROCEDURAL BACKGROUND

         Plaintiff Dr. Joseph Zadeh appeals the dismissal of his Section 1983 claim against several members of the Texas Medical Board who he claims violated his constitutional rights through a warrantless search of his office and medical records. Dr. Zadeh, an internal medicine doctor, owns and operates a medical practice in Euless, Texas. One of his patients, Jane Doe, is also a plaintiff-appellant in this case.

         Dr. Zadeh was the subject of an administrative proceeding before the State Office of Administrative Hearings ("SOAH") for violations of the Board's regulations. The Drug Enforcement Agency ("DEA") also was investigating him. Indeed, it appears the Board first learned about allegations against Dr. Zadeh when the DEA filed a complaint with the Board about his prescribing practices in September 2013. The DEA investigator emailed a representative of the Board, stating, "I'm at a point in the criminal case that I need to interview Dr. Zadeh and review his patient files." The Board then initiated an investigation.

         As part of this investigation, Defendants Sharon Pease and Kara Kirby, who were investigators with the Board, served an administrative subpoena on Dr. Zadeh on October 22, 2013. The subpoena had the electronic signature of Defendant Mari Robinson, who was the Executive Director of the Board. The subpoena was for the immediate production of the medical records of sixteen of Dr. Zadeh's patients. Two DEA agents who were investigating related criminal allegations accompanied Kirby and Pease.

         The district court found the "facts surrounding the execution of the subpoena" to be "largely undisputed." Dr. Zadeh was not present when the investigators arrived. The subpoena was handed to the doctor's assistant. The investigators sat in the medical office waiting room to give the doctor time to appear. While they waited, the assistant spoke on the phone with Dr. Zadeh, his lawyer, and his brother who also is a lawyer. The assistant testified that after these calls had occurred but no permission to proceed had been given, the investigators told her they would suspend Dr. Zadeh's license if the records they sought were not produced. The investigators admit something was said that was akin to a promise of some vague "disciplinary action." What was said at that point is at least unclear. The assistant eventually complied, taking the defendants into a conference room and delivering the requested records to them. Although most of their time was spent inside the public waiting area or conference room, the investigators also approached the medical assistant to ask for help while she was in exam rooms and later in a storage room.

         As a result of that search, Dr. Zadeh and his patient, Jane Doe, sued Robinson, Pease, and Kirby in their individual capacities and Robinson in her official capacity in the United States District Court for the Western District of Texas. They alleged the defendants' actions violated their Fourth Amendment, due process, and privacy rights. The plaintiffs sought monetary damages under 42 U.S.C. § 1983 as well as declaratory relief. The defendants moved to dismiss the claims on these grounds: (1) the plaintiffs lacked standing; (2) the Younger abstention doctrine barred the requests for declaratory relief; (3) the claim against Robinson in her official capacity was barred by the doctrine of sovereign immunity; (4) the doctrine of qualified immunity applied to the claims against the defendants in their individual capacities.

         In ruling on the motion to dismiss, the district court held Dr. Zadeh had standing to pursue declaratory relief, but Jane Doe did not. Nonetheless, the district court concluded that "the Younger abstention doctrine require[d] [it] to abstain from adjudicating Plaintiff Zadeh's claims for declaratory relief." The district court also held that sovereign immunity barred the plaintiffs' claims for monetary damages against Robinson in her official capacity. Finally, the court concluded that the defendants were entitled to qualified immunity for the privacy and due process claims. The only part of the suit left, then, was Dr. Zadeh's claim that the defendants violated his clearly established Fourth Amendment rights during the search of his office.

         The defendants moved for summary judgment on "whether Defendants exceeded their statutory subpoena authority by searching and inspecting Plaintiff's office and records." Although the plaintiffs alleged that the investigators performed a thorough search of Dr. Zadeh's office, the district court found that the record did not support this allegation. Instead, the district court determined that the "Defendants' presence at Plaintiff's office was solely to execute the subpoena instanter." The district court also held that Robinson was not liable as she neither affirmatively participated in the alleged search nor implemented unconstitutional policies that caused the alleged constitutional deprivation. Further, there was "no evidence Defendants Pease and Kirby inspected Plaintiff's office or searched his records." The plaintiffs timely appealed.

         DISCUSSION

         The plaintiffs appeal both the order granting the motion to dismiss in part and the order granting the motion for summary judgment. Although we review both de novo, a different legal standard applies to each:

In the former, the central issue is whether, in the light most favorable to the plaintiff, the complaint states a valid claim for relief. In the latter, we go beyond the pleadings to determine whether there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.

St. Paul Mercury Ins. Co. v. Williamson, 224 F.3d 425, 440 n.8 (5th Cir. 2000) (citations omitted).

         We first address the plaintiffs' challenge to the district court's grant of qualified immunity, evaluating whether clearly established law prohibited the defendants' conduct. Next, we discuss whether the district court erred in abstaining from deciding the plaintiffs' claims for declaratory judgment. Finally, we analyze whether Robinson was liable in her supervisory capacity.

         I. Grant of qualified immunity

         "The doctrine of qualified immunity protects government officials from civil damages liability when their actions could reasonably have been believed to be legal." Morgan v. Swanson, 659 F.3d 359, 370-71 (5th Cir. 2011). Officials are entitled to qualified immunity "unless (1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was 'clearly established at the time.'" District of Columbia v. Wesby, 138 S.Ct. 577, 589 (2018) (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)).

         Using this framework, we analyze the plaintiffs' arguments that clearly established law prohibited the defendants' execution of the subpoena instanter. The plaintiffs offer two theories for why the defendants' conduct was unconstitutional. First, they argue it was a warrantless search that did not satisfy the administrative exception. Second, they argue it was a pretextual search and thus unconstitutional.

         a. Warrantless search

         The plaintiffs argue the Board violated the Fourth Amendment when it demanded immediate compliance with its administrative subpoena. We have previously considered a challenge to a subpoena instanter executed by the Texas Medical Board. See Cotropia v. Chapman, 721 Fed.Appx. 354 (5th Cir. 2018). In that nonprecedential opinion, we held: "Absent consent, exigent circumstances, or the like, in order for an administrative search to be constitutional, the subject of the search must be afforded an opportunity to obtain precompliance review before a neutral decisionmaker." Id. at 358 (quoting City of Los Angeles v. Patel, 135 S.Ct. 2243, 2452 (2015)).

         In that case, the physician at the center of a Board investigation pled sufficient facts to overcome qualified immunity. Id. at 361. The doctor alleged that a Board member "violated the clearly established right to an opportunity to obtain precompliance review of an administrative subpoena before a neutral decisionmaker" when he took documents from the physician's office over objections from the office receptionist. Id. at 357. Relying on Supreme Court precedent, we held that it was clear at the time that "prior to compliance, Cotropia was entitled to an opportunity to obtain review of the administrative subpoena before a neutral decisionmaker." Id. at 358 (citing See v. City of Seattle, 387 U.S. 541, 545 (1967); Donovan v. Lone Steer, Inc., 464 U.S. 408, 415 (1984)). Similarly, the demand to turn over Dr. Zadeh's medical records immediately did not provide an opportunity for precompliance review. We agree, then, that a requirement of precompliance review in many, if not most, administrative searches had been clearly established by Supreme Court precedent prior to the search here.

         The defendants acknowledge this law but maintain there was no constitutional violation because this search fell into an exception to the general rule requiring precompliance review. We next examine that argument.

         i. Closely regulated industry

         No opportunity for precompliance review is needed for administrative searches of industries that "have such a history of government oversight that no reasonable expectation of privacy" exists for individuals engaging in that industry. Marshall v. Barlow's, Inc., 436 U.S. 307, 313 (1978). Even so, warrantless inspections in closely regulated industries must still satisfy three criteria: (1) a substantial government interest, (2) a regulatory scheme that requires warrantless searches to further the government interest, and (3) "a constitutionally adequate substitute for a warrant." New York v. Burger, 482 U.S. 691, 702-03 (1987) (quoting Donovan v. Dewey, 452 U.S. 594, 603 (1981)).

         Cotropia did not resolve whether the Board's use of administrative subpoenas satisfied the Burger criteria because the issue was not raised until oral argument. Cotropia, 721 Fed.Appx. at 360 & n.6. As a result, the panel's holding was expressly limited to concluding that the Board's demand for immediate compliance with the subpoena did not satisfy the general administrative exception to the warrant requirement. The argument has timely been raised here, though. Thus, we must discuss whether the Burger exception permitted the Board's administrative subpoena and whether that law was clearly established at the time of its execution.

         To categorize industries under Burger, courts consider the history of warrantless searches in the industry, how extensive the regulatory scheme is, whether other states have similar schemes, and whether the industry would pose a threat to the public welfare if left unregulated. See Burger, 482 U.S. at 704; Patel, 135 S.Ct. at 2454. The defendants characterize the relevant industry in two different ways. We evaluate first whether the practice of medicine is a closely regulated industry and then whether the practice of prescribing controlled substances is closely regulated.

         Acknowledging that the medical profession is subject to close oversight, the district court emphasized the absence of a history of warrantless inspections to conclude that the medical profession was not a closely regulated industry. Important to its conclusion was the confidential nature of the doctor-patient relationship: "It strains credibility to suggest that doctors and their patients have no reasonable expectation of privacy." On appeal, the defendants all but concede that there is not a lengthy history of warrantless searches. They instead emphasize the extensive regulatory scheme governing the practice of medicine and the risk that the industry could pose to the public welfare.

         There is no doubt that the medical profession is extensively regulated and has licensure requirements. Satisfying the Burger doctrine requires more. The Supreme Court instructs "that the doctrine is essentially defined by 'the pervasiveness and regularity of the federal regulation' and the effect of such regulation upon an owner's expectation of privacy." Burger, 482 U.S. at 701 (quoting Dewey, 452 U.S. at 605-06). Another key factor is "the duration of a particular regulatory scheme." Id. (quoting Dewey, 452 U.S. at 606).

         The Board cites several laws or regulations governing the behavior of doctors. Outside of citing Texas's licensure requirement for physicians, the regulations the Board cites do not apply to the entire medical profession. Instead, they target the practice of prescribing controlled substances. As examples, the Board states that doctors must register with the DEA to prescribe controlled substances, Tex. Health & Safety Code § 481.061; that prescriptions of controlled substances are monitored by several law enforcement agencies, id. §§ 481.067, 481.075, 481.076; and that pain management clinics must register as such, which allows the Board to inspect them from time to time, Tex. Occ. Code §§ 168.101, 168.052; 37 Tex. Reg. 10079, 10079-80 (2012), adopted 38 Tex. Reg. 1876, 1876-77 (2013), amended 39 Tex. Reg. 297, 297-98 (2014) (former 22 Tex. Admin. Code § 195.2); 35 Tex. Reg. 1924, 1925-26 (2010), adopted 35 Tex. Reg. 3281, 3281-82 (2010), amended 43 Tex. Reg. 768, 768-74 (2018) (former 22 Tex. Admin. Code § 195.3). The Board also refers us to laws and regulations that similarly regulate anesthesia. These, though, do not amount to pervasiveness and regularity of regulation over the medical industry as a whole as Burger requires. Instead, only specific groups of doctors may have been put on notice that the Board may perform some inspections.

         We also do not see in the medical profession an entrenched history of warrantless searches. Its absence is relevant, though not dispositive, to our issue. Burger, 482 U.S. at 701. For example, when the Court held that the liquor industry was closely regulated, it mentioned that English commissioners could inspect brewing houses on demand in the 1660s, and that Massachusetts passed a similar law in 1692. Colonnade Catering Corp. v. United States, 397 U.S. 72, 75 (1970). It then referred to a 1791 federal law that has continued in various forms, permitting federal officers to perform warrantless searches of distilleries and imposing an excise tax on distilled liquor. Id. Because the focus there was "the liquor industry long subject to close supervision and inspection," the Court concluded that the Fourth Amendment did not prohibit the warrantless searches authorized by Congress. Id. at 77. Here, there is no such history.

         In considering the reasonable expectation of privacy, we also consider the sensitive nature of medical records. The Ninth Circuit explained that "the theory behind the closely regulated industry exception is that persons engaging in such industries, and persons present in those workplaces, have a diminished expectation of privacy." Tucson Woman's Clinic v. Eden, 379 F.3d 531, 550 (9th Cir. 2004). We agree with that court's observation that in medical contexts, the expectation of privacy likely is heightened. Id.

         Admittedly, federal regulations do exempt the Board from the privacy requirements of the Health Insurance Portability and Accountability Act ("HIPAA"). 45 C.F.R. § 164.512. Further, the Board cites Texas laws providing that where the Board does obtain information, it is subject to confidentiality requirements. See Tex. Occ. Code §§ 159.002; 159.003(a)(5); 164.007(c). That HIPAA permits disclosure to the Board and that the regulations governing the Board continue to protect that information from disclosure does not mean that the Board is entitled to access to that information through an administrative search without allowing an opportunity for precompliance review.

         We conclude, then, that the medical industry as a whole is not a closely regulated industry for purposes of Burger. Still, even if the medical profession at large cannot be said to fall within these Burger factors, it is possible that a subset, such as those who prescribe controlled substances, would do so. Because the parties focus their analysis of whether there is a closely regulated industry on the medical profession as a whole and not on pain management clinics, we assume only for purposes of our analysis today that pain management clinics are part of a closely regulated industry and that Dr. Zadeh was operating such a clinic even if his clinic was not certified as one. Such assumptions are appropriate in this case because ultimately our resolution turns on whether the relevant law was clearly established. At this point, we can at least say that the law was not clearly established whether pain management clinics are part of a closely regulated industry. The remaining relevant law, established with clarity or not, is analyzed below.

         ii. Burger exception requirements

         Even were we to accept the defendants' argument that doctors prescribing controlled substances are engaging in a closely regulated industry with less reasonable expectations of privacy, administrative searches of such industries still must satisfy the three Burger criteria. There is no meaningful dispute in this case as to the first two factors, namely, that the State has a substantial interest in regulating the prescription of controlled substances and that the inspection of a doctor's records would aid the Government in regulating the industry. We thus analyze only whether the statutory scheme is a proper substitute for a search warrant. The Board relies on its authority to issues subpoenas and to inspect pain management clinics. The principal response from plaintiffs is that neither provides a constitutionally adequate substitute for a warrant.

         In order for a warrant substitute authorized by statute to be constitutionally adequate, "the regulatory statute must perform the two basic functions of a warrant: it must advise the owner of the commercial premises that the search is being made pursuant to the law and has a properly defined scope, and it must limit the discretion of the inspecting officers." Burger, 482 U.S. at 703. The relevant statute provides: "The board may issue a subpoena or a subpoena duces tecum to compel the attendance of a witness and the production of books, records, and documents." Tex. Occ. Code. § 153.007(a). The Board argues that the statute, when considered with the following regulation, limits the discretion of the officials. The regulation provides that after a "request by the board or board representatives, a licensee shall furnish to the board copies of medical records or the original records within a reasonable time period, as prescribed at the time of the request." 22 Tex. Admin. Code § 179.4(a). The regulation defines "reasonable time" as "fourteen calendar days or a shorter time if required by the urgency of the situation or the possibility that the records may be lost, damaged, or destroyed." Id.

         The district court held that a search using the Board's subpoena authority did not satisfy the third factor of the Burger test as it was "purely discretionary," allowing the Board "to choose which doctors to subpoena and to do so at a frequency it determines." To evaluate that holding, we consider the limits that do exist: only licensees are subject to the subpoena; only medical records must be produced; and it is the Board or its representatives who will be asking for the records. As the district court stated, though, there is no identifiable limit on whose records can properly be subpoenaed.

         As to inspections of pain management clinics, the Board argues that some limits to its authority are set by the statute permitting it to inspect pain management clinics. Specifically, the statute allows it to examine "the documents of a physician practicing at the clinic, as necessary to ensure compliance with this chapter." Tex. Occ. Code. § 168.052(a). Providing more specific guidance, the regulation in effect at the time provided:

The board may conduct inspections to enforce these rules, including inspections of a pain management clinic and of documents of a physician's practice. The board may contract with another state agency or qualified person to conduct these inspections.

35 Tex. Reg. 1925, 1925-26 (2010), adopted 35 Tex. Reg. 3281, 3281-82 (2010), amended 43 Tex. Reg. 768, 768-74 (2018) (former 22 Tex. Admin. Code § 195.3).

         The district court found this inspection authority, like the subpoena authority, to be "purely discretionary." The governing criteria for an inspection is that the target be a pain management clinic, that the Board performs the inspection, and that the purpose for the search be to determine compliance with pain management rules. We agree with the district court, though, that these requirements suffered from the same fatal Burger ¶aw as the subpoena authority: they did not limit how the clinics inspected are chosen.

         In summary, there are insufficient limits on the discretion of the Board to satisfy the Burger requirements, whether considering the medical profession in general or as to pain management clinics. What is left is the question of whether the law on these points was clearly established and, regardless, whether the search was invalid as pretextual.

         iii. Clearly established law for qualified immunity

         To summarize, we have concluded there was a violation of Dr. Zadeh's constitutional rights. That is true even with our twin assumptions that pain management clinics are part of a closely regulated industry and that Dr. Zadeh operated a pain management clinic. Nonetheless, the defendants are entitled to qualified immunity unless the constitutional requirements they violated were clearly established at the time of their actions. Reichle, 566 U.S. at 664. We hold 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. We also hold, even assuming that pain management clinics are part of a closely regulated industry, that 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. We need to analyze, though, whether that last statement of law was clearly established when this search occurred.

         Our analysis of the clarity of relevant law is objective, meaning it does not focus on the specific defendants' knowledge. "The touchstone of this inquiry is whether a reasonable person would have believed that his conduct conformed to the constitutional standard in light of the information available to him and the clearly established law." Goodson v. City of Corpus Christi, 202 F.3d 730, 736 (5th Cir. 2000). "[E]ven law enforcement officials who 'reasonably but mistakenly [commit a constitutional violation]' are entitled to immunity." Glenn v. City of Tyler, 242 F.3d 307, 312-13 (5th Cir. 2001) (quoting Goodson, 202 F.3d at 736). For the law to be clearly established, there must be a close congruence of the facts in the precedent and those in the case before us. Wesby, 138 S.Ct. at 589-90. "The precedent must be clear enough that every reasonable official would interpret it to establish the particular rule the plaintiffs seek to apply." Id. at 590.

         Defendants rely on one of our precedents that reviewed an administrative search of a dentist's office by agents of the Texas State Board of Dental Examiners, accompanied by Department of Public Safety officials. Beck v. Tex. State Bd. of Dental Exam'rs, 204 F.3d 629, 632 (5th Cir. 2000). Dentist Beck was a target because of complaints filed against him for prescribing controlled substances. Id. We concluded that the search did not violate the plaintiff's clearly established rights. Id. at 638-39. We applied the Burger exception and determined there was a significant state interest in regulating dentists' use of controlled substances; the search was conducted pursuant to two regulatory schemes; and there was an adequate substitute for a warrant where the statute permitted the official to conduct inspections during "reasonable times" after "stating his purpose" and presenting his credentials to the owner. Id. at 638-39. In light of Beck, the Board argues that reasonable investigators could have believed the Burger exception permitted the execution of the subpoena as they too were investigating prescriptions of controlled substances within the medical industry.

         The plaintiffs insist that Beck is "patently distinguishable" for the same reason argued in the separate opinion here. The clarity of any possible distinction, though, must be viewed through the lens that the law, including a distinction, must be "sufficiently clear that every reasonable official would understand that what he is doing is unlawful" at that time. Wesby, 138 S.Ct. at 589 (quotation marks omitted). That means "existing law must have placed the constitutionality of the officer's conduct 'beyond debate." Id. Perhaps most relevant, the "legal principle [must] clearly prohibit the officer's conduct in the particular circumstances before him. The rule's contours must be so well defined that it is 'clear to a reasonable officer that his conduct was unlawful in the situation he confronted.'" Id. at 590 (emphasis added).

         The claimed sufficient distinction here is that the regulations and statutes under which the investigators in Beck acted explicitly permitted inspections without prior notice. See Beck, 204 F.3d at 639. The Beck court discussed that point at the end of the opinion, as it addressed several questions regarding whether what occurred was a valid administrative search of a closely regulated industry. Id. The final subject the court discussed was that one of the statutes under which the inspection was conducted did not require that prior notice be given. Id. (quoting Section 5.01(c) of the Texas Controlled Substances Act.) That is no small distinction, and we conclude today that absent similar statutory or perhaps regulatory authority that dispenses with prior notice, a search such as occurred here cannot be conducted without prior notice. The issue for us, though, is whether that law was clearly established at the time of the search we are reviewing today.

         As we already stated, the right is not clearly established unless it is beyond debate using an objective test. We have discussed the intricacies of New York v. Burger, which permit warrantless searches when they satisfy a three-factor test. Our Beck decision held that the search there was of a closely regulated industry, and therefore went through the three Burger factors. The discussion of the specific statutory authorization for no-notice inspections was to show that the third Burger factor was satisfied, which is that an adequate substitute for a warrant existed. We did not say in Beck that the only sufficient substitute under Burger was a statute authorizing no-notice searches. We did hold that "under these circumstances, Beck does not show a violation of a clearly established constitutional right." Beck, 204 F.3d at 639.

         Instead of clearly establishing the principle that prior notice of a regulatory search must be given unless the authorizing statute explicitly announces it is unnecessary, Beck applied the general Burger principle to the facts of that case that a warrant substitute authorized by a "regulatory statute must perform the two basic functions of a warrant: it must advise the owner of the commercial premises that the search is being made pursuant to the law and has a properly defined scope, and it must limit the discretion of the inspecting officers." Burger, 482 U.S. at 703. In the Beck situation, that factor was satisfied with the statutory language already discussed. We cannot see, though, that every reasonable official prior to conducting a search under the circumstances of this case would know this Burger factor was not satisfied. We think some, even many, reasonable officers would believe under the third Burger factor that the owner of the premises was charged with knowledge that a statute authorized the search, and the officers would reasonably believe the scope of the search and the discretion of the officials was validly limited. We have held that the statute fails this standard, but we do not hold that all reasonable officers would have known that, until now.

         Therefore, although Beck does not control the constitutionality of the Board's actions in this case, it does weigh in favor of the defendants' receiving qualified immunity. We find more guidance from cases where a statute did not clearly limit the official's discretion in selecting who would be subject to an administrative search. In one, we held that the statute provided a constitutionally adequate substitute for a warrant where the statute provided:

The licensing agency shall make or cause to be made inspections relative to compliance with the laws and regulations governing the licensure of child care facilities. Such inspections shall be made at least once a year but additional inspections may be made as often as deemed necessary by the licensing agency.

See Ellis v. Miss. Dep't of Health, 344 Fed.Appx. 43 (5th Cir. 2009) (citing Miss. Code. Ann. § 43-20-15). Though that opinion is not precedential, we agree with its reasoning.

         We also upheld an administrative search where, despite limits on the conduct of an officer after a traffic stop, there were not clear limits on an officer's discretion as to whom to stop. See United States v. Fort, 248 F.3d 475, 482 (5th Cir. 2001). Because we have not so far required there to be a clear limit on determining whom officials select for an administrative search, the defendants reasonably could have believed that the administrative scheme here provided a constitutionally adequate substitute for a warrant.

         Finally, the plaintiffs argue that even if qualified immunity might apply to defendants who conducted a proper search, the defendants did not follow the statutory scheme. Therefore, they assert, caselaw in which the legal requirements for the search were followed is inapplicable. The claims of overstepping authority, though, are minor. First, while the medical assistant was waiting for Dr. Zadeh to appear, there is evidence one of the investigators approached the assistant at her desk, then followed her into two exam rooms. While in one of the rooms, the investigator asked if controlled substances were kept in the room. Second, there is evidence this same investigator also approached the assistant while the latter was in a storage room and asked if the investigators could use the medical office's copy machine. The district court said there was no evidence the investigator ever looked at any files or went somewhere in the medical office without the assistant. Finally, as soon as the investigators were asked to leave the office, they did so. We agree with the district court that there is "no support in the record" to sustain the allegation the investigators did a "thorough search and inspection." The factual basis for deviations from search protocols is insubstantial.

         In conclusion, the unlawfulness of the defendants' conduct was not clearly established at the time of the search.

         b. ...


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