author: RHESA HAWKINS BARKSDALE, Circuit Judge:

text:
    AIR EVAC EMS, INCORPORATED, Plaintiff-Appellant v. State of TEXAS, DEPARTMENT OF INSURANCE, DIVISION OF WORKERS’ COMPENSATION; David Mattax, Texas Commissioner of Insurance, in his official capacity; Ryan Brannan, Texas Commissioner of Workers’ Compensation, in his official capacity, Defendants-Appellees v. Texas Mutual Insurance Company; Liberty Mutual Insurance Company; Zenith Insurance Company; Hartford Underwriters Insurance Company; Twin City Fire Insurance Company; Transportation Insurance Company; Valley Forge Insurance Company; Truck Insurance Exchange, Intervenor Defendants-Appellees
    No. 16-51023
    United States Court of Appeals, Fifth Circuit.
    FILED March 20, 2017

      Joshua Lee Fuchs, Houston, TX, Thomas F. Allen, Jr., Dallas, TX, Jones Day, for Plaintiff-Appellant.
    Lisa Bennett, Assistant Solicitor General, Jennifer Settle Jackson, Assistant Attorney General, Office of the Attorney General for the State of Texas, Austin, TX, for Defendants-Appellees.
    Matthew Birk Baumgartner, Boyce C. Cabaniss, Esq., Karen Shafrir Vladeck, Graves, Dougherty, Hearon & Moody, P.C., Paul W. Schlaud, Reeves & Bright-well, L.L.P., Austin, TX, for Intervenor Defendant-Appellee Texas Mutual Insurance Company.
    Robert F. Josey, David Lawrence Plaut, Esq., Hanna & Plaut, L.L.P., Austin, TX, for Intervenor Defendant-Appellee Liberty Mutual Insurance Company.
    James Michael Loughlin, Stone Lough-lin & Swanson, L.L.P., Austin, TX, for Intervenor Defendants-Appellees Zenith Insurance Company, Hartford Underwriters Insurance Company, Twin City Fire Insurance Company, Transportation Insurance Company, Valley Forge Insurance Company, Truck Insurance Exchange.
    George W. Hicks, Jr., Kirkland & Ellis, L.L.P.; George W. Hicks, Jr., Bancroft, P.L.L.C., Washington, DC, for Amicus Curiae Air Methods Corporation.
    Before JONES, BARKSDALE, and COSTA, Circuit Judges.
   RHESA HAWKINS BARKSDALE, Circuit Judge:

Primarily at . issue is whether an air-ambulance company, claiming federal preemption of Texas’ workers’-compensation scheme, satisfies the equitable exception to the Eleventh Amendment, as provided in Ex parte Young, 209 U.S. 123, 155-56, 28 S.Ct. 441, 52 L.Ed. 714 (1908). It does. For this and other reasons, federal jurisdiction exists. Moreover, we decline to abstain under Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). VACATED and REMANDED.

I.

Air Evac EMS, Incorporated, filed this action against, inter alia, the Texas Commissioner of Insurance and the Texas Commissioner of Workers’ Compensation (state defendants), claiming that, as applied to air-ambulance entities, Texas’ workers’-compensation system is federally preempted. Because the Airline Deregulation Act (ADA) expressly preempts all state laws “related to a price, route, or service of an air carrier”, Air Evac maintains Texas may not use state laws to regulate air-ambulance services. 49 U.S.C. § 41713(b)(1).

Air Evac’s air ambulances depart from more than 20 sites in Texas. And, Air Evac holds an assortment of licenses from federal and state regulators, including the United States Department of Transportation, Federal Aviation Administration, and Texas. Being an emergency-transportation service, Air Evac must accept patients regardless of either their ability to pay or the source of their payment. As a result, Air Evac often seeks payment for its services through the Texas Workers’ Compensation Act (TWCA).

TWCA established a state-regulated insurance market, in which Texas licenses private insurers to sell workers’-compensation policies to employers. See Tex. Labor Code §§ 401.001-419.007. Two critical features of this framework are relevant to the action at hand: a maximum-reimbursement system; and, a prohibition on “balance billing”. Id. §§ 413.011 (reimbursement guidelines), 413.042 (“A health care provider may not pursue a private claim against a workers’ compensation claimant”).

As for the reimbursement program, TWCA authorizes health-care providers to seek payment directly from workers’-compensation insurers for services provided patients covered by TWCA. Id. § 408.027(a). The insurer then reimburses the health-care provider according to rate guidelines promulgated by the Texas Workers’ Compensation Commission (commission). See id. These rates are generally based on corresponding Medicare rates. An insurer is not allowed to pay more than the maximum-reimbursement rate, regardless of whether the rate satisfies the health-care provider’s billed amount. Id. § 413.011(d).

Therefore, under this system, the initial bill goes to the insurer rather than the patient. Furthermore, the balance-billing prohibition prevents a health-care provider from billing the patient for any portion of the bill in excess of the commission’s rate. Id. § 413.042. If a health-care provider violates this prohibition, TWCA authorizes fines up to “$25,000 per day per occurrence”. Id. § 415.021(a).

If a health-care provider believes it was underpaid, or the commission has not yet set a specific rate, it may dispute the fee with the Texas Department of Insurance, Division of Workers’ Compensation (DWC). See id. § 413.031(a), (c). (Air Evac does not appeal the dismissal of DWC from this action.)

DWC serves as a first-level administrative adjudicator, with the healthcare provider and insurer participating as interested parties. See id. DWC’s decisions are appealable to the State Office of Administrative Hearings (SOAH); SOAH’s decisions, to the Travis County, Texas, district court. See id. § 413.031(k-1); Tex. Gov. Code Ann. § 2001.176. And, an appeal may be taken from a decision by that court. Tex. Gov. Code Ann. § 2001.901.

If the commission has not promulgated a reimbursement rate for a given service, DWC must determine a “fair and reasonable” rate through administrative proceedings. See 28 Tex. Admin. Code § 134.1(e)-(f). In 2002, DWC adopted a rule setting a general reimbursement rate of 125% of the Medicare rate. See id. § 134.203(d).

After adhering to this rule for ten years, numerous air-ambulance companies — including Air Evac — challenged the 125% rate in the state-administrative-dispute system, urging ADA preemption. Initially, DWC stated it believed Texas’ reimbursement guidelines were preempted. In September 2015, however, following an extensive series of administrative hearings, an administrative law judge (ALJ) ruled TWCA’s scheme was not preempted, and found the proper reimbursement rate to be 149% of the Medicare rate.

The lead entity in the administrative proceeding, PHI Air Medical, LLC, appealed the ALJ’s ruling to the Travis County district court. See Tex. Mut. Ins. Co., et al. v. PHI Air Medical, LLC, No. D-1-GN-15-004940 (Tex. 53d Jud. Dist. 15 Dec. 2016). In mid-December 2016, that court ruled: TWCA is not preempted; and, a reimbursement rate of 125% of the Medicare rate is adequate under TWCA. Id. On 31 January 2017, PHI appealed to the court of appeals. In the meantime, hundreds of air-ambulance fee disputes have been held at the SOAH level, pending the outcome of PHI’s judicial proceeding.

Approximately a year earlier, in January 2016, with the state proceeding ongoing, Air Evac filed this action, seeking: a declaratory judgment that ADA preempts TWCA with respect to air-ambulance companies; injunctive relief against enforcement of the maximum-reimbursement-rate system; or, in the alternative, declaratory and injunctive relief against the balance-billing prohibition. The district court granted a joint motion to intervene on behalf of numerous workers’-compensation insurers (insurers). Prior to the discovery conference, Air Evac moved for summary judgment and each defendant moved to dismiss.

The court granted defendants’ Federal Rule of Civil Procedure 12(b)(1) motions to dismiss. Air Evac EMS, Inc. v. Texas, No. 1:16-CV-00060-SS, 2016 WL 4259552, at *9 (W.D. Tex. 11 Aug. 2016). In doing so, it first ruled subject-matter jurisdiction existed, based on Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96 n.14, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983) (ruling preemption claims present a federal question because they rely on interpretation of federal statutes and the Supremacy Clause). Air Evac EMS, 2016 WL 4259552, at *5. The court continued to explain that, although Shaw confers federal-question jurisdiction under 28 U.S.C. 1331, the Supremacy Clause, ADA, and Declaratory Judgment Act do not provide a “private right of action”. Id. at *5-6.

Therefore, in the light of the Eleventh Amendment, the court concluded: in order for this action to proceed, Air Evac must rely on a federal court’s equitable jurisdiction to enjoin state officials under Ex parte Young. Id. at *6. Looking to Ex parte Young’s, basic requirements, the court first acknowledged Air Evac: seeks prospective injunctive relief; and claims an ongoing violation of federal law. Id. at *6-7.

The court next considered Okpalobi v. Foster, 244 F.3d 405 (5th Cir. 2001) (en banc), in which the lead, plurality opinion would have required defendants in an Ex parte Young action to, inter alia, “be specially charged with the duty to enforce the statute”, as well as to “be threatening to exercise that duty”. Air Evac EMS, 2016 WL 4259552, at *7 (quoting Okpalobi, 244 F.3d at 414-15). Relying on the duty-to-enforce requirement, the court noted TWCA’s maximum-reimbursement scheme cannot be enforced against Air Evac because it constrains the amount insurers can pay, rather than the amount air-ambulance companies can charge. Id. at *8. Without direct enforcement against the health-care providers, the court concluded, the maximum-reimbursement system does not qualify as the basis for the Ex parte Young exception. Id.

Turning to Air Evac’s alternative challenge to the balance-billing prohibition, the court recognized state defendants are charged with enforcing the provision against entities which violate the rule. Id. The court, however, held: “Air Evac’s claims fail under Young, as Air Evac has failed to show an enforcement proceeding concerning the balance-billing prohibition is imminent, threatened, or even intended”. Id. In doing so, the court specifically-rejected Air Evac’s assertion that it need not “expose itself’ to liability by violating the balance-billing, prohibition in order to test the law’s constitutionality under the Supremacy Clause. Id.

In sum, the court held: despite claiming an ongoing violation of federal law and seeking only prospective relief, Air Evac could not avail itself of the Ex parte Young exception because the maximum-reimbursement system is not directly enforced against Air Evac, and state defendants have not threatened to enforce the balance-billing prohibition. Id. at *9.

II.

For this appeal, our court granted expedited briefing and oral argument. The parties raise four distinct threshold issues: whether Air Evac has Article III standing; whether federal-question jurisdiction exists for this action under 28 U.S.C. § 1331; whether Ex parte Young’s exception applies; and whether, in the light of the above-referenced ongoing state proceedings, we should abstain from exercising otherwise-proper jurisdiction.

A motion to dismiss’ being granted is reviewed de novo, applying the same standard as the district court. E.g., Bennett-Nelson v. La. Bd. of Regents, 431 F.3d 448, 450 n.2 (5th Cir. 2005). And, of course, a federal court must always determine its own jurisdiction; if it decides it is lacking, it may proceed no further. E.g., Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). Consistent with our above-described standard of review, “whether state defendants are entitled to sovereign immunity is likewise reviewed de novo”. Moore v. La. Bd. of Elementary & Secondary Educ., 743 F.3d 959, 962 (5th Cir. 2014) (internal citation omitted).

A.

State defendants’ challenge to Air Evac’s standing is adopted by insurers. Federal standing has three well-known requirements: (1) injury-in-fact; (2) “fairly traceable” causation; and (3) redressability. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). In concluding Air Evac has standing, the court stated:

Air Evac has suffered economic injury given its alleged inability to recover the total amount of its billed charges under the TWCA reimbursement scheme; the causal connection between the scheme and Air Evac’s injury is clear; and if the challenged provisions are indeed preempted, the State Defendants will no longer be able to enforce them. Air Evac has standing to sue.

Air Evac EMS, 2016 WL 4259552, at *4 n.2.

State defendants assert the district court’s analysis is too simplistic, that Air Evac cannot establish causation or re-dressability. They maintain that, to the extent not being able to recover full-billed charges is an injury, there is no traceability or redressability because TWCA’s reimbursement cap is not directly “enforced” against Air Evac, but against insurers. (As discussed infra, there is significant overlap between standing and Ex parte Young’s applicability.)

Under the above-described three-part test, an injury-in-fact — the first requirement — must be “concrete and particularized” and “actual or imminent”. Lujan, 504 U.S. at 560, 112 S.Ct. 2130. Working in tandem, TWCA’s provisions effectively set a reimbursement rate and prohibit air-ambulance entities from collecting any more than that rate from other sources (i.e., the patient).

Along that line, Ex parte Young was a rate-setting case in which a railroad was not allowed to charge more than the state-mandated rate. 209 U.S. at 127-28, 28 S.Ct. 441. There, the complaint claimed those rates were confiscatory, in violation of the Fourteenth Amendment’s mandate that no State shall “deprive any person of life, liberty, or property, without due process of law”. U.S. Const. amend. XIV, § 1; see Ex parte Young, 209 U.S. at 149-50, 28 S.Ct. 441. Although Air Evac does not contend that collecting 125% of the Medicare rate is confiscatory, capping rates based on a federally-preempted state law (by virtue of the Supremacy Clause) would limit a party’s financial recovery. Thus, prohibiting collection in excess of the maximum-reimbursement rate is a pecuniary injury sufficient to establish injury-in-fact. See, e.g., K.P. v. LeBlanc, 627 F.3d 115, 122 (5th Cir. 2010).

For the second standing requirement, there must be a “fairly traceable” causal connection “between the injury and the conduct complained of’. Lujan, 504 U.S. at 560, 112 S.Ct. 2130. Three of state defendants’ duties are “fairly traceable” to Air Evac’s injury: (1) rate-setting; (2) fee-dispute resolution; and (3) the balance-billing prohibition. For the reasons that follow, collectively, these three instances of commission and DWC conduct are “fairly traceable” to Air Evac’s injury.

First, the commission and DWC set the reimbursement rates insurers are allowed to pay. Although defendants contend this rate-setting is too attenuated to be the cause of Air Evac’s injury, “[tjracing .an injury is not the same as seeking its proximate cause”. K.P., 627 F.3d at 123. By setting the reimbursement rates, state defendants initiate the first step in the workers’-compensation-payment process.

Second, state defendants oversee the administrative fee-dispute process. In KP., described infra, a state regulatory board served as the “initial arbiter[]” within a state-funded compensation system. Id. Our court ruled that role “place[d] the Defendants among those who would contribute to Plaintiffs’ harm”. Id., Likewise, state defendants’ oversight of DWC — the “initial arbiter! ]” of fee-reimbursement disputes — places state defendants among those who cause Air Evac’s injury. Id.

Third, state defendants are charged with enforcing the balance-billing prohibition. Their ability to fíne TWCA violators up to $25,000 per violation, per day, prevents Air Evac from seeking additional payment outside of the maximum-reimbursement scheme.

The final of the three standing requirements is that the court be able to structure relief to redress plaintiffs injury. Plaintiff must show a “favorable decision will relieve a discrete injury to himself’, but not necessarily “that a favorable decision will relieve his every injury”. Larson v. Valente, 456 U.S. 228, 243 n.15, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982) (emphasis in original).

In Okpalobi, defendant state officials (governor and attorney general) were found not to have “any duty or ability to do anything” relating to the statute. 244 F.3d at 427 (emphasis in original). On the other hand, in K.P., defendant board members had “definite responsibilities relating to the application of [the statute]”. 627 F.3d at 124.

Here, state defendants are more akin to the board members in K.P. than the statewide officials in Okpalobi. As explained above, state defendants wield influence at multiple points in the workers’-compensation reimbursement process. An injunction against their rate setting, fee-dispute resolution, or enforcement of the balance-billing prohibition would remove a “discrete injury” caused by state defendants’ enforcement of TWCA. See Larson, 456 U.S. at 243 n.15, 102 S.Ct. 1673.

In sum, state defendants’ duties concerning the workers’-compensation reimbursement system and balance-billing prohibition cause Air Evac a pecuniary injury that can be redressed with injunctive and declaratory relief. In short, Air Evac has Article III standing.

B.

Next, state defendants (but not insurers) contend federal-question jurisdiction for this action is lacking, based on Armstrong v. Exceptional Child Center, Inc., — U.S. -, 135 S.Ct. 1378, 1384, 191 L.Ed.2d 471 (2015). State defendants cite Armstrong for the proposition that, in order for federal jurisdiction to exist, plaintiff, at this threshold stage, must nevertheless establish the requirements for injunctive relief.

The district court ruled federal-question jurisdiction existed, based on the Court’s plain statement in Shaw. See Air Evac EMS, 2016 WL 4259552, at *5 (citing Shaw, 463 U.S. at 96 n.14, 103 S.Ct. 2890). The Shaw Court stated: “A plaintiff who seeks injunctive relief from state regulation, on the ground that such regulation is pre-empted by a federal statute which, by virtue of the Supremacy Clause of the Constitution, must prevail, thus presents a federal question which the federal courts have jurisdiction under 28 U.S.C. § 1331 to resolve”. 463 U.S. at 96 n.14, 103 S.Ct. 2890. Because Air Evac’s complaint seeks injunctive relief on the basis that the ADA preempts the TWCA, Shaw confers federal-question jurisdiction. See id.

Despite state defendants’ assertions to the contrary, Armstrong does not modify Shaw’s clear language. Armstrong holds the Supremacy Clause does not create a right to challenge state laws on preemp-. tion grounds; rather, the clause “instructs courts what to do when state and federal law clash, but is silent regarding who may enforce federal laws in court”. Armstrong, 135 S.Ct. at 1383. Thus, the Court held: “The ability to sue to enjoin unconstitutional actions by state and federal officers is the creation of courts of equity”, not the Supremacy Clause. Id. at 1384.

In Armstrong, the Court reaffirmed that plaintiffs’ seeking injunctive relief against state officers must satisfy Ex parte Young’s equitable exception. See id. This holding requires Air Evac proceed under Ex parte Young, if at all; but, it does not contradict Shaw’s plain 'grant of federal-question jurisdiction under Article III and 28 U.S.C. § 1331. See Shaw, 463 U.S. at 96 n.14, 103 S.Ct. 2890.

C.

Having concluded jurisdiction existed, the district court next considered Ex parte Young’s applicability. Air Evac EMS, 2016 WL 4259552, at *6. As noted, Ex parte Young represents an equitable exception to Eleventh Amendment sovereign immunity. 209 U.S. at 155-56, 28 S.Ct. 441. The doctrine allows plaintiff to sue a state official, in his official capacity, in seeking to enjoin enforcement of a state law that conflicts with federal law. See id. at 159-60, 28 S.Ct. 441. It is a threshold question which, therefore, does not consider the merits of an action, focusing instead on whether the complaint makes the requisite claims against proper parties. See id. at 150, 28 S.Ct. 441. Air Evac contends the district court misapplied Ex parte Young's, standard in two ways.

First, Air Evac challenges the court’s concluding the maximum-reimbursement rates are not enforced against Air Evac because TWCA regulates the amount insurers may pay, rather than the amount air-ambulance entities can collect. Air Evac EMS, 2016 WL 4259552, at *8. Air Evac asserts the statute is directly enforced against it every time it either seeks reimbursement through TWCA or disputes a reimbursement amount through DWC’s administrative process.

Second, Air Evac claims the court erred by requiring “initiated [or] threatened enforcement proceedings” in order, under Ex parte Young, to challenge TWCA’s balance-billing prohibition. See id. at *7. Air Evac contends Ex parte Young, instead, requires only a “straightforward inquiry” for whether the complaint seeks prospective equitable relief for an ongoing violation of federal law, citing Verizon Maryland, Inc. v. Public Service Commission of Maryland, 535 U.S. 635, 645, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002).

State defendants and insurers maintain the court was correct to require direct enforcement against Air Evac for the maximum-reimbursement provisions. Likewise, for the balance-billing prohibition, defendants agree with the court’s concluding there is no imminent or threatened enforcement proceeding sufficient to meet the Ex parte Young exception. In addition to echoing the court’s reasoning, defendants also contend: the dismissal should be affirmed because, inter alia, Air Evac does not meet the traditional requirements for equitable relief;, therefore, no injunctive relief can be issued pursuant to the Ex parte Young exception.

Ex parte Young concerned whether a federal court may enjoin a state official from enforcing an unconstitutional state law. 209 U.S. at 126-27, 28 S.Ct. 441. Underlying the issue was a railroad’s seeking an injunction against the Minnesota attorney general, who threatened criminal action and civil fines against any railroad that violated the state commission’s rate-setting order. Id. at 127-28, 28 S.Ct. 441. The railroad asserted, as discussed supra, that the rates amounted to a confiscatory taking, in violation of the Fourteenth Amendment; the attorney general claimed protection from suit under the Eleventh Amendment. See id. at 150, 28 S.Ct. 441.

Addressing the viability of a federal injunction, the Court held:

[I]ndividuals who, as officers of the State, are clothed with some duty in regard to the enforcement of the laws of the state, and who threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties affected an unconstitutional act, violating the Federal Constitution, may be enjoined by a Federal court of equity from such action.

Id. at 155-56, 28 S.Ct. 441. In justifying its holding, the Court avoided the apparent conflict with sovereign immunity by creating a legal “fiction”: a federal court does not violate state sovereignty when it orders a state official to do nothing more than uphold federal law under the Supremacy Clause. Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 255, 131 S.Ct. 1632, 179 L.Ed.2d 675 (2011); see Ex parte Young, 209 U.S. at 159-60, 28 S.Ct. 441.

Because this legal fiction infringes on state sovereignty, Ex parte Young and its progeny limit the exception. Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 269, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997) (affirming that, in applying Ex parte Young, courts “must ensure that the doctrine of sovereign immunity remains meaningful, while also giving recognition to the need to prevent violations of federal law”); see also Pennhurst State Sch. and Hosp. v. Halderman, 465 U.S. 89, 104-06, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (limiting Ex parte Young jurisdiction only to violations of the federal Constitution and statutes); Edelman v. Jordan, 415 U.S. 651, 677, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) (limiting Ex parte Young plaintiffs only to prospective relief). Most relevant to the action at hand, Ex parte Young requires defendants have “some connection” to the state law’s enforcement and threaten to exercise that authority. Ex parte Young, 209 U.S. at 157, 28 S.Ct. 441.

This “some connection” requirement is designed to ensure defendant is not merely being sued “as a representative of the state, and thereby attempting to make the state a party”. Id. For example, a state governor with a broad duty to uphold state law is not a proper defendant. See Morris v. Livingston, 739 F.3d 740, 745-46 (5th Cir. 2014).

Despite these restrictions, the Court has reinforced Ex parte Young’s being a “straightforward inquiry” and specifically rejected an approach that would go beyond a threshold analysis. See Coeur d’Alene, 521 U.S. at 296, 117 S.Ct. 2028 (O’Connor, J., concurring in part and in judgment). In Coeur d’Alene, the lead opinion proposed a balancing test, weighing the significance of the federal right, the availability of a state forum, and the importance of the state interest. Id. at 270-80, 117 S.Ct. 2028. Seven justices rejected this approach and agreed with Justice O’Connor’s position that a case-by-case balancing test “unnecessarily' recharacterizes and narrows” Ex parte Young. Id. at 291, 117 S.Ct. 2028 (O’Connor, J., concurring in part and in judgment); id. at 298, 117 S.Ct. 2028 (Souter, J., dissenting).

Subsequently, in Verizon, 535 U.S. at 645, 122 S.Ct. 1753 (quoting Coeur d’Alene, 521 U.S. at 296, 117 S.Ct. 2028 (O’Connor, J., concurring in part and in judgment)), a majority of the Court affirmed this principle, stating: “[A] court need only conduct a ‘straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective’ ”. There, a state regulatory commission issued an order interpreting the scope of a private contract, which had been subject to prior commission approval. Id. at 639-40, 122 S.Ct. 1753. Plaintiffs subsequent federal-court action claimed the commission’s order conflicted with federal law. Id. at 640, 122 S.Ct. 1753.

The Court conducted a “straightforward inquiry” into the pleadings and noted: “We have approved injunction suits against state regulatory commissioners in like contexts”. Id. at 645, 122 S.Ct. 1753 (collecting cases). Thus, the action could proceed against state commissioners for their role in implementing a state regulatory scheme. See id. at 645-48, 122 S.Ct. 1753.

Our court has also considered Ex parte Young’s navigating between state sovereignty and federal supremacy: specifically, how close a relationship is required between the state actor and the claimed unconstitutional act. Compare Okpalobi, 244 F.3d at 413-16 (lead plurality requiring a “special relation” to “threatened enforcement”), with K.P., 627 F.3d at 124 (explicitly declining to follow the Okpalobi plurality’s “special relation” standard). For example, in our en-banc decision in Okpa-lobi, the Eleventh Amendment question was whether defendants — Louisiana’s governor and attorney general — had a sufficient duty, under Ex parte Young, to enforce a Louisiana statute. See 244 F.3d at 410-11. The statute provided for private actions and unlimited tort liability against doctors who performed abortions. Id. at 409.

The lead opinion interpreted Ex parte Young’s, “some connection” language to require a “special relation” or “close connection”. See id. at 413-19 (citing Ex parte Young, 209 U.S. at 157, 28 S.Ct. 441; Fitts v. McGhee, 172 U.S. 516, 529, 19 S.Ct. 269, 43 L.Ed. 535 (1899)). Because the statute provided only for private enforcement by patients (as opposed to state enforcement), and because the governor and attorney general had only a “general duty” to see state laws enforced, the lead opinion held such a tenuous connection was insufficient to invoke Ex parte Young. Okpalobi, 244 F.3d at 423-24.

As noted supra, the Eleventh Amendment analysis in Okpalobi, however, re-eeived support only from a plurality of our en banc court; the majority decided the case on standing. See id. at 429 (Higginbotham, J., concurring); id. at 432-33 (Benavides, J., concurring in part and dissenting in part); id. at 441 (Parker, J., dissenting). Subsequently, in K.P., 627 F.3d at 124, our court stated: “Because that part of the [Okpalobi] en banc opinion did not garner majority support, the Eleventh Amendment analysis is not binding precedent”.

The K.P. court considered the same Louisiana abortion statute as had Okpalobi, but in a different context. K.P., 627 F.3d at 119-20, 122. There, plaintiff physicians were members of Louisiana’s patients’-compensation fund, which effectively capped physicians’ liability in medical-malpractice actions. Id. at 119. An oversight board administered the fund by reviewing patient claims and determining coverage. See id. But, when a patient filed a claim asserting abortion-related tort damages, the board relied on the Louisiana abortion statute to exclude the physicians from the fund’s coverage and liability cap. Id. at 120; see La. Rev. Stat. Ann. § 9:2800.12(A), (B)(2), (C)(2) (excluding abortion procedures from the “laws governing medical malpractice or limitations of liability thereof’). Plaintiff physicians’ subsequent federal-court action sought to enjoin the board’s denying them coverage based on the claimed unconstitutional abortion statute. K.P., 627 F.3d at 120.

In its Eleventh Amendment analysis, the K.P. court defined “enforcement” as involving “compulsion or constraint”. Id. at 124. It then held, without adopting the “special relation” standard from Okpalobi, that “the Board’s role starts with deciding whether to have a medical review panel consider abortion claims and ends with deciding whether to pay them. By virtue of these responsibilities, Board members are delegated some enforcement authority”. Id. at 125. Unlike the governor and attorney general in Okpalobi, the board in K.P. took specific action predicated on the abortion statute; this was a sufficient connection to enforcement to trigger the Ex parte Young exception. See id.

As these cases demonstrate, the Ex parte Young analysis can turn on subtle distinctions in the complaint. Ex parte Young and Okpalobi each involved a state attorney general as defendant. In Ex parte Young, the attorney general had authority to enforce the statute at issue, while the Louisiana abortion statute in Okpalobi provided for enforcement through private actions, not public officials.

On the other hand, in Okpalobi and K.P., the same statute was at issue, but defendants in the respective actions provided the determinative distinction. Rather than suing the attorney general and governor, as in Okpalobi, the K.P. plaintiffs sued the state-regulatory-board members, who had a specific means through which to apply the abortion statute. Thus, the Ex parte Young analysis turns on the complaint’s context — including the challenged state law and defendants — to determine whether “the state officer, by virtue of his office, has some connection with the enforcement of the act”. Ex parte Young, 209 U.S. at 157, 28 S.Ct. 441.

1.

Turning to the matter at hand, we must decide whether state defendants have the requisite connection to the enforcement of the maximum-reimbursement system and balance-billing prohibition. In doing so, we bear in mind the Court’s admonition that Ex parte Young presents a “straightforward inquiry” into the complaint’s claims. See Verizon, 535 U.S. at 645, 122 S.Ct. 1753.

First, as the district court noted, Air Evac claims an ongoing violation of federal law and seeks prospective relief. See Air Evac EMS, 2016 WL 4259552, at *7. The complaint claims the ADA expressly preempts the workers’-compensation system with respect to air-ambulance entities and seeks an injunction and declaratory judgment.

Next, we hold state defendants have a sufficient connection to the enforcement of the TWCA through the maximum-reimbursement rates and balance-billing prohibition. The district court was correct to recognize that “enforcement” under the maximum-reimbursement scheme is not the same type of direct enforcement found in Ex parte Young, for instance, where the attorney general threatened civil and criminal prosecution. But, such enforcement is not required. See, e.g., Verizon, 535 U.S. at 645-46, 122 S.Ct. 1753; K.P., 627 F.3d at 124-25. In Verizon, the Court allowed an action against commissioners who ordered specific payments between private parties. 535 U.S. at 645-46, 122 S.Ct. 1753. Likewise, in K.P., the board members’ reliance on the abortion statute to deny liability protection qualified as enforcement. 627 F.3d at 125.

Employing A.P.’s definition of “enforcement” as “compulsion or constraint”, state defendants obviously constrain Air Evac’s ability to collect more than the maximum-reimbursement rate under the TWCA system. Between their rate-setting authority and role in arbitrating fee disputes through the administrative process, state defendants effectively ensure the maximum-reimbursement scheme is enforced from start to finish. Therefore, the district court erred in not considering, for the purpose of Ex parte Young's, being applied, the maximum-reimbursement provision as a means of enforcing TWCA against Air Evac.

The parties debate whether Ex parte Young applies only when there is a threatened or actual proceeding to enforce the challenged state law. We need not resolve that question. To the extent Ex parte Young requires that the state actor “threaten” or “commence” proceedings to enforce the unconstitutional act, state defendants’ pervasive enforcement satisfies that test. See 209 U.S. at 156, 28 S.Ct. 441. In K.P., our court held the prior denial of liability coverage fulfilled the threatened-proceedings requirement; so, too, does state defendants’ enforcement of the 125% air-ambulance-reimbursement rate. See K.P., 627 F.3d at 125.

2.

Having held the Ex parte Young exception applies, we need not engage in a separate analysis of the balance-billing prohibition. As discussed, the district court concluded “Air Evac has failed to show an enforcement proceeding concerning the balance-billing prohibition is imminent, threatened, or even intended”. Air Evac EMS, 2016 WL 4259552, at *8. We note, however, that the balance-billing prohibition works in concert with state defendants’ implementation of the reimbursement system, serving as a backstop against alternative methods of fee collection. State defendants’ pervasive authority to oversee and enforce Texas’ workers’compensation system satisfies the Ex parte Young exception.

3.

Finally, courts recognize the significant overlap between Article III jurisdiction, Ex parte Young, and equitable relief. See, e.g., NiGen Biotech, L.L.C. v. Paxton, 804 F.3d 389, 394 n.5 (5th Cir. 2015) (equating and distinguishing Ex parte Young's, requirements with the “Article III minimum for standing to request an injunction”). As with most jurisdictional questions, Ex parte Young and standing turn on the specific details in the complaint.

These doctrines are both threshold questions, however, and do not consider the action’s merits. In fact, the Ex parte Young Court acknowledged the underlying action would rely on the Fourteenth Amendment, but noted “a decision of this case does not require an examination or decision of the question whether [the Fourteenth Amendment’s] adoption in any way altered or limited the effect of the [Eleventh] Amendment”. 209 U.S. at 150, 28 S.Ct. 441. In doing so, the Court recognized that its Eleventh Amendment analysis was distinct from any subsequent question on the merits. See id.; see also Verizon, 535 U.S. at 646, 122 S.Ct. 1753 (“But the inquiry into whether suit lies under Ex parte Young does not include an analysis of the merits of the claim.”).

Therefore, having determined Air Evac’s action satisfies the Ex parte Young exception, we need not consider — contrary to defendants’ assertion — whether the requirements for temporary or permanent equitable relief are also satisfied. Doing so is beyond the threshold jurisdictional question posed by Ex parte Young and would consider the availability and scope of any eventual relief.

D.

State defendants’ final contention (adopted by insurers) is that, assuming jurisdiction exists for this action, Colorado River abstention should be invoked in the light of PHI’s proceedings in Texas state court and the administrative system. See Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). Because the district court based dismissal on the Eleventh Amendment, it “declinefd] to consider the propriety of Colorado River abstention”. Air Evac EMS, 2016 WL 4259552, at *9. Discretionary Colorado River abstention may be applied when: a state proceeding is ongoing and is parallel to the federal proceeding; and, extraordinary circumstances caution against exercising concurrent federal jurisdiction. See Colorado River, 424 U.S. at 817-19, 96 S.Ct. 1236.

“Parallel actions” typically involve the same parties, but the .identity of the parties is not determinative. See Afr. Methodist Episcopal Church v. Lucien, 756 F.3d 788, 797 (5th Cir. 2014). Instead, a court may “look both to the named parties and to the substance of the claims asserted” to determine whether the state proceeding would be dispositive of a concurrent federal proceeding. Id. If the matters are deemed parallel, the court must engage in a six-factor balancing test, but “with the balance heavily weighted in favor of the exercise of [federal] jurisdiction”. Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 16, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983); see Kelly Inv., Inc. v. Cont’l Common Corp., 315 F.3d 494, 497 (5th Cir. 2002) (listing the Colorado River factors).

For the requisite parallel action, state defendants point to the above-described PHI litigation, which arose out of DWC’s administrative appeals process. As discussed, Air Evac and numerous other air-ambulance entities, in 2012, began challenging reimbursement rates through DWC’s fee-dispute process. The appeals were consolidated; and, after extensive administrative proceedings, an ALJ ruled against ADA preemption. PHI sought judicial review in the Travis County district court; the other air-ambulance matters were held in abeyance pending resolution of that appeal. Shortly after oral argument in our court for the instant appeal, the state court ruled against preemption and found a 125% reimbursement rate adequate. See Tex. Mut. Ins. Co., et al. v. PHI Air Medical, LLC, Cause No. D-1-GN-15-00490 (Tex. 53d Jud. Dist. 15 Dec. 2016). PHI has appealed to Texas’ court of appeals.

Nonetheless, given the differences between the two actions and lack of preclu-sive effect, we do not consider the PHI state-court proceeding to be “parallel” for the purpose of Colorado River abstention. For example, the parties are different on both sides: neither Air Evac nor state defendants are party to the PHI litigation. In addition, the state proceeding required the adjudicator to determine an adequate reimbursement rate, an issue not before our court. See id. at 2. And, most especially, the exceptional nature of federal abstention cuts in favor of jurisdiction. Accordingly, we decline to abstain.

III.

For the foregoing reasons, the judgment is VACATED, and this matter is REMANDED for further proceedings consistent with this opinion.


source: Caselaw Access Project

author: JERRY E. SMITH, Circuit Judge:

license: Public Domain

text:
    AMERICAN HUMANIST ASSOCIATION; Isaiah Smith, Plaintiffs-Appellees, v. Jack MCCARTY, in his individual and official capacity; Joe D. Tolbert, in his individual and official capacity; Brad Greene, in his individual and official capacity; Richard Davis, in his individual and official capacity; Ralph Kunkel, in his individual and official capacity; Cary Hancock, in his individual and official capacity; Dolores Webb, in her individual and official capacity, Defendants-Appellants. American Humanist Association; Isaiah Smith, Plaintiffs-Appellants, v. Birdville Independent School District; Jack McCarty, in his individual and official capacity; Joe D. Tolbert, in his individual and official capacity; Brad Greene, in his individual and official capacity; Richard Davis, in his individual and official capacity; Ralph Kunkel, in his individual and official capacity; Cary Hancock, in his individual and official capacity; Dolores Webb, in her individual and official capacity, Defendants-Appellees.

      No. 15-11067, No. 16-11220
    United States Court of Appeals, Fifth Circuit.
    FILED March 20, 2017

      Monica Lynn Miller, American Humanist Association, Washington, DC, Patrick Allen Luff, Luff Law Firm, P.L.L.C., San Antonio, TX, Roger L. Mandel, Lackey Hershman, L.L.P., Dallas, TX, for Plaintiffs-Appellees.
    Donald Craig Wood, Attorney, Katie Elizabeth Payne, Walsh Gallegos Trevino Russo & Kyle, P.C., San Antonio, TX, for Defendants-Appellants.
    Stacy Tuer Castillo, Attorney, Walsh Gallegos Trevino Russo & Kyle, P.C., San Antonio, TX, for Defendants-Appellants Ralph Kunkel, in his individual and official capacity, Cary Hancock, in his individual and official capacity, Dolores Webb, in his individual and official capacity.
    Christopher Blewer Gilbert, Thompson & Horton, L.L.P., Houston, TX, for Texas Association of School Boards-Legal Assistance Fund.
    Before SMITH, CLEMENT, and SOUTHWICK, Circuit Judges.
   JERRY E. SMITH, Circuit Judge:

The American Humanist Association (“AHA”) and Isaiah Smith appeal a summary judgment for defendants, the Birdville Independent School District and its seven board members (collectively, “BISD”). AHA and Smith allege that BISD’s policy of inviting students to deliver statements, which can include invocations, before school-board meetings violates the First Amendment’s Establishment Clause. Because the practice falls more nearly within the recently reaffirmed legislative-prayer exception to the Supreme Court’s Establishment Clause jurisprudence, we affirm the summary judgment in favor of the school district and, in the accompanying .consolidated appeal, we reverse and render on the denial of qualified immunity to the school board members.

I.

BISD is a public school district. Smith is a 2014 graduate of Birdville High School and a member of AHA, an organization that “advócateles] progressive values and equality for humanists, atheists, and freethinkers.” While a student at Bird-ville High School and as an alumnus, Smith attended BISD board meetings, some of which included student-led prayers. At a board meeting in December 2014, with a student-led invocation, Smith said that he felt affronted by the prayer and that it meant that BISD was “favoring religion over nonreligion.” Smith is and has been an adult at all relevant times.

BISD’s board holds monthly meetings in the District Administration Building, which is not located within a school. The meetings include sessions open to the public. Attendees are free to enter and leave at any time. Most attendees are adults, though students frequently attend school-board meetings to receive awards or for other reasons, such as brief performances by school bands and choirs.

Since 1997, two students have opened each session — with one leading the Pledge of Allegiance and the Texas pledge and the other delivering some sort of statement, which can include an invocation. Those student presenters, typically either elementary- or middle-school students, are given one minute. BISD officials do not direct them on what to say but tell them to make sure their statements are relevant to school-board meetings and not obscene or otherwise inappropriate. At a number of meetings, the student speakers have presented poems or read secular statements. But according to AHA and Smith, they are usually an invocation in the form of a prayer, with speakers frequently referencing “Jesus” or “Christ.” AHA and Smith claim that sometimes the prayers are directed at the audience through the use of phrases such as “let us pray,” “stand for the prayer,” or “bow your heads.”

From 1997 through February 2015, the student-led presentations were called “invocations” and were delivered by students selected on merit. In March 2015, in an apparent response to AHA’s concerns about the invocations, BISD began referring to them as “student expressions” and providing disclaimers that the students’ statements do not reflect BISD’s views. BISD began randomly selecting, from a list of volunteers, the students who would deliver the expressions.

II.

AHA and Smith sued BISD under 42 U.S.C. § 1983 for monetary damages from the individual school-board members and declaratory and injunctive relief. In their amended complaint, AHA and Smith alleged that BISD has a “policy, practice, and custom of permitting, promoting, and endorsing prayers delivered by school-selected students” at board meetings, in violation of the Establishment Clause. BISD answered that the student-led invocations either qualify as private speech, satisfy the conventional Establishment Clause tests, or fit within the legislative-prayer exception to those tests.

BISD moved to dismiss, alleging that AHA and Smith had failed to state a claim and that the school-board members were entitled to qualified immunity. The district court denied the motion. The individual-capacity defendants filed an interlocutory appeal challenging the denial of qualified immunity.

BISD moved for summary judgment. The district court granted that motion, finding that the legislative-prayer exception applies. AHA and Smith filed a separate appeal, bringing an issue of first impression to this court.

III.

The Supreme Court generally applies at least one of three tests under the Establishment Clause: the Lemon test, the endorsement test, and the coercion test. But in Marsh v. Chambers, 463 U.S. 783, 784-85, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983), a member of the Nebraska Legislature sued state officials, claiming that the practice of opening each session with a chaplain’s prayer violated the Establishment Clause. The Court upheld the practice without applying any of the conventional tests, observing that “[t]he opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country.” Id. at 786, 103 S.Ct. 3330.

The Court revisited the issue in Town of Greece v. Galloway, — U.S. -, 134 S.Ct. 1811, 1827-28, 188 L.Ed.2d 835 (2014), stating unequivocally that the legislative-prayer exception in Chambers extends to prayers delivered at town-board meetings. Those prayers, however, must not “denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion.” Id. at 1823. Moreover, “[t]he principal audience for these invocations is not ... the public but lawmakers themselves, who may find that a moment of prayer or quiet reflection sets the mind to a higher purpose and thereby eases the task of governing.” Id. at 1825.

As distinguished from legislative-prayer cases, however, the Supreme Court, in school-prayer cases such as Santa Fe Independent School District v. Doe, 530 U.S. 290, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000), Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992), and County of Allegheny v. ACLU, 492 U.S. 573, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989), has applied the conventional Establishment Clause tests. In Weisman, a graduation-prayer case, the Court, 505 U.S. at 592, 112 S.Ct. 2649, explained that “there are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools” and that “prayer exercises in public schools carry a particular risk” of unconstitutional coercion. The Court distinguished Weisman from Chambers, noting that the legislative-prayer exception does not apply in “the public school context.” Id. at 597, 112 S.Ct. 2649. In ACLU, the Court opined that “state-sponsored prayer in public schools” is “unconstitutional.”

The key question, then, is whether this case is essentially more a legislative-prayer case or a school-prayer matter. Like Galloway, this dispute is about the constitutionality of permitting religious invocations at the opening, ceremonial phase of a local deliberative body’s public meetings. But like Santa Fe, this case is about school-district-sanctioned invocations delivered by students on district property.

We agree with the district court that “a school board is more like a legislature than a school classroom or event.” The BISD board is a deliberative body, charged with overseeing the district’s public schools, adopting budgets, collecting taxes, conducting elections, issuing bonds, and other tasks that are undeniably legislative. See Tex. Educ. Code § 11.1511. In no respect is it less a deliberative legislative body than was the town board in Galloway.

The invocations are appropriately “solemn and respectful in tone.” Galloway, 134 S.Ct. at 1823. Most attendees at school-board meetings, including Smith, are “mature adults,” and the invocations are “delivered during the ceremonial portion of the [school board’s] meeting.” Id. at 1827. “Nothing in the record suggests that members of the public are dissuaded from leaving the meeting room during the prayer, arriving late, or even ... making a later protest.” Id. Occasionally, BISD board members and other school officials will ask the audience, including any students in the audience, to stand for the invocation. Those polite requests, however, do not coerce prayer.

AHA and Smith advance three colorable theories for why this, should be understood as a school-prayer case. First, they claim that legislative prayers must be “internal acts” that are “entirely” for the benefit of lawmakers. As BISD acknowledges, its invocations are meant to benefit students and other attendees at school-board meetings, not just board members. But in Galloway, id. at 1825, the Court explained that lawmakers were merely the “principal audience” for the invocations, suggesting that the audience may be made up of various groups, as well as unaffiliated individuals, so long as lawmakers are the main one. In its brief, BISD explains that the board members are the invocations’ primary audience. AHA and Smith have not shown otherwise.

Second, AHA and Smith claim that BISD’s invocation policy does not fit within the legislative-prayer exception because it lacks a “unique history.” In Galloway, id. at 1819, the Court drew on historical evidence, describing its inquiry as “deter-min[ing] whether the prayer practice ... fits within the tradition long followed in Congress and the state legislatures.” In Chambers, 463 U.S. at 790, 103 S.Ct. 3330, the Court emphasized the long history of legislative prayer, explaining that Nebraska’s custom was “consistent with two centuries of national practice” and would not “be cast aside.”

School-board prayer presumably does not date back to the Constitution’s adoption, since “free public education was virtually nonexistent at the time.” Edwards v. Aguillard, 482 U.S. 578, 583 n.4, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987). Nonetheless, dating from the early nineteenth century, at least eight states had some history of opening prayers at school-board meetings. And Chambers and Galloway show that there was a well-established practice of opening meetings of deliberative bodies with invocations. See Galloway, 134 S.Ct. at 1819. Such practices date from the First Congress, which suggests that “the Framers considered legislative prayer a benign acknowledgement of religion’s role in society.” Id.

We do not overlook AHA and Smith’s notion that the presence of students at BISD board meetings distinguishes this case from Chambers and Galloway. That is significant, because courts must consider “both the setting in which the prayer arises and the audience to whom it is directed.” Galloway, 134 S.Ct. at 1825. Children are especially susceptible to peer pressure and other forms of coercion. See, e.g., Weisman, 505 U.S. at 592, 112 S.Ct. 2649. Nonetheless, the presence of students at board meetings does not transform this into a school-prayer case. There were children present at the town-board meetings in Galloway, as the dissenting and lower court opinions noted; the Court nonetheless applied the legislative-prayer exception. Moreover, here, as in Galloway, “the prayer is delivered during the ceremonial portion of the ... meeting.” Galloway, 134 S.Ct. at 1827.

IV.

Although the Supreme Court has not addressed whether the legislative-prayer exception applies to school-board invocations, two circuits have. Both found that the legislative-prayer exception does not apply. In Coles ex rel. Coles v. Cleveland Board of Education, 171 F.3d 369, 383 (6th Cir. 1999), the court held that the legislative-prayer exception does not extend to invocations at school-board meetings. Although such meetings “might be of a ‘different variety’ than other school-related activities ... they are part of the same ‘class’ as those other activities in that they take place on school property and are inextricably intertwined with the public school system.” Id. at 377. Nevertheless, the court acknowledged that it is a tough question: “This case puts the court squarely between the proverbial rock and a hard place.” Id. at 371.

The court in Doe v. Indian River School District, 653 F.3d 256 (3d Cir. 2011), reached a like conclusion. It described comparisons between the school board and municipal bodies as “ill-suited,” because the board’s “entire purpose and structure ... revolves around public school education.” Id. at 278-79.

Coles and Indian River predate Galloway and are factually, and therefore legally, distinguishable from the circumstance at BISD. Coles involved a school board that always had at least one student member. Coles, 171 F.3d at 383. In Indian River, student representatives attended board meetings “in their formal role as student government representatives.” Indian River, 653 F.3d at 264. In contrast, no students sit on the BISD board, BISD board members do not deliver the invocations, and the student representatives are not expected to attend board meetings.

At least two other circuit-court decisions — including one by this court — have touched on these issues. Both predate Galloway and turn on an argument the Court rejected there.

In Bacus v. Palo Verde Unified School District Board of Education, 52 Fed.Appx. 355, 356-57 (9th Cir. 2002) (per curiam), the court assumed arguendo that the legislative-prayer exception applies to school-board invocations but held the district’s policy unconstitutional because of the sectarian nature of the invocations. In Doe v. Tangipahoa Parish School Board, 473 F.3d 188 (5th Cir. 2006), vacated on reh’g en banc, 494 F.3d 494 (5th Cir. 2007), a split panel of this court struck down a school board’s invocation policy. One of the judges in the majority did so on account of the sectarian nature of the invocations. Id. at 202-04. But in Galloway, 134 S.Ct. at 1820-23, the Court said the Constitution does not require invocations to be non-sectarian.

V.

BISD board members often stand and bow their heads during the student-led invocations. AHA and Smith claim that violates the Establishment Clause regardless of whether the invocation policy itself is constitutional. They point to Doe v. Duncanville Independent School District, 70 F.3d 402, 406 (5th Cir. 1995), holding that a high-school basketball coach’s participation in team prayers, on the basketball court at games, was an “unconstitutional endorsement of religion.” AHA and Smith note that unlike that case, this one concerns high-level school district officials (such as principals and board members), some of whom publicize their religious affiliation on the district’s website. Moreover, in Duncanville a member of the team was mocked and “required to stand by while the team prayed” and was confronted by spectators who asked, “Aren’t you a Christian” and by a teacher who, in class, called her a “little atheist.” Id. at 404.

This case, by way of stark contrast, concerns legislative prayers. It is distinguishable from Duncanville for that reason alone. Legislative prayers are recited for the benefit of legislative officers. It would be nonsensical to permit legislative prayers but bar the legislative officers for whom they are being primarily recited from participating in the prayers in any way. Indeed, the Supreme Court did not take issue with the fact that Town of Greece board members bowed their heads during invocations. Galloway, 134 S.Ct. at 1826.

VI.

' “[Legislative prayer lends gravity to public business, reminds lawmakers to transcend petty differences in pursuit of a higher purpose, and expresses a common aspiration to a just and peaceful society.” Galloway, 134 S.Ct. at 1818 (citing Donnelly, 465 U.S. at 693, 104 S.Ct. 1355). Although it is possible to imagine a school-board student-expression practice that offends the Establishment Clause, this one, under its specific facts, does not. In No. 16-11220, the summary judgment is AFFIRMED. In No. 15-11067, the order denying summary judgment is REVERSED, and a judgment of dismissal is RENDERED.

      . See American Humanist Association, https:// americanhumanist.org (last visited Mar. 17, 2017).

      . Of the 101 meetings from February 2008 to June 2016, elementary- and middle-school students delivered the presentations 84 times.

      . According to AHA and Smith, these requests typically come from the student speakers, though on occasion a board member or other school official has asked the audience to stand for the invocation. At the summary-judgment stage, "we must assume the facts as alleged by the [plaintiff].” Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 76, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998).

      . Each BISD campus selected students on a rotational basis (school-board members did not participate in the selection process). Campus officials took into account academic achievement, leadership, citizenship, extracurricular activities, and other factors.

      . In late 2014, AHA sent BISD a letter complaining of the invocations and asking BISD to provide "written assurances that prayer will not be included in future School Board meetings.” BISD's associate superintendent later testified that he recommended the policy changes so that the district "wouldn’t be subject to litigation.”

      . The published policy, in its entirety, reads, The subject of the student introductions must be related to the purpose of the event and to the purpose of marking the opening of the event; honoring the occasion, the participants, and those in attendance; bringing the audience to order; and focusing the audience on the purpose of the event. A student must stay on the subject, and the student may not engage in obscene, vulgar, offensively lewd, or indecent speech. The District shall treat a student’s voluntary expression of a religious viewpoint, if any, on an otherwise permissible subject in the same manner the District treats a student's voluntary expression of a secular or other viewpoint on an otherwise permissible subject and may not discriminate against the student based on a religious viewpoint expressed by the student on an otherwise permissible subject.

      . Though student speakers are chosen randomly from a pool of volunteers, that pool may not be representative of the BISD student body: It consists only of members of the student leadership at the respective campuses.

      . The qualified-immunity and summary-judgment appeals have been consolidated. Because there is no constitutional violation, we do not address qualified immunity except summarily to reverse the denial of immunity.

      . See Lynch v. Donnelly, 465 U.S. 668, 679, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (“[W]e have repeatedly emphasized our unwillingness to be confined to any single test or criterion in this sensitive area.").

      . Under the Lemon test, for a government practice to be constitutional, it must (1) have a secular purpose, (2) have a primary effect that neither advances nor inhibits religion, and (3) not foster excessive government entanglement with religion. Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971).

      . Under the endorsement test, a "[gjovernment unconstitutionally endorses religion whenever it appears to take a position on questions of religious belief, or makes adherence to a religion relevant in any way to a person’s standing in the political community.” Ingebretsen ex rel. Ingebretsen v. Jackson Pub. Sch. Dist., 88 F.3d 274, 280 (5th Cir. 1996). "The government creates this appearance when it conveys a message that religion is favored, preferred, or promoted over other beliefs.” Id.

      . Under the coercion test, unconstitutional coercion occurs where “(1) the government directs (2) a formal religious exercise (3) in such a way as to oblige the participation of objectors.” Doe ex rel. Doe v. Beaumont Indep. Sch. Dist., 173 F.3d 274, 285 (5th Cir. 1999) (quoting Jones v. Clear Creek Indep. Sch. Dist., 977 F.2d 963, 970 (5th Cir. 1992), abrogated on other grounds by Doe v. Santa Fe Indep. Sch. Dist., 168 F.3d 806 (5th Cir. 1999)).

      . Chambers, 463 U.S. at 796, 103 S.Ct. 3330 (Brennan, J., dissenting) ("The Court makes no pretense of subjecting Nebraska's practice of legislative prayer to any of the formal 'tests’ that have traditionally structured our inquiry under the Establishment Clause.”).

      . ACLU, 492 U.S. at 590 n.40, 109 S.Ct. 3086 (1989) (citing Abington Sch. Dist. v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963)).

      . See Marie Elizabeth Wicks, Prayer Is Prologue: the Impact of Town of Greece on the Constitutionality of Deliberative Public Body Prayer at the Start of School Board Meetings, 31 J.L. & Pol. 1, 30-31 (Summer 2015).

      . Arguably, BISD's practice of student-led invocations undermines its claim that its practice is consistent with the historical practice, given that, historically, legislative invocations were delivered by chaplains. See Chambers, 463 U.S. at 787-88, 103 S.Ct. 3330. But the long history of chaplain-led invocations is relevant only insofar as it suggests that the Framers approved of them.
      Although chaplains may be better at giving appropriately solemnizing invocations, the fact of their institutional religious affiliations risks the perception that the governmental body responsible for inviting them is affiliating itself with institutional religion. Allowing a student to give a Jewish prayer does not create the same perception of institutional entanglement that might result from a prayer from a rabbi. Thus, BISD's practice of allowing students to deliver invocations fits within the legislative-prayer exception, notwithstanding its departure from the historical practice of chaplain-led invocations.

        . See also id. at 786, 103 S.Ct. 3330 (stating that “[t]he opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country.'').

      . Galloway, 134 S.Ct. at 1846, 1848 (Kagan, J., dissenting).

      . Galloway v. Town of Greece, 681 F.3d 20, 23 (2d Cir. 2012) (stating that "members of Boy Scout troops and other student groups have led the Pledge of Allegiance, and high school students may fulfill a state-mandated civics requirement necessary for graduation by going to Board meetings.").

      . See Galloway, 134 S.Ct. at 1831 (Alito, J., concurring) (rejecting the dissent’s concern that "ordinary citizens (and even children!) are often present” at- town-board meetings).

      . Establishment Clause cases often hinge on facts peculiar to each situation. See Weisman, 505 U.S. at 597, 112 S.Ct. 2649 ("Our Establishment Clause jurisprudence remains a delicate and fact-sensitive one.... ”).

      .Two district courts (in addition to the court a quo) have discussed the issue. In Freedom from Religion Foundation v. Chino Valley Unified School District Board of Education, 2016 U.S. Dist. LEXIS 19995, at *31-32 (C.D. Cal. Feb. 18, 2016), the court found that the legislative-prayer exception does not apply to a school board's practice of beginning its meetings with invocations. In Doe v. Tangipahoa Parish School Board, 631 F.Supp.2d 823, 839 (E.D. La. 2009), the court found that the legislative-prayer exception did apply to a school board's practice of beginning school-board meetings with invocations.

      . The en banc court vacated that decision for lack of standing.

      . BISD’s case is factually distinguishable from Bormuth v. County of Jackson, 849 F.3d 266 (6th Cir. 2017), vacated for reh’g en banc, 2017 U.S. App. LEXIS 3564 (6th Cir. Feb. 27, 2017), which also involved the legislative-prayer exception. Bormuth concerned a county board whose members personally delivered religious invocations and "affirmatively ex-eluded non-Christian prayer givers.” Id. at 287. The record suggests that board members "singled out [the plaintiff] for opprobrium” and may have denied him a spot on a particular committee in retaliation for his criticisms of the board’s invocation policy. Id. at 286.

      .We do not reach BISD's arguments that the student-led invocations are private speech and that the district's policy satisfies the conventional Establishment Clause tests.

      . It is thus unnecessary for us to decide whether a contrary practice, which would prohibit student speakers from religious expression at school-board meetings, would offend the Free Exercise Clause. Nor do we opine on the assertion, by thirteen states and two state governors, appearing severally as amici curiae, that “what [AHA and Smith] are truly seeking is a ban on allowing students to express a religious message during their remarks.” •


author: E. GRADY JOLLY, Circuit Judge:

text:
    SETTLEMENT FUNDING, L.L.C.; Peachtree Settlement Funding, L.L.C.; Evelyn E. Franklin, Plaintiffs-Appellants Cross-Appellees v. RAPID SETTLEMENTS, LIMITED, Rapid Management Corporation; Stewart A. Feldman, Defendants-Appellees Cross-Appellants and RSL Funding, L.L.C., Defendant-Third Party Plaintiff-Appellee Cross-Appellant v. J.G. Wentworth S.S.C., L.P.; JGWPT Holdings, L.L.C.; JLL Partners, Incorporated; David Miller; JG Wentworth Originations, L.L.C., Third Party Defendants-Cross-Appellees
    No. 16-20109
    United States Court of Appeals, Fifth Circuit.
    FILED March 22, 2017

      Lawrence Bradley Hancock, Esq., Christopher David Johnsen, Holland & Knight, L.L.P., Houston, TX, for Plaintiffs-Appellants Cross-Appellees.
    Lawrence Bradley Hancock, Esq., Christopher David Johnsen, Holland & Knight, L.L.P., Houston, TX, for Third Party Defendants-Cross-Appellees.
    Paul Jonathan Brown, Greenberg Trau-rig, L.L.P., Houston, TX, for Third Party Defendants-Cross-Appellees J.G. Went-worth' S.S.C., L.P., JGWPT Holdings, L.L.C., JLL Partners, Incorporated, David Miller.
    Michael Alan Choyke, Esq., Wright & Close, L.L.P., John Robert Craddock, Counsel, Feldman Law Firm, L.L.P., Houston, TX, for Defendant-Third Party Plaintiff-Appellee Cross-Appellant.
    Edward John Gorman, John Robert Craddock, Counsel, Feldman Law Firm, L.L.P., Houston, TX, for Defendants-Ap-pellees Cross-Appellants.
    Before JOLLY, SMITH, and PRADO, Circuit Judges.
   E. GRADY JOLLY, Circuit Judge:

This dispute arises between two companies in the secondary market for structured settlement payments: Peachtree and Rapid. These two companies are in the business of identifying individuals who are the beneficiaries of structured settlements, which provide a stream of payments, much like an annuity, usually over an extended period of years; once an annuitant is identified, the companies offer to purchase the stream of payments in return for a lump sum. Here, Peachtree sued Rapid for tor-tious interference with its contracts, alleging that Rapid “poached” clients whose annuities it had already contracted to purchase.

The district court, relying on a decision by a Texas appellate court, dismissed Peachtree’s tortious interference claims as a matter of law. Peachtree appeals. Rapid cross-appeals, arguing for the first time after nearly four years of federal litigation that there is no federal subject matter jurisdiction because (1) the removal notice did not adequately plead the citizenship of the LLC entities that are parties to this case, and (2) the pleadings did not, on their face, raise a federal question.

We are not happy that jurisdiction is a late show-up in this case. Nevertheless, we hold that the plaintiffs have failed to meet their burden of establishing either federal question or federal diversity jurisdiction. In short, the federal courts have no subject matter jurisdiction over this case. We vacate the judgment and remand with directions to remand the case to the state court.

I.

A.

In the world of. purchasing payment rights to structured settlement agreements, it appears that not all the players wear white gloves. This characteristic of the business has been noticed by the State of Texas and several other states. Thus, to protect recipients of structured settlements from unfair or abusive offers, many states have enacted Structured Settlement Protection Acts that require court approval of any contract to sell the payment rights to a structured settlement. See, e.g., Tex. Civ. Prac. & Rem. Code § 141.001 et seq.

The crux of this dispute is that Peach-tree claims that Rapid has been interfering with the business relations between it and its clients. In distilled terms, Peachtree alleges that, through expensive search and advertising efforts, it finds “clients” — recipients of structured settlements — makes them an offer for their payment stream, and then helps them through the hurdle of court approval of the transfer agreement. The defendant, Rapid, then peruses the court filings, directly contacts Peachtree’s clients while the approval request is still pending in court, and makes the client a more generous offer, causing the client to either renege on his agreement with Peachtree or demand that Peachtree increase its offer.

B.

The present litigation began in 2006, when Peachtree sued Rapid in Texas state court alleging, among other things, tor-tious interference with a contract between it and Franklin, a New York resident. Rapid, it alleged, found Franklin through the court filings and tried to persuade her to breach her contract with Peachtree by making her a better offer. The litigation was consolidated with Peachtree’s similar claim against Rapid involving a Texas resident, Michale Parenti,

In 2012, some six years into the litigation before the Texas state court, Rapid asserted new claims against a group of third-party defendants called the ‘Went-worth Parties.” Rapid alleged, among other things, a state law civil conspiracy claim. The newly-impleaded Wentworth Parties promptly removed the entire case to federal court. They stated that the basis for removal was both diversity jurisdiction and federal question, jurisdiction. The Wentworth Parties were later dismissed, and are no longer parties to the case. Peachtree and Rapid continued to litigate their tortious interference suit in federal court.

By September 2015, the only disputed colorable claims were Peachtree’s tortious interference claims against Rapid with respect to Franklin and Parenti. On summary judgment, the district court dismissed Peachtree’s interference claims as a matter of law. The court relied on a recent decision from a Texas appellate court, Washington Square Fin., LLC v. RSL Funding, LLC, 418 S.W.3d 761 (Tex. App.—Houston [14th Dist.] 2013, pet. denied), which held Texas law did not recognize a tortious interference claim based on a contract that had not yet been approved pursuant to the Texas Structured Settlement Protection Act; Peachtree’s contracts with Franklin and Parenti had not been approved at the time Rapid allegedly made its raid. Peachtree voluntarily dismissed any remaining claims it had pending, and the district court entered final judgment. Peachtree timely appeals the judgment.

II.

As earlier indicated, for the first time on appeal, after nearly four years of litigation in the federal district court, Rapid now makes the argument that there is no federal jurisdiction. Specifically, it argues that there was neither federal question jurisdiction nor diversity of citizenship at the time the Wentworth Parties removed the case to federal court.

“A lack of subject matter jurisdiction may be raised at any time and may be examined for the first time on appeal.” Volvo Trucks N. Am., Inc. v. Crescent Ford Truck Sales, Inc., 666 F.3d 932, 935 (5th Cir. 2012). The burden of establishing subject matter jurisdiction rests upon the party asserting jurisdiction — in this case, Peachtree. Id.

III.

Peachtree urges us to keep the case in federal court. It first argues that there is federal question jurisdiction because the third-party complaint that Rapid filed against the Wentworth Parties raised a federal question at the time of removal. Specifically, Peachtree contends that Rapid’s state law civil conspiracy claim, which alleged that the Wentworth Parties conspired to restrain trade, also implicated federal antitrust law. We cannot agree and hold that the state law conspiracy claim did not raise a federal question.

“Under the well-pleaded complaint rule, a federal court does not have federal question jurisdiction unless a federal question appears on the face of the plaintiffs well-pleaded complaint.” Elam v. Kan. City S. Ry. Co., 635 F.3d 796, 803 (5th Cir. 2011); see also 28 U.S.C. § 1331. A federal question, however, may arise from a state law claim where “(1) a federal right is an essential element of the state claim, (2) interpretation of the federal right is necessary to resolve the case, and (3) the question of federal law is substantial.” Howery v. Allstate Ins. Co., 243 F.3d 912, 917 (5th Cir. 2001) (footnote omitted). Still, “there is no federal question jurisdiction if the plaintiff properly pleads only a state law cause of action.” Elam, 635 F.3d at 803 (citations, quotations, and alterations omitted). Further, “[a] plaintiff is the master of his complaint and may allege only state law causes of action, even when federal remedies might also exist.” Id.

Rapid’s third-party state court complaint for civil conspiracy against the Wentworth Parties alleged that the Went-worth Parties conspired to artificially depress offer prices in the secondary market for structured settlement payment rights. They did so, Rapid alleged, by making improper agreements with other companies to refrain from soliciting other members’ deals and to refrain from making bids to customers who have already signed with another company.

The elements of a civil conspiracy in Texas include “(1) two or more persons; (2) an object to be accomplished; (3) a meeting of the minds on the object or course of action; (4) one or more unlawful, overt acts; and (5) damages as a proximate result.” Tri v. J.T.T., 162 S.W.3d 552, 556 (Tex. 2005). Rapid’s complaint does not specifically state what “unlawful, overt act” with which it is charging the Wentworth Parties. It appears plausible, based on the allegations, that the complaint is accusing them of violating either federal antitrust laws, see 15 U.S.C. § 1 et seq., or Texas antitrust laws, see Tex. Bus. & Com. Code § 15.01 et seq., or both.

Peachtree argues that the complaint asserts a claim for violation of federal antitrust laws, and thus raises a federal question, because it alleges an “industry-wide agreement.” Further, it'notes, Rapid alleges a “nationwide scheme” to thwart competition on a “nationwide basis” by companies that control “upwards of 65% of the U.S. market.”

But Rapid’s allegations are compatible with a claim for violations of only Texas antitrust law. As this court has acknowledged, even where a transaction primarily affects interstate commerce, the Texas antitrust statutes may apply if only a component of the transaction implicates intrastate commerce. See Pounds Photographic Labs, Inc. v. Noritsu Am. Corp., 818 F.2d 1219, 1224 (5th Cir. 1987); see also Coca-Cola Co. v. Harmar Bottling Co., 218 S.W.3d 671, 682-83 (Tex. 2006) (“The mere involvement of interstate commerce does not permit a defendant to escape suit [under Texas antitrust laws] .... [T]he Act’s purpose of redressing injury in Texas is not to be defeated merely because the injurious conduct also occurred in other states.”). Further, if Rapid had intended to assert a claim based on an underlying violation of federal antitrust law, it ought to have filed the claim in federal court, as federal courts have exclusive jurisdiction over federal antitrust claims. See Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373, 379-80, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985).

Accordingly, it is, at best, ambiguous whether the civil conspiracy complaint is based on a violation of federal or state antitrust law. Because “[a]ny ambiguities are construed against removal because the removal statute should be strictly construed in favor of remand,” Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002), we hold that the complaint, on its face, does not implicate federal antitrust law and therefore does not raise a federal question. There is no federal question jurisdiction in this case.

IV.

“[CJomplete diversity requires that all persons on one side of the controversy be citizens of different states than all persons on the other side.” McLaughlin v. Miss. Power Co., 376 F.3d 344, 353 (5th Cir. 2004) (citations and quotations omitted).

The Wentworth Parties’ removal notice failed to allege complete diversity because it did not adequately allege the citizenship of every party; that is, it failed to allege the citizenship of each member of the many LLC- and partnership-litigants. A party seeking to establish diversity jurisdiction must specifically allege the citizenship of every member of every LLC or partnership involved in a litigation. See Am. Motorists Ins. Co. v. Am. Emp. Ins. Co., 600 F.2d 15, 16 (5th Cir. 1979) (“[T]he plaintiffs complaint must specifically allege each party’s citizenship.”); Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1080 (5th Cir. 2008) (“[T]he citizenship of a LLC is determined by the citizenship of all of its members.”); see also Howery, 243 F.3d at 919 (“[T]he party asserting federal jurisdiction must distinctly and affirmatively allege the citizenship of the parties.”) (citations, quotations, and alterations omitted). In short, federal diversity jurisdiction was not established by the allegations of the Went-worth Parties’ notice of removal.

Peachtree nonetheless argues that there is diversity jurisdiction. In support of its argument that the parties are in fact diverse, Peachtree filed a motion for judicial notice of facts asserted in a sworn declaration by Keith Mayer (the “Mayer Affidavit”), an officer in the corporation that owns Peachtree, as well as documents from public records and court filings purportedly evidencing the citizenship of parties involved in this litigation.

Although Peachtree thoroughly briefs its request that we take “judicial notice” of its filings, we need not decide the issue. Even assuming that we may consider the filings, they do not establish complete diversity at the time of removal. After briefing in this matter concluded, Rapid brought to this court’s attention filings with the Securities and Exchange Commission that cast doubt on the accuracy of the Mayer Affidavit. In response, Peachtree admitted that the Mayer Affidavit is erroneous and that Peachtree does not, in fact, know the citizenship of all of its members at the time of removal. It admits that, despite diligent research, it is not able to determine the citizenship of all of the members of Settlement Funding, LLC, and Peachtree Settlement Funding, LLC, as it existed at the time that this case was removed from state court.

Accordingly, Peachtree has failed to. meet its burden to establish complete diversity of citizenship of all the parties at the time of removal. Indeed, by its own admission, it has renounced the argument that the parties were completely diverse at the time of removal.

To the underlying point of our analysis; Peachtree, by its own admission, has not met its burden to prove that there is complete diversity jurisdiction, and we therefore cannot say that we have jurisdiction over this case.

V.

We sum up: “Federal courts are courts of limited jurisdiction.” Howery, 243 F.3d at 916. “We must presume that a suit lies outside this limited jurisdiction, and the burden of establishing federal jurisdiction rests on the party seeking the federal forum.” Id. If the record does not contain sufficient evidence to show that subject matter jurisdiction exists, “a federal court does not have jurisdiction over the case.” Id. Courts adhere to these rules-“regardless of the costs it imposes.” Grupo Dataflux, 541 U.S. at 571, 124 S.Ct. 1920; see also Camsoft Data Sys., Inc. v. S. Elecs. Supply, Inc., 756 F.3d 327, 339 (5th Cir. 2014) (“[T]he so-called “waste’ of judicial resources that occurs when we dismiss a case for lack of jurisdiction is the price that we pay for federalism.”) (citations and quotations omitted).

For the reasons stated, we hold that there is no federal question jurisdiction because Rapid’s third-party complaint did not raise a federal question. We also hold that Peachtree has not met its burden of establishing complete diversity of the parties, and thus there is no diversity jurisdiction. Because there is neither federal question nor diversity jurisdiction, and thus no subject matter jurisdiction, we vacate the district court’s judgment and remand the case with directions to remand the case to the state court from which it was removed.

VACATED and REMANDED.

      . "Peachtree” collectively refers to the plaintiffs/appellants/cross-appellees: Settlement Funding) LLC; a related entity, Peachtree Settlement Funding, LLC; and an individual annuitant, Evelyn Franklin. "Rapid” collectively refers to the defendants/appellees/cross-appel-lants: Rapid Settlements, Limited; a related entity, Rapid Management Corporation; Stewart A. Feldman, an individual who owns and manages these companies; and another related entity, RSL Funding, LLC.

      . This court has previously described the structured settlement payment industry in greater detail. See Symetra Life Ins. Co. v. Rapid Settlements, Ltd., 775 F.3d 242, 245-46 (5th Cir. 2014).

      . Although Franklin was a New York resident, Peachtree sued Rapid, which is based in Texas, in Texas court.

      . This litigation has involved numerous amended, consolidated, and severed claims and suits relating to similar allegations of tortious conduct by Rapid.

      . "Wentworth Parties” collectively refers to J.G. Wentworth SSC LP; JGWPT Holdings, LLC; JLL Partners, Inc.; David Miller; and JG Wentworth Originations, LLC. Some of the Wentworth Parties appear to hold ownership stakes in the same entities that comprise Peachtree — Settlement Funding, LLC, and Peachtree Settlement Funding, LLC. In other words, at the risk of some oversimplification, the Wentworth Parties are members of Peach-tree. However, Rapid's claims against the Wentworth parties were distinct from its litigation with Peachtree.

      . The third-party claims were brought by RSL Funding, LLC.

      . The Wentworth Parties asserted that Rapid’s state law civil conspiracy claim, which alleged that the Wentworth Parties entered into improper agreements with other companies in the structured-settlement-purchasing business to refrain from interfering with their contracts, implicated federal antitrust law and thus raised a federal question.

      . The party’s claims were referred to a magistrate judge for all proceedings.

      . Because we are not satisfied that there is subject matter jurisdiction, we do not reach the merits of Peachtree's appeal.

      . Neither party has raised whether the Wentworth Parties, as third-party defendants, were entitled to remove the case at all pursuant to 28 U.S.C. § 1441, cf., e.g., First Nat. Bank of Pulaski v. Curry, 301 F.3d 456, 461-63 (6th Cir. 2002) ("[T]hird-party defendants do not have a statutory right of removal pursuant to § 1441(a).”), or whether they were entitled to remove the case six years after the commencement of the state court action, see 28 U.S.C. § 1446(c)(1) (“A case may not be removed ... on the basis of jurisdiction conferred by section 1332 [diversity jurisdiction] more than 1 year after commencement of the action.”).

      . In its Supplemental Jurisdictional Brief, Peachtree argues that in a joint case management plan Rapid admitted that it was pursuing a claim for federal antitrust violations. It stated that RSL Funding “seeks damages for alleged violations of federal antitrust law.” Whether a federal question arises, however, is determined from the face of the plaintiff's complaint, and no more. See Hart v. Bayer Corp., 199 F.3d 239, 244 (5th Cir. 2000) ("If, on its face, the plaintiff's complaint raises no issue of federal law, federal question jurisdiction is lacking.”); accord, e.g., R.I. Fishermen’s All., Inc. v. Rhode Island Dep’t Of Envtl. Mgmt., 585 F.3d 42, 48 (1st Cir. 2009) ("[T]he plaintiff’s well-pleaded complaint must exhibit, within its four comers, either an explicit federal cause of action or a state-law cause of action that contains an embedded question of federal law that is both substantial and disputed.”) (emphasis added). Regardless of its intentions, Rapid never amended its third-party complaint to reflect that it sought damages for violations of federal antitrust law. For the reasons stated, the third-party complaint does not, on its face, raise a federal question.

      . Recall that the Wentworth Parties were subsequently dismissed by settlement and are no longer parties to this litigation.

      . Peachtree admitted that it does not know the citizenship of every member of two entities, JLL Fund V AIF I, L.P. (“AIF I”) and JLL Fund V AIF II, L.P. (“AIF II"), which it in turn admitted are members of an entity called JLL JGW Distribution, LLC, which is, according to Mayer, an indirect member of both Settlement Funding, LLC, and Peachtree Settlement Funding, LLC. Peachtree also failed to describe the limited partner(s) of an entity called JLL Associates V, LP, which is also, according to Mayer, an indirect member of both Settlement Funding, LLC, and Peach-tree Settlement Funding, LLC.

      . Peachtree contends that although complete diversity was not established at the time of removal, the parties were indisputably diverse at the time of judgment as a result of corporate changes in their respective citizenship. Continuing, Peachtree further argues that diversity jurisdiction may be established based on the state of facts that existed at either the time of removal, or, as in this case, at the time of judgment; it cites Caterpillar Inc. v. Lewis, 519 U.S. 61, 117 S.Ct. 467, 136 L.Ed.2d 437 (1996), for the proposition that courts may look to diversity as it existed at the time of judgment if a party (as here, the Wentworth Parties) is dismissed by settlement during the course of the litigation. This argument is void of merit. The Supreme Court in Grupo expounded: "all challenges to subject-matter jurisdiction [are] premised upon diversity of citizenship against the state of facts that existed at the time of [removal] — whether the challenge be brought shortly after filing, after the trial, or even for the first time on appeal.” Grupo Dataflux v. Atlas Glob. Grp., L.P., 541 U.S. 567, 571, 124 S.Ct. 1920, 158 L.Ed.2d 866 (2004). It noted that Caterpillar reflected a single exception to the virtually inviolable rule because “the jurisdictional defect it addressed had been cured by the dismissal of the party that had destroyed diversity.” Id. Peachtree cannot argue that this case comes within this exception because it admits that it cannot show that the remaining parties were completely diverse at the time of removal.

      . Peachtree suggests, that, were we to remand this case to the district court for additional factfinding, it may be able to determine the citizenship of the entities whose citizenship as it existed at the time of removal is currently unknown. Peachtree and its parent company, the J.G. Wentworth Corporation, are sophisticated entities represented by a large, multinational law firm. Peachtree admitted in its supplemental brief filed on December 28, 2016, that "[d]espite expending considerable resources and diligently endeavoring to determine the constituency of [the unknown-citizenship entities at the time of removal], [Peachtree] cannot feasibly trace each investing entity back to a corporation or a natural person.” Peachtree has not, in the months since, supplemented the record or otherwise indicated that it has ascertained, or will be ever able to ascertain, the citizenship of those unknown-citizenship entities. Nor has it explained how remand will allow it to obtain information that is not currently available. Accordingly, remand to the district court for this purpose only forestalls the ultimate dismissal of the case as we have discussed above.

      . All pending motions are denied as moot.