Lisa Hill Leonard v. The Alabama State Board of Pharmacy

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11124
____________________
LISA HILL LEONARD,
An individual,
LEONARD DRUGS INC,
An Alabama Corporation d.b.a. The Drug Store,
Plaintiffs-Appellants,
versus
THE ALABAMA STATE BOARD OF PHARMACY,
A State Licensing Board,
BRENDA DENSON,
CHRIS PHUNG,
ROBERT COLBURN,
CHRISTY K. GARMON,
GARY MOUNT,
Individually and in their official capacities as Members
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2 Opinion of the Court 22-11124
of the Alabama State Board of Pharmacy,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Alabama
D.C. Docket No. 3:21-cv-00596-ECM-SMD
____________________
Before WILSON, JILL PRYOR, Circuit Judges, and RUIZ, * District
Judge.
WILSON, Circuit Judge:
In the early days of the Covid-19 pandemic, both State and
Federal governments partnered with private citizens and busi-
nesses to “Stop the Spread” of the virus. The government invested
billions of dollars in the research, development, and production of
tests to detect existing infections and vaccines to arrest the preva-
lence of future infections. Thousands of businesses, schools, hos-
pitals, and community organizations across the nation mobilized
to distribute tests and vaccines to millions of people. To encourage
voluntary participation in the distribution of these
*Honorable Rodolfo A. Ruiz II, United States District Judge for the Southern
District of Florida, sitting by designation.
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22-11124 Opinion of the Court 3
countermeasures, the Secretary of Health and Human Services
(HHS) invoked the Public Readiness and Emergency Preparedness
Act (PREP Act), to provide legal immunity for the individuals and
organizations who provided these countermeasures to the public.
Based in Auburn, Alabama, Lisa Leonard and her pharmacy
were one of the thousands of businesses who answered the call to
provide Covid-19 tests to the public. However, the Alabama Board
of Pharmacy (the Board) concluded that Leonard’s administration
of these tests fell short of the medical safety standards required un-
der Alabama law. When the Board instituted an administrative en-
forcement proceeding against Leonard, she sought to avail herself
of the legal immunity provided by the Secretary’s PREP Act Dec-
laration. Leonard filed this federal suit, seeking to enjoin the Board
from even considering the charges against her. The district court
exercised its discretion to abstain under Younger v. Harris, 401 U.S.
37 (1971) and declined to intervene in the Board’s proceedings.
This appeal followed.
After careful review of the record, and with the benefit of
oral argument, we affirm the district court’s decision to abstain un-
der Younger. Leonard and her business have an adequate oppor-
tunity to raise their federal immunity argument before the Board,
and none of the exceptions to Younger abstention apply in this
case.
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4 Opinion of the Court 22-11124
I. Background
A.
On January 31, 2020, the Secretary of HHS declared a public
health emergency in the United States following the outbreak of
the Covid-19 pandemic. Two months later, on March 17, 2020, the
Secretary issued a declaration pursuant to the PREP Act in order
“to provide liability immunity for activities related to medical
countermeasures against COVID-19.” Declaration Under the Pub-
lic Readiness and Emergency Preparedness Act for Medical Coun-
termeasures Against COVID-19, 85 Fed. Reg. 15,198 (Mar. 17,
2020) (the Declaration).
Under the Declaration, “covered persons” receive PREP Act
immunity for administering “covered countermeasures.” Covered
countermeasures include “any diagnostic [test] . . . used to treat, di-
agnose, cure, prevent, or mitigate COVID-19.” Id. at 15,202. On
April 8, 2020, HHS issued guidance advising that pharmacists were
covered persons for purposes of the Declaration and thus entitled
to PREP Act immunity. U.S. Dep’t of Health and Hum. Servs.,
Guidance for Licensed Pharmacists, COVID-19 Testing, and Im-
munity under the PREP Act (Apr. 8, 2020) [hereinafter, Pharmacist
Guidance], https://www.phe.gov/Preparedness/legal/pre-
pact/Documents/pharmacist-guidance-COVID19-PREP-Act.pdf.
B.
Lisa Leonard and her husband, Craig, are licensed pharma-
cists in Auburn, Alabama. Together they owned and operated
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“The Drug Store” pharmacy. The Drug Store began administering
antibody tests at the end of April 2020, and between April and Sep-
tember of 2020 it administered more than 5,900.
Leonard’s trouble with the Board began during the summer
of 2020. Board investigator Sean Malloy first visited The Drug
Store on June 14, 2020, to address alleged customer privacy com-
plaints. Later, on July 27, 2020, Chuck Beams, a competing phar-
macist at a local hospital, contacted the Board with concerns about
testing practices at The Drug Store. Malloy began corresponding
with Beams about his complaint and, at Malloy’s request, Beams
provided a written statement to Malloy on July 29. Later, after
Beams requested an update on his complaint, Malloy responded on
August 7, 2020, stating that they would be meeting with Leonard
soon and “[i]f all goes the way we plan then I believe we will stop
any further issues from The Drug Store.”
Meanwhile, investigator Glenn Wells called Leonard to dis-
cuss Beams’s complaint. This was not the first time that Wells and
Leonard had crossed paths. In 2005, Leonard accused Wells of
brandishing a gun at her, though Wells denies this. On August 26,
2020, Malloy and Wells visited The Drug Store in person and spoke
with Leonard about the administration of antibody tests at the
pharmacy. A month later, a third investigator named Mark Delk
visited the pharmacy. He requested that Leonard and her husband
provide a written statement about the 2005 incident with Wells.
Following these interactions, Leonard and her pharmacy
voluntarily stopped providing antibody tests without any Board
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action. Nearly seven months later, the Board filed a Statement of
Charges against Leonard and The Drug Store. The charges alleged
that the way the pharmacy administered the antibody tests violated
Alabama’s pharmacy regulations and the Board’s ethics rules.
Among other things, the Charges alleged that the pharmacy mis-
represented the nature of the antibody tests to its customers, failed
to safely dispose of lancets 1 used to administer the tests, and used
alcohol swabs improperly when administering the tests.
Leonard filed this suit in the Middle District of Alabama.
Her complaint, as amended, alleged that the Board’s charges were
violations of antitrust laws, ultra vires, preempted, and unconstitu-
tional. Leonard requested a preliminary injunction to restrain the
Board from proceeding on its Statement of Charges. In particular,
Leonard argued that the PREP Act’s “Targeted [L]iability [P]rotec-
tions,” 42 U.S.C. § 247d-6d, immunized her. The Board moved to
dismiss the complaint for failure to state a claim, and the district
court agreed as to all but the PREP Act claims. Regarding these,
the district court abstained from federal jurisdiction pursuant to
Younger v. Harris, 401 U.S. 37 (1971), and did not reach the merits.
Leonard timely appealed the abstention decision.
1 A lancet is a small, sharp, spring-loaded device that takes small blood sam-
ples.
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II. Standard of Review
We review a district court’s decision to abstain for abuse of
discretion, but it is always an abuse of discretion for a court to apply
an incorrect legal standard. Hughes v. Att’y Gen. of Fla., 377 F.3d
1258, 1262 (11th Cir. 2004). Further, “only the clearest of justifica-
tions merits abstention,” and where Younger’s prerequisites are
not satisfied, federal courts must exercise their jurisdiction. Tokyo
Gwinnett, LLC v. Gwinnett Cnty., 940 F.3d 1254, 1266–67 (11th
Cir. 2019) (quotation marks omitted and alteration adopted) (quot-
ing Jackson-Platts v. Gen. Elec. Capital Corp., 727 F.3d 1127, 1140
(11th Cir. 2020)). However, when the prerequisites are met, “fed-
eral courts may and should withhold equitable relief to avoid inter-
ference with state proceedings.” 31 Foster Child. v. Bush, 329 F.3d
1255, 1274 (11th Cir. 2003) (emphasis added).
III. Principles of Abstention
While the federal courts have a “virtually unflagging” obli-
gation to hear the cases before them, the Younger doctrine pre-
sents a narrow exception. Id. (quoting Colo. River Water Conser-
vation Dist. v. United States, 424 U.S. 800, 817 (1976)). Younger
“requires a federal court to abstain where a plaintiff’s federal claims
could be adjudicated in a pending state judicial proceeding.” Dea-
kins v. Monaghan, 484 U.S. 193, 202 (1988). This reflects the norms
of comity and respect inherent in “Our Federalism.” Younger, 401
U.S. at 44. But “Our Federalism” does not require “blind deference
to ‘States’ Rights,’” id., and not every state judicial proceeding re-
quires federal abstention. The Supreme Court has recognized only
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8 Opinion of the Court 22-11124
three types of state proceedings where abstention is warranted: (1)
“criminal prosecutions”; (2) “civil enforcement proceedings”; and
(3) “civil proceedings involving certain orders that are uniquely in
furtherance of the state courts’ . . . judicial functions.” New Orle-
ans Pub. Serv., Inc. v. Council of the City of New Orleans, 491 U.S.
350, 367–68 (1989) (NOPSI) (declining to extend Younger to state
judicial review of legislative or ratemaking actions).
When a federal lawsuit overlaps with one of these types of
state proceedings, and the federal court is asked to interfere in the
state proceeding, the federal court must consider whether the three
factors enumerated in Middlesex County Ethics Committee v. Gar-
den State Bar Association, 457 U.S. 423, 432 (1982), are present:
First, is the state proceeding “ongoing” at the same time as the fed-
eral one? Second, does the state proceeding implicate an “im-
portant state interest”? And third, does the state proceeding pro-
vide an “adequate opportunity” to raise the federal claim? Tokyo
Gwinnett, 940 F.3d at 1268 (citing Middlesex, 457 U.S. at 432).
When these three Middlesex factors are met, Younger ab-
stention is warranted, and the federal court should abstain and al-
low the state proceeding to go forward. But, Younger recognized
that in certain “extraordinary circumstances” a federal court should
refuse to abstain even if the other factors warrant it. Younger, 401
U.S. at 45. We have summarized these circumstances, recognizing
that a federal court should refuse to abstain if: “(1) there is evidence
[the] state proceedings [are] motivated by bad faith, (2) irreparable
injury would occur, or (3) there is no adequate alternative state
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forum where the constitutional issues can be raised.” Hughes, 377
F.3d at 1263 n.6 (citing Younger, 401 U.S. at 45, 53–54). 2
IV. Middlesex Factors
The parties agree that the Board’s proceeding is a “civil en-
forcement action” to which Younger applies, that it was both “on-
going” when the federal suit was filed, and that Alabama has an
“important state interest” in enforcing its pharmacy regulations.
Thus, we train our attention on the third Middlesex factor: whether
the Board’s proceedings provide Leonard an “adequate oppor-
tunity” to assert her PREP Act claims. We conclude they do.
The burden is on the plaintiff to show that the state forum
is not adequate to adjudicate their federal defenses. 31 Foster
Child., 329 F.3d at 1279. Further, when the plaintiff “has not at-
tempted to present [their] federal claims in related state-court pro-
ceedings, a federal court should assume” that the state proceedings
2 The third Hughes exception tracks the third Middlesex factor: whether the
state forum is adequate to hear the plaintiff’s federal claim. Our caselaw has
been ambiguous on whether to treat this consideration as an exception to
Younger, or as a precondition to it. Compare Hughes, 377 F.3d at 1263 n.6,
with Butler v. Ala. Jud. Inquiry Comm’n, 245 F.3d 1257, 1262 (11th Cir. 2001)
(noting “Middlesex sets out three benchmarks” and “the parties do not dis-
pute[] that the first two elements are satisfied here” (emphasis added)). What-
ever tension there is in our caselaw, it is only a tension over labeling, as we
apply the same legal standards in both lines of cases. In this case, the parties
and the district court discussed this factor in the context of Middlesex, and as
a precondition to Younger, so we do the same.
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are adequate, except upon “unambiguous authority to the con-
trary.” Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 15 (1987).
Adequacy in this context is not about the quality of the state
proceedings, but rather about “whether th[e] challenge can be
raised in the pending state proceedings” at all. Moore v. Sims, 442
U.S. 415, 425 (1979) (emphasis added). In Moore, the State of Texas
had instituted lawsuits to terminate the parental rights of the plain-
tiffs, but the plaintiffs sued in federal court to halt the state proceed-
ings, arguing the Texas laws were unconstitutional. Id. at 419–22.
The district court refused to abstain, concluding that the plaintiffs’
constitutional challenge was “multifaceted” and that there was no
singular, convenient state forum for them to assert their constitu-
tional challenge. Id. at 424. The Supreme Court reversed, conclud-
ing that even though the litigation was complicated, nothing pro-
cedurally stopped the plaintiffs from asserting their constitutional
challenge. Id. at 425–26. The Court noted Texas’s permissive rules
of joinder in parental rights proceedings and that Texas courts were
empowered by statute to hear all claims properly joined. Id. at 425
& n.9.
Simply put, generalized arguments about the inadequacy,
inconvenience, or complexity of proceedings before a state tribunal
will not do. See id. at 425–27. “Instead, what matters is whether
the plaintiff is procedurally prevented from raising his constitu-
tional claims in the state courts, from which a certiorari petition
can be filed seeking review on the merits in the United States Su-
preme Court.” Pompey v. Broward Cnty., 95 F.3d 1543, 1551 (11th
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Cir. 1996) (citing Moore, 442 U.S. at 432). To demonstrate that
claims are procedurally prevented in state tribunals, plaintiffs
should provide evidence of state laws, rules, or procedures that
would allow a district court to evaluate whether the plaintiff’s fed-
eral claims will effectively be shut out from the judicial system and
cut off from effective review in the courts.
Further, in the administrative law context, the Supreme
Court has held that “it is sufficient under Middlesex that constitu-
tional claims may be raised in state-court judicial review of the ad-
ministrative proceeding.” Ohio Civ. Rts. Comm’n v. Dayton
Christian Schs., Inc., 477 U.S. 619, 629 (1986) (internal citation
omitted).
Here, Leonard’s claims of federal preemption and immunity
can be raised both before the Board itself and in Alabama state
court. Board of Pharmacy proceedings are governed both accord-
ing to the requirements of the Board’s organic act, Ala. Code. § 34-
23-1 et seq., and provisions of the Alabama Administrative Proce-
dure Act (AAPA) made applicable to Board proceedings. Ala.
Code. §§ 34-23-92(12), 34-23-94. When the Board seeks to revoke
a pharmacist’s license, it must serve upon the respondent a state-
ment of charges and notice of hearing. Ala. Code §§ 34-23-34, 41-
22-12. After that, the AAPA contemplates that other pleadings and
motions may be filed in advance of the hearing. See, e.g., Ala. Code
§ 41-22-12(c) (“[O]n motion of a party, the presiding officer . . . may
issue . . . discovery orders related to relevant matters . . . in accord-
ance with the rules of civil procedure.”); id. § 41-22-12(g) (“The
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record in a contested case shall include: (1) All pleadings, motions,
and intermediate rulings . . . .”). In fact, the record reveals that
Leonard availed herself of these procedures. She filed answers to
the Board’s original and amended Statements of Charges, and the
parties have requested and received continuances of the Board’s
hearing while this case is pending in federal court. In her answers
to the Statements of Charges, Leonard has asserted and raised not
only her federal preemption and immunity defenses, but also other
defenses grounded in the United States Constitution or federal stat-
utes. The fact that Leonard has been able to assert her federal de-
fenses in the Board’s proceedings all but dooms Leonard’s ade-
quacy argument. Middlesex, 457 U.S. at 437 & n.16 (noting that
“[i]t would trivialize the principles of comity and federalism” to ig-
nore that the state courts had in fact entertained the plaintiff’s fed-
eral claims). But in addition, our review of Alabama’s administra-
tive code and the Board’s organic act confirms that, just like in
Moore, there is nothing procedurally stopping Leonard from hav-
ing her federal defenses considered in the Board’s proceedings.
Moreover, if Leonard does not prevail on her federal de-
fenses before the Board, or even if the Board sidesteps ruling on
Leonard’s federal claims altogether, she can still seek judicial re-
view in the Alabama state courts. See Ala. Code § 41-22-20(a)–(b)
(providing any “person who has exhausted all administrative rem-
edies available” and is still “aggrieved by a final decision in a con-
tested case” may seek review in an Alabama circuit court); id. § 41-
22-21 (providing for appeals from circuit courts’ review of
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administrative proceedings to appropriate Alabama courts of ap-
peals). These reviewing courts would review any legal conclusions
embedded in the Board’s decision de novo. See Ex parte Wilbanks
Health Care Servs., Inc., 986 So. 2d 422, 425 (Ala. 2007) (“Review
of the hearing officer’s conclusions of law . . . is de novo.”); see also
Ala. Code § 41-22-20(k)(1) (“The court may reverse or modify . . .
the agency action . . . if substantial rights of the petitioner have
been prejudiced because the agency action is . . . (1) [i]n violation
of constitutional or statutory provisions.”). If Leonard is not satis-
fied with the review provided by the Alabama courts, she can ulti-
mately petition for review of her federal challenges in the United
States Supreme Court. See 28 U.S.C. § 1257. Therefore, not only
has Leonard been able to present her federal defenses in the admin-
istrative proceeding, but Alabama law also provides that her con-
stitutional claims may be raised in Alabama’s courts consistent with
Ohio Civil Rights Commission. See 477 U.S. at 629. Leonard has
simply not carried her heavy burden under our precedents to show
that the state forum is inadequate. See 31 Foster Child., 329 F.3d
at 1279.
Leonard also argues that, even if she could get an adjudica-
tion at some point, that it would be too late to adequately vindicate
her rights. The PREP Act provides immunity for providers of cov-
ered countermeasures “from suit and liability” related to the ad-
ministration of those countermeasures. 42 U.S.C. § 247d-6d(a)(1).
Leonard claims her immunity “from suit” will be violated if she is
forced to participate in the hearing or to seek state appellate review
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on the back end of those proceedings. She analogizes this situation
to the world of qualified immunity jurisprudence, which generally
allows state governmental officials to immediately take an interloc-
utory appeal of a denial of qualified immunity. See Mitchell v. For-
syth, 472 U.S. 511, 526 (1985) (“[A]n immunity from suit . . . is ef-
fectively lost if a case is erroneously permitted to go to trial.”). But
this argument fails because the AAPA does provide for interlocu-
tory review of preliminary administrative rulings: “A preliminary,
procedural, or intermediate agency action or ruling is immediately
reviewable if review of the final agency decision would not provide
an adequate remedy.” Ala. Code § 41-22-20(a). The AAPA and the
Board’s hearing procedures thus provide exactly what Leonard
seeks: she may move the hearing officer to dismiss the Statement
of Charges, and if denied, she may seek judicial review of that de-
nial in Alabama state court. Because Leonard has not attempted to
avail herself of this procedural avenue, she bears the even heavier
burden of providing “unambiguous authority” that this procedure
is inadequate. Pennzoil, 481 U.S. at 15. She has not done so in this
case, and so we hold that Alabama’s administrative and judicial sys-
tem is adequate under Middlesex to adjudicate her claims of PREP
Act immunity and preemption.
V. Younger Exceptions
Because all three Middlesex factors are satisfied, Younger ab-
stention is warranted unless Leonard can show that one of the ex-
ceptions applies. Younger’s progeny have crystalized these excep-
tions into two broad categories: proceedings instituted in “bad
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faith” and proceedings founded on “flagrantly and patently” uncon-
stitutional laws. We address each in turn.
A. Bad-Faith Exception
In Kugler v. Helfant, 421 U.S. 117 (1975), the Supreme Court
held that bad faith “in this context generally means that a prosecu-
tion has been brought without a reasonable expectation of obtain-
ing a valid conviction.” Id. at 126 n.6. We applied this standard in
Redner v. Citrus County, 919 F.2d 646 (11th Cir. 1990). There, the
plaintiff argued that he was being targeted in bad faith by the
county because it passed an ordinance outlawing adult stores the
day before he opened his own adult store business. Id. at 650 n.8.
We held this was insufficient to show bad faith because whether or
not the ordinance had a targeted scope did not bear on the question
of whether the prosecution had a “reasonable expectation” of suc-
cess. See id. at 650 & n.8 (quoting Kugler, 421 U.S. at 126 n.6).
Leonard argues that a pair of old Fifth Circuit cases show
that the bad-faith exception applies even when there is a “reasona-
ble expectation” of success if the charges were instituted for the
purpose of harassment. See Wilson v. Thompson, 593 F.2d 1375,
1387 (5th Cir. 1979); Fitzgerald v. Peek, 636 F.2d 943, 945 (5th Cir.
Jan. 1981) (per curiam). 3 Our predecessor court did once remark,
“[n]or is it necessary for [a] plaintiff to prove that the prosecution
3 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc),
we adopted as binding precedent all decisions of the former Fifth Circuit
handed down prior to October 1, 1981.
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could not possibly result in a valid conviction.” Fitzgerald, 636 F.2d
at 945. But it made this statement in the context of retaliation
against core constitutionally protected rights. See id. (requiring the
plaintiff to show “that the conduct allegedly retaliated against . . .
is constitutionally protected and that the state’s [charges are] moti-
vated at least in part by a purpose to retaliate against or deter that
conduct”); Wilson, 593 F.2d at 1383 (concluding abstention is not
warranted if the state charges were “brought in bad faith for the
purpose of retaliating for or deterring the exercise of constitution-
ally protected rights”).
In Fitzgerald, the plaintiffs made critical comments about lo-
cal public officials, and local judges exerted pressure on the district
attorney to bring charges in retaliation for these comments. 636
F.2d at 944–45. In Wilson, criminal charges against the plaintiffs
were revived after the local authorities learned the plaintiffs had
filed a civil suit against two local sheriff’s deputies. 593 F.2d at
1377–79. In both cases, the plaintiffs showed that the charges were
brought in retaliation against the exercise of their protected First
Amendment Rights. What is more, requiring that harassment be
targeted at a constitutional right is consistent with the practice of
our sister circuits. See, e.g., Phelps v. Hamilton, 59 F.3d 1058,
1064–65, 1064 n.12 (10th Cir. 1995) (collecting cases and distin-
guishing between those bad-faith prosecutions that lack “probable
cause” and ones brought to “chill[]” the exercise of constitutional
rights); Lewellen v. Raff, 843 F.2d 1103, 1109–10 (8th Cir. 1988)
(similar); Cullen v. Fliegner, 18 F.3d 96, 103–04 (2d Cir. 1994)
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(affirming non-abstention based on district court’s finding that
state’s proceedings “‘imposed a chilling effect’ on Appellee’s First
Amendment rights”).
Here, Leonard’s failure to identify constitutionally protected
conduct that is being retaliated against forecloses her harassment
argument. Our precedents distinguish between cases where
charges are brought to target protected conduct and those where
“the only constitutional issue at stake is the validity of the chal-
lenged state [charges].” Wilson, 593 F.2d at 1382–83 (quotation
marks omitted) (citation omitted). Leonard’s case falls neatly into
the latter category.
* * *
Because Leonard cannot show harassment in response to
the exercise of her constitutional rights, she must instead show that
the charges were “brought without a reasonable expectation of ob-
taining a valid conviction” in order to invoke the bad-faith excep-
tion. Redner, 919 F.2d at 650 (quoting Kugler, 421 U.S. at 126 n.6).
However, none of the facts to which Leonard points make this
showing. As an initial matter, Leonard has not provided any sub-
stantial allegation that the Board itself, or its individual members,
are acting in bad faith. Leonard instead focuses on the alleged bad
faith of the Board’s investigators: Malloy, Delk, and Wells. The
Board argues that any bad faith attributable to its investigators
should not be automatically imputed to the Board without some
evidence that the Board adopted that bad faith. We need not de-
cide whose intent matters, though, because even focusing solely on
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18 Opinion of the Court 22-11124
the investigators’ intent, Leonard has still not carried her burden
under Redner. 4
Turning to the investigators’ alleged bad faith, Leonard
points to three sets of facts in an attempt to carry her burden. First,
she alleges that investigator Malloy’s territory did not include The
Drug Store. Even if true, we cannot see how this bears on the ques-
tion of whether the charges were instituted without a reasonable
expectation of success.
Second, she points to the anti-competitive motives of Chuck
Beams (a competing pharmacist) and his interactions with Malloy.
However, the motives of Beams in isolation are irrelevant to the
bad-faith analysis, as he had no involvement in the charging pro-
cess. His allegedly bad-faith motives are only relevant to the extent
that they were adopted by the Board’s investigators. Leonard
points to the emails exchanged between Malloy and Beams, but
fails to provide more than a conclusory explanation how these
emails would show bad faith. After reviewing the record in con-
text, these emails on their face evince just benign professional
4 To be clear, there is good reason to doubt that Leonard could in fact show
that the Board’s decisionmaking was infected with any of the alleged bad faith
of its investigators. The record evidence demonstrates that the Board’s mem-
bers are insulated from their staff until the hearing date so that they can be
impartial adjudicators of the charges. In addition, the record shows that the
investigators’ findings are further filtered through the Board’s staff counsel and
Executive Secretary, who act as another impartial layer between the investi-
gators and the Board members.
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courtesy. Malloy requested that Beams make a statement in writ-
ing about his complaint, and after he did, Malloy thanked him for
sending it. Later, Malloy responded to Beams’s request for an up-
date on his complaint, and Malloy let him know the investigation
would probably be ending soon. Even if these emails were con-
strued in a more sinister fashion, they still do not show whether the
Board had a reasonable expectation of success in bringing its
charges.
Finally, Leonard alleges that the mere involvement of inves-
tigator Wells shows bad faith. Again, Leonard has not suggested
what inference we should draw from the simple fact of his involve-
ment. Her argument appears to be that, because Leonard accused
Wells of drawing a gun on her in 2005, he was biased in his present-
day interactions with Leonard and her staff. But this too has no
bearing on the showing required under Redner. Whether Wells
had a personal animosity towards Leonard says next to nothing
about whether the Board’s charges were instituted without a rea-
sonable expectation of success.
Leonard has alleged facts that, when drawn in her favor,
might suggest that the investigators were personally hostile to her
and her business. But, like in Redner, being the target of the
Board’s investigators is not itself evidence of bad faith, and Leonard
has not shown any evidence that because of this hostility the
Board’s charges were baseless. Because Leonard has not carried
her burden under either the “reasonable expectation” standard or
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20 Opinion of the Court 22-11124
the harassment standard, the bad-faith exception to Younger does
not apply.
B. Flagrantly Unconstitutional Laws Exception
A prosecution founded on “flagrantly and patently” uncon-
stitutional laws would also constitute the sort of “extraordinary cir-
cumstance” justifying federal intervention in state proceedings.
Younger, 401 U.S. at 53. The Supreme Court suggested in NOPSI
that this exception might be satisfied if there was a “facially conclu-
sive” claim of preemption. See NOPSI, 491 U.S. at 367.
We previously considered the scope of the “facially conclu-
sive” form of this exception in Hughes v. Attorney General of Flor-
ida, 377 F.3d 1258 (11th Cir. 2004). There, we noted the narrow-
ness of the exception and held that “only the clearest of federal
preemption claims” would justify a federal court interfering in a
case pending before an otherwise adequate state tribunal. Id. at
1265 & n.10; see also Younger, 401 U.S. at 53–54 (suggesting the
exception applies in the narrow instance where state laws are un-
constitutional “in every clause, sentence and paragraph, and in
whatever manner and against whomever” they are applied (quot-
ing Watson v. Buck, 313 U.S. 387, 402 (1941))). In Hughes, the
plaintiffs were being prosecuted under Florida law for operating an
aircraft while intoxicated. 377 F.3d at 1260–61. We reversed the
grant of a writ of habeas corpus halting the prosecutions, because
it was not “absolutely clear” that the state laws were preempted by
the federal aviation laws. Id. at 1261, 1271–72; see also id. at 1273–
74 (reasoning that unresolved tensions between competing parts of
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22-11124 Opinion of the Court 21
the regulatory scheme meant that preemption was not facially con-
clusive).
While the parties extensively briefed the issue, we need not
decide the total scope of PREP Act preemption today. Because the
Middlesex factors are satisfied, and Younger abstention is war-
ranted in this case, our only question is whether this case is one of
the “clearest” cases of preemption, justifying non-abstention in
spite of the Middlesex factors. Hughes, 377 F.3d at 1265. After ap-
plying the principles of preemption, we conclude Leonard’s claim
is not “facially conclusive.”
1. Principles of Preemption
Federal preemption of state law flows from the Supremacy
Clause of the United States Constitution. U.S. Const. art. VI, cl. 2.
Under our system of federalism, there is a presumption against con-
struing statutes to preempt the “historic police powers” of the
states to regulate for the health and safety of their citizens, unless
it is the “manifest purpose of Congress” to do so. See Cipollone v.
Liggett Grp., Inc., 505 U.S. 504, 516 (1992) (quoting Rice v. Santa
Fe Elevator Corp., 331 U.S. 218, 230 (1947)). So, when we evaluate
the scope of federal preemption, “the purpose of Congress is the
ultimate touchstone.” Id. (alteration adopted) (quoting Malone v.
White Motor Corp., 435 U.S. 497, 504 (1978)). Congress’s purpose
may be stated explicitly, or it may be implicit in the structure and
substance of the statute. Id. When it is explicit in the text of the
statute, our “task is one of statutory interpretation.” See id. at 532(Blackmun, J., concurring in part); see also id. at 517 (majority
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22 Opinion of the Court 22-11124
opinion) (applying the traditional statutory canon of expressio
unius to interpret the express preemption provision). In situations
where Congress has not spoken explicitly, preemption may still oc-
cur through Congress’s enactment of laws that actually conflict
with state laws “or where the scheme of federal regulation is suffi-
ciently comprehensive” to suggest that Congress intended to oc-
cupy the field of regulation to the exclusion of the States. Lawson-
Ross v. Great Lakes Higher Educ. Corp., 955 F.3d 908, 916 (11th
Cir. 2020) (internal quotation marks omitted).
2. PREP Act Preemption
Here, the PREP Act contains an express preemption clause,
it reads:
(8) Preemption of State law
During the effective period of a declaration under
subsection (b), or at any time with respect to conduct
undertaken in accordance with such declaration, no
State or political subdivision of a State may establish,
enforce, or continue in effect with respect to a cov-
ered countermeasure any provision of law or legal re-
quirement that—
(A) is different from, or is in conflict with, any
requirement applicable under this section; and
(B) relates to the [creation, use, administration,
etc. of covered countermeasures]
42 U.S.C. § 247d-6d(b)(8).
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22-11124 Opinion of the Court 23
Here, the Declaration and its guidance documents provide
that Covid-19 antibody tests are covered countermeasures and that
pharmacists are covered persons. Declaration, supra, 85 Fed. Reg.
at 15,202; Pharmacist Guidance, supra. Thus, the relevant preemp-
tion question here is whether the Board’s charges are “different
from” or “in conflict with” the PREP Act and the Declaration.
Because the PREP Act has an express preemption provision,
we begin with the text. See Medtronic, Inc. v. Lohr, 518 U.S. 470,
484–85 (1996). The PREP Act only preempts state laws that conflict
with “requirements” of the PREP Act or the Declaration. Leonard
argues that the PREP Act’s immunity from “suit and liability . . .
for a claim for loss” is a requirement under the Act, and the Board’s
charges seeking to impose liability are in conflict with it. But the
Board notes that its charges are not “claims for loss.” In fact, as the
Board notes, there is no loss—these are administrative enforce-
ment charges only. While Leonard argues that the “loss” in this
case is the loss of her license if the Board is successful, this reading
stretches the text too far. The more natural reading of the statute
is that covered persons are immunized from suits by plaintiffs try-
ing to recover for the plaintiffs’ losses caused by covered persons,
not suits by those seeking to impose a loss on the covered person.
However, because Congress’s purpose is the “touchstone”
of our analysis, we must place this text in the context of the whole
statute. Leonard argues that even if the Board’s charges are admin-
istrative, the statutory authority under which the charges are
brought speaks in the language of tort law. See, e.g., Ala. Code
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24 Opinion of the Court 22-11124
§ 34-23-33(a)(6) (providing that the Board may revoke a pharma-
cist’s license for “gross malpractice” and “gross negligence”). She
correctly notes that the few cases to have addressed PREP Act
preemption have generally concluded that state tort law is
preempted with respect to the administration of covered counter-
measures. See, e.g., Parker v. St. Lawrence Cnty. Pub. Health
Dep’t, 954 N.Y.S. 2d 259 (N.Y. App. Div. 2012). Further, the text of
the PREP Act provides guidance on Congress’s purpose: PREP Act
declarations are issued to “encourag[e]” the administration of cov-
ered countermeasures. 42 U.S.C. § 247d-6d(b)(6) (describing the
factors to be considered). With this in mind, we understand Leon-
ard’s argument that it would seem odd for Congress to immunize
covered persons from private suits for damages, while still subject-
ing them to government administrative actions seeking to revoke
their licenses for the same conduct.
With the text of the statute pulling in one direction and Con-
gress’s purpose arguably pulling in the other, “it is not absolutely
clear to us, i.e., facially conclusive” that we should resolve this ten-
sion in favor of finding preemption. See Hughes, 377 F.3d at 1271.
Leonard’s claim is not one of “the clearest of federal preemption
claims” that would justify federal intervention in spite of the Mid-
dlesex factors being satisfied. See id. at 1265. Nor can we see from
the face of the Board’s charges that they are “flagrantly and patently
violative of express constitutional prohibitions in every clause, sen-
tence and paragraph, and in whatever manner” as applied against
Leonard. Younger, 401 U.S. at 53–54 (quoting Watson, 313 U.S. at
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22-11124 Opinion of the Court 25
402). Therefore, we conclude that this exception is also not appli-
cable to Leonard’s case.
VI. Conclusion
Our holding today is a limited one. We conclude that Leon-
ard has not established that she lacks an adequate opportunity to
present her federal claims to the Alabama Board of Pharmacy or an
adequate opportunity to obtain judicial review of her claims in Al-
abama’s courts, and so Younger abstention is warranted. We do
not decide today whether Leonard is immune from the Board’s
charges or if they are in fact preempted by the PREP Act. All we
conclude is that this is not one of the “extraordinary circumstances”
that would justify federal intervention in a state proceeding that is
adequate to hear Leonard’s claims. Accordingly, the district court
did not abuse its discretion and is due to be affirmed.
AFFIRMED.