author: . LESLIE H. SOUTHWICK, Circuit Judge: W. EUGENE DAVIS, Circuit Judge,

text:
    IN RE: In the Matter of the Complaint of LARRY DOIRON, INCORPORATED as Owner and Operator of the Barge Pogo and M/V Billy Joe for Exoneration from or Limitation of Liability Larry Doiron, Incorporated, Plaintiff-Appellee Robert Jackson, Intervenor Plaintiff-Appellee v. Specialty Rental Tools & Supply, L.L.P.; Oil States Energy Services, L.L.C.; Zurich American Insurance Company, Defendants-Appellants
    No. 16-30217
    United States Court of Appeals, Fifth Circuit.
    Filed February 23, 2017

      Clarence William Emory, Georges M. Legrand, Mouledoux, Bland, Legrand & Brackett, L.L.C., Alan David Ezkovich, Attorney, Aaron James Weidenhaft, Ezko-vich & Company, New Orleans, LA, for Plaintiff-Appellee and Intervenor Plaintiff-Appellee.
    Mark Lynn Clark, Robert Jeffrey Bridger, Esq., Thompson, Coe, Cousins & Irons, L.L.P., New Orleans, LA, for Defendants-Appellants.
    Before Í)AVIS, DENNIS, and SOUTHWICK, Circuit Judges.
   . LESLIE H. SOUTHWICK, Circuit Judge:

We are yet again required to determine whether a contract is a maritime one. Here, the focus is on a contract to perform flow-back services to improve the performance of an offshore natural-gas well when performance eventually required the use of a crane barge. Plaintiffs Larry Doiron, Inc. and Robert Jackson argue that maritime law applies. Defendants Specialty Rental Tools & Supply, Oil States Energy Services, and Zurich American Insurance Company (collectively, “STS”) argue that state law, specifically that of Louisiana, applies. The district court determined the contract was maritime in nature. We conclude the question is close but agree that the specific contract at issue, which was an oral work order in effect at the time of injury, should be considered maritime. AFFIRMED.

FACTUAL AND PROCEDURAL BACKGROUND

On October 12, 2005, Apache Corporation and STS entered into a master services contract (“MSC”). The MSC does not describe individual tasks but operates as a “broadform blanket agreement” that contemplates future tasks to be performed under subsequent work orders to be agreed upon as necessary. The MSC contains an indemnification provision that requires STS to defend and indemnify Apache and its “Company Group” against all claims for property damage or bodily injury. On appeal, the parties do not dispute that Larry Doiron, Inc. (“LDI”) and Jackson are part of Apache’s Company Group and are covered by the terms of the MSC.

In early 2011, Apache hired Specialty Rental Tools & Supply (“STS”) to perform flow-back services on its offshore well, located in West Lake Verret in the Atchafa-laya Basin. The flow-back process is designed to dislodge solid objects from inside the well to “get it to produce gas again.” The work was to be performed on Apache’s fixed production platform. The flow-back services were arranged by an oral work order; neither party produced a written agreement for these particular services.

On February 24, 2011, STS sent its employees Peter Savoie and Matt Delahous-saye to perform the flow-back operation. After being unsuccessful that day, Savoie informed Brandon LePretre, Apache’s representative, that STS would need additional equipment to perform the operation, including a flow-back iron, a hydraulic choke manifold, and a hydraulic gate valve. In Savoie’s estimation, STS would also need a crane barge because the additional equipment was too heavy for the workers to remove from the wellhead. LePretre contacted VAS Gauging, Inc., which arranged for LDI to provide the crane barge POGO for use at the Apache well. Robert Jackson was the crane operator. LePretre testified that he knew LDI owned the barge and that it was used at the well site with Apache’s consent.

On the second day of the flow-back operation, Savoie and Delahoussaye were again unsuccessful, even with use of the crane. Savoie informed LePretre that he needed a coiled tubing unit, so they terminated the operation until one could be obtained. Sa-voie began “rigging down” and directed Jackson to lower the crane. Instead, Sa-voie reported the crane came toward him and “knocked [him] off balance.” He-clutched the crane to avoid falling backward but eventually lost his grip, which caused him to fall approximately eight feet onto the deck of the barge. His accident resulted in “a crush type injury to the right lower extremity.”

Later that year, LDI made a formal demand that STS defend and indemnify LDI against any claims Savoie may bring. STS rejected the demand. LDI then filed a Vessel Owner Limitation Action for exoneration from liability on the basis of admiralty jurisdiction under 46 U.S.C. §§ 30501-30512. Savoie answered the complaint, alleging he was injured by LDI’s negligence and through no fault of his own. LDI then filed a third-party complaint against STS and its affiliates. Jackson intervened in the Vessel Owner Limitation Action, seeking protection under the MSC and the insurance policy issued by Zurich. STS ultimately settled with Savoie, and the district court severed the indemnity claims from the personal-injury case.

LDI and Jackson filed a motion for summary judgment to “enforce their contractual right to defense and indemnity.” LDI and Jackson argued the MSC obligated STS to indemnify LDI and Jackson against Savoie’s claims. In response, STS filed a cross-motion for summary judgment, arguing that the MSC “must be construed under Louisiana law and that the indemnity provision contained therein is void and unenforceable under the Louisiana Oilfield Indemnity Act.” The district court granted the motion submitted by LDI and Jackson and denied the cross-motion submitted by STS.

Thereafter, the parties filed a joint motion to dismiss the claims not resolved by summary judgment and for entry of final judgment on the others. The parties reserved the right to appeal “the limited issue of whether Defendants were contractually obligated to defend and indemnify Plaintiffs.... ” The court granted the motion and entered final judgment on March 10, 2016. STS filed a timely notice of appeal.

DISCUSSION

We review de novo the district court’s grant of summary judgment. James v. State Farm Mut. Auto. Ins. Co., 743 F.3d 65, 68 (5th Cir. 2014). Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine dispute exists if a reasonable jury could find in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). All facts and evidence are viewed in the light most favorable to the non-movant. James, 743 F.3d at 68.

The issue here is whether maritime or state law should be applied to determine the validity of the MSC’s indemnity clause. The MSC contains a choice-of-law provision:

This contract shall be construed and enforced in accordance with the general maritime law of the United States whenever any performance is contemplated in, on or above navigable waters, whether onshore or offshore. In the event that maritime law is held inapplicable, the law of the state in which the work is performed shall apply.

The district court correctly analyzed the conflict as being one between Louisiana state law and general maritime principles. The Louisiana Oilfield Indemnity Act provides that indemnity clauses in “agreements pertaining to wells for oil, gas, or water” are void as violations of public policy. La. Rev. Stat. § 9:2780. Maritime law “does not bar enforcement of [those] provisions.” Hoda v. Rowan Cos., 419 F.3d 379, 380 (5th Cir. 2005). There are, though, no “clean lines between maritime and non-maritime contracts.” See Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14, 125 S.Ct. 385, 393, 160 L.Ed.2d 283 (2004).

We articulated the legal framework for deciding eases like this in Davis & Sons, Inc. v. Gulf Oil Corp., 919 F.2d 313 (5th Cir. 1990). Distinguishing between maritime and non-maritime contracts “turns on a minute parsing of the facts,” but we are bound by the Davis approach — however inexact it may be. Hoda, 419 F.3d at 380-81. In Davis, the parties entered a Master Service Agreement under which Gulf Oil would issue work orders directing Davis to perform specific tasks related to its natural-gas and crude-oil wells. Davis, 919 F.2d at 314. The agreement contained an indemnity clause requiring Davis to indemnify Gulf Oil against any claims that may arise out of their relationship. Id. Under the work order at issue, Davis supplied land-based barges to perform routine maintenance on the wells. Id. The work platforms around the wells did not provide adequate workspace, so most of the work was done on the barge itself. Id.

On the day of the accident in Davis, the barge employee supervising the operation drowned. Id. His representatives sued both Davis and Gulf Oil, and the parties settled. Id. at 315. Davis sought a declaratory judgment that Louisiana law governed the contract and that the indemnity provision was therefore void. Id. Gulf Oil argued that maritime law applied to validate the indemnity provision. Id. The district court applied Louisiana law. Id.

On appeal, we held that when a contract involves two parts — “a blanket contract followed by later work orders” — the two must be interpreted together to determine whether maritime or state law applies. Id. We then articulated a two-part analysis. Id. at 316. First, we determine the nature of the contract by reference to its historical treatment. Id. If the historical treatment is unclear, we must consider six factors:

1) [W]hat does the specific work order in effect at the time of injury provide? 2) [W]hat work did the crew assigned under the work order actually do? 3) [W]as the crew assigned to work aboard a vessel in navigable waters!?] 4) [T]o what extent did the work being done relate to the mission of that vessel? 5) [W]hat was the principal work of the injured worker? and 6) [W]hat work was the injured worker actually doing at the time of injury?

Id., see also Hoda, 419 F.3d at 381. In Davis, the work being performed was not historically maritime in nature. Davis, 919 F.2d at 316. Nonetheless, an analysis of the factors revealed “[t]he work done by the crew of Barge 11171 was inextricably intertwined with maritime activities since it required the use of a vessel and its crew.” Id. at 317.

Applying Davis, we find no clarity to the historical treatment of contracts like because this court has not previously considered flow-back operations. We have found contracts for the provision of wireline services to be non-maritime. See, e.g., Domingue v. Ocean Drilling & Expl. Co., 923 F.2d 393, 397-98 (5th Cir. 1991); Thurmond v. Delta Well Surveyors, 836 F.2d 952, 956 (5th Cir. 1988). Wireline services include providing maintenance for partially drilled oil and gas wells and gathering “geophysical data relevant to production.” Domingue, 923 F.2d at 394 n.3. On the other hand, contracts for casing services are maritime in nature. See, e.g., Demette v. Falcon Drilling Co., 280 F.3d 492, 500 (5th Cir. 2002), overruled on other grounds by Grand Isle Shipyard, Inc. v. Seacor Marine, LLC, 589 F.3d 778, 787 (5th Cir. 2009) (en banc); Campbell v. Sonat Offshore Drilling, Inc., 979 F.2d 1115, 1123-24 (5th Cir. 1992). Casing is “the welding together and hammering of pipe into the subsurface of the earth to create a permanent construction.” Campbell, 979 F.2d at 1118 n.2. One distinction between the two is that wireline services often do not require the use of a vessel; casing services do. Compare Thurmond, 836 F.2d at 956, with Campbell, 979 F.2d at 1123. Whether that distinction was sufficient to cause the different outcomes is unclear.

We now examine flow-back operations to see if they are comparable either to wire-line operations or to casing services. When providing flow-back services, employees use whatever equipment is necessary to clear the well for the resumption of production. The services themselves may be performed exclusively on the well platform or may, as here, require a vessel to be alongside the well. The district court was likely correct that “flow back services have little to do with traditional maritime activity or commerce.” Even if flow-back services in the main are not maritime, this is not a sufficient answer under Davis. Because the historical treatment is unclear, we cannot rely on a generic view of the work; instead, we must consider the circumstances surrounding the injury. See Devon Louisiana Corp. v. Petra Consultants, Inc., 247 Fed.Appx. 539, 544 (5th Cir. 2007) (unpublished).

Under Davis, no single factor is disposi-tive. We find that four of the six factors— one, two, four, and six — indicate this contract is maritime in nature. The first factor concerns the specific work order in effect at the time of the injury. Davis, 919 F.2d at 316. Neither party can produce a written document to establish what the parties contemplated when this particular agreement arose. The MSC references vessels by requiring insurance coverage when the “contractor uses any vessels in connection with its work for Company or Company Group.” While this factor concerns the specific work order and not the MSC, the language of the MSC indicates the parties at least contemplated the use of a vessel during the operations for which Apache would employ STS. Imposing a maritime obligation would not cause unfair surprise.

The second factor examines the work the crew assigned under the work order actually performed. Id. The STS crew performed a flow-back operation, which is not primarily maritime. In fact, however, Sa-voie and Delahoussaye relied on the crane barge to execute the flow-back operation, and Savoie was injured as a result of its use. The district court noted that the operation “could not have been completed without the use of a crane barge.... ” We agree. STS claims the barge was ancillary to the flow-back operation, but the presence of the barge was a necessary predicate to Savoie’s using the hydraulic gate valve.

The fourth factor concerns the extent to which the work being done related to the mission of the vessel. Id. The barge was sent to Apache’s well site to serve STS in the execution of its flow-back job. STS notes that the barge was forced to move •away from the well during the flow-back process to avoid safety concerns raised by having an ignition source near a gas well. Despite its physical location at the time of the operation, though, the barge was still tasked with assisting STS in its execution of the flow-back operation.

The sixth factor concerns what the injured worker was doing at the time of his injury. Id. Savoie, at the time of injury, was preparing to disconnect the hydraulic gate valve from the crane. During “rigging down,” Savoie clutched the crane itself and fell onto the deck of the barge when he lost his grip. Thus, Savoie was injured by equipment affixed to the vessel itself.

Only the third and fifth factors militate against applying maritime law. The third factor concerns whether the crew was assigned to work aboard a vessel in navigable waters. Id. Neither Savoie nor Dela-houssaye was assigned to work aboard the crane barge. Still, Savoie made use of the barge by loading and unloading equipment from its deck, conducting safety meetings-on board the vessel, and using the crane to install large equipment on the platform. The fifth factor concerns the principal work of the injured person. Id. At the time of his injury, Savoie was principally employed to perform the flow-back operation at issue; he was not commissioned to be a seaman. Yet Savoie need not be a sailor to give this work order a “peculiarly salty flavor.” See Thurmond, 836 F.2d at 953, 956.

Some of the cases that have applied Davis assist us in our analysis. The gravamen of our inquiry is not whether the contract required use of a vessel but whether the execution of the contract required a vessel. Demette, 280 F.3d at 500-01. STS correctly notes that “incidental or preparatory use of a vessel” is not sufficient to render a contract maritime in nature. On the other hand, when the work is “inextricably intertwined with maritime activities,” the contract will be maritime. Davis, 919 F.2d at 317.

We find useful similarities between this case and Campbell, where a worker performing casing services was injured when transferring from one vessel to another. See Campbell, 979 F.2d at 1122-23. First, neither this operation nor the operation in Campbell was intrinsically maritime; both may have been performed on a fixed surface instead of a vessel. Second, a vessel at some point became necessary to execute the operations in both cases. Also, both Savoie and the injured worker in Campbell suffered their injuries while transferring to a vessel that had been used during the operation. Finally, and most importantly, the vessel’s equipment was used to accomplish the relevant task both here and in Campbell. Given the similarities, Savoie’s work, like the work in Campbell, was “inextricably intertwined with maritime activities. ...” See id. at 1123 (quoting Davis, 919 F.2d at 317).

We also find similarities between this case and Hoda, where a worker was injured while working aboard a vessel. See Hoda, 419 F.3d at 380. His primary job under that work order was to tighten the nuts on a blow-out preventer on the wellhead. Id. at 381. The operation was performed using a crane aboard the vessel because there was no well platform. Id. In this case, Apache had a fixed well platform from which the flow-back operation could have been executed. Regardless, the existence of the fixed platform is immaterial because the use of a vessel eventually became necessary to manipulate the heavy equipment used during the operation. Like the injured worker in Hoda, Savoie would “have had nothing to do” had LDI not provided the crane barge. See id. Savoie’s work depended on the barge’s direct involvement, which strongly indicates a maritime contract. See id. at 383

Devon, an unpublished case from this court, is also analogous. There, the worker was injured aboard a vessel during inclement weather. Devon, 247 Fed.Appx. at 541-42. At the time of his injury, he was working to repair an offshore well, and the operation required use of welding equipment. Id. Prior to the operation, the workers failed to secure a “hot work” permit, which precluded performance of welding operations on the well platform. Id. at 541. Thus, the welding equipment remained on the vessel, and the procedures were performed on the vessel itself. Id. On appeal, we decided the contract was maritime in nature because the work at issue required the vessel’s direct involvement. Id. at 544-45. We noted that,' but for the employees’ failure to secure a permit, the work could have been performed on a fixed platform. Id. at 545. It was fair to say, then, that the operation in fact required a vessel. Id. This case is similar. Although Apache had a fixed production platform from which the work could have been done, Savoie relied on the crane barge to perform the job when he realized he could not manipulate the heavy equipment alone. This should thus be seen as a maritime operation.

STS relies on Thurmond and Domingue to support its position. In Thurmond, decided before Davis, Gulf Oil contracted with P & S Well Services for a barge bearing equipment for the performance of wireline services. Thurmond, 836 F.2d at 958. Thurmond, a member of the barge’s crew, was injured when he “stepped off the barge and on the wellhead[.]” Id. We held the contract to be nonmaritime, noting that Thurmond was “not engaged in the performance of a maritime obligation” at the time of his injury. Id. at 955. We also found significant that the parties’ contract did not address the use of a vessel. Id. In Domingue, also concerning wireline services, the injured worker tripped over a piece of equipment the vessel’s crew had placed on the well platform. Domingue, 923 F.2d at 394. We held that the vessel was “incidental ... [to] the execution of [the] particular service contract.” Id. at 397.

Thurmond and Domingue have been distinguished by this court under circumstances similar to this case. See, e.g., Campbell, 979 F.2d at 1122; Davis, 919 F.2d at 316. Neither wireline nor flow-back services are themselves maritime activities. The flow-back services in this case, though, could not have been completed without a vessel that was more than ancillary to the operation. Also, Savoie was not injured as a result of the flow-back operation but because of Jackson’s operation of the crane, which was affixed to the vessel. Both workers in Thurmond and Domingue were' on the well platform at the time of injury, but Savoie clutched the crane and fell onto the deck of the barge.

Further, unlike the contract in Thurmond, the MSC contemplated the use of a vessel, showing that both Apache and STS recognized a vessel could be necessary to the performance of its future work orders. The contract does not mention the crane barge specifically, but the MSC . was a blanket agreement that did not create present obligations. Instead* it required STS to accommodate Apache’s work orders at unspecified future dates. In addition, “the Davis factors must be applied to the facts as they actually occurred” and not “as the parties intended them” to occur. See Devon, 247 Fed.Appx. at 545. Even if the parties did not expect a vessel would be used during the flow-back operation, one was.

STS also relies on one of our recent nonprecedential decisions, Riverside Construction Company, Inc. v. Entergy Mississippi, Inc., 626 Fed.Appx. 443 (5th Cir. 2015). We analyzed a repair contract for Entergy’s Dolphin Fender System located on a fuel dock in the Mississippi River. Id. at 444. Entergy removed the suit to federal court, arguing the contract was maritime because it “contemplated that [the] work would be performed from a floating barge....” Id. at 445. We found that federal law did not apply and that removal was improper because the barge, which remained tethered to a bank during the operation, was merely used as a platform from which the work could be done — making it “auxiliary to the actual purpose of the contract[.]” Id. at 446.

Riverside is not factually analogous. No' evidence exists to suggest the barge in this case remained tethered to a bank during the operation. Instead, it was close enough to the well platform — “located on navigable waters in West Lake Verret” — to permit the crane to access the wellhead..

STS also argues there is no basis for applying federal law to claims arising in Louisiana territorial waters, especially considering that state law applies to claims arising on the Outer Continental Shelf. The Outer Continental Shelf Lands Act extends the law of the adjacent state to the “subsoil and seabed” off its coast. 43 U.S.C. § 1333(a)(1). The adjacent state’s law, though, is incorporated into federal law and “does not supplant admiralty and maritime law.” Robert Force & Martin J. Norris, The Law of Maritime Personal Injuries § 3:15 (2016). Accordingly, once we determine the contract * maritime, state law is irrelevant even on the Outer Continental Shelf. The policy of applying the law of the situs may seem appealing, but doing so would disrupt the “twin aims of maritime law”: “achieving uniformity in the exercise of admiralty jurisdiction and providing special solicitude to seamen.” Miles v. Melrose, 882 F.2d 976, 987 (5th Cir. 1989).

Finally, STS argues that “LDI’s maritime tort is irrelevant to STS’s contract.” STS implies that Savoie’s injury as a result of the barge is maritime, while the contract governing Apache’s relationship with

STS is not. In support, it notes that the personal injury lawsuit has been severed from this action, leaving us no tort issues to decide. As a result, it argues that LDI and Jackson are “attempting] to cloud the nature and character of the [MSC] by emphasizing LDI’s own maritime tort against Mr. Savoie.” Peeling the maritime tort away from an ostensibly non-maritime contract is imaginative enough, but it is inconsistent with our prior treatment of analogous situations. The fact that Savoie brought an action in tort has no effect on our interpretation of the choice-of-law provision or our analysis of the relevant facts. The tort suit also has no bearing on the application of the indemnity provision, which is the direct subject of this appeal. In fact, the tort suit only bears passing relevance because LDI and Jackson would not be seeking indemnification otherwise. We recognize the basic distinction between tort and contract claims, but that distinction is immaterial here because our outcome holds regardless of the doctrinal lens through which the facts are viewed.

Our holding is confined to the facts before us. See Hoda, 419 F.3d at 383.

We conclude that the oral work order is the relevant contract and that it is a maritime contract. The district court did not err by determining maritime law applies. AFFIRMED.

W. EUGENE DAVIS, Circuit Judge,

Special Concurrence, joined by LESLIE H. SOUTHWICK.

I concur in Judge Southwick’s careful opinion which faithfully follows our precedent in Davis & Sons and its progeny. I write separately to urge the court to take this case en banc and simplify the test for determining whether a contract is a maritime contract.

The multi-factor test in Davis & Sons, as set out in the majority opinion, has been criticized by a number of judges of this court: in Hoda v. Rowan Cos., Judge Jones began the opinion by stating:

This appeal requires us to sort once more through the authorities distinguishing maritime and non-maritime contracts in the offshore exploration and production industry. As is typical, the final result turns on a minute parsing of the facts. Whether this is the soundest jurisprudential approach may be doubted, inasmuch as it creates uncertainty, spawns litigation, and hinders the rational calculation of costs and risks by companies participating in this industry. Nevertheless, we are bound by the approach this court has followed for more than two decades.

In Thurmond, Judge Garwood concurred in the opinion holding that a contract to provide wireline services that required use of a vessel was not a maritime contract. In his concurring opinion, however, he stated, “I am generally in agreement with Judge Wisdom’s persuasive opinion, but am troubled by the tension, or perhaps outright inconsistency, between many of our opinions in this area.” And later,

However, it seems to me that it may be desirable to consider this issue en banc, in order that we may take a more consistent approach to the question of whether and in what circumstances activities in connection with mineral development in state territorial waters are maritime (or perhaps- “maritime and local”).

Professor David W. Robertson, in his article, pointed out some of the flaws in the Davis & Sons test:

The “historical treatment” reference does no more than remind courts and counsel to look for close analogies in the jurisprudence. This is what courts must always do when there is no clear governing general rule or principle. The six factors are too pointillistic: they have led Fifth Circuit panels down such odd lines of thought as “whether drilling mud services are more akin to wireline work [which has sometimes been viewed as quintessentially nonmaritime] or to casing services [which can be maritime if done on a vessel-type drilling rig.]”

One problem with the multi-factor test in Davis & Sons is the lack of guidance about what weight to give each factor. A number of our cases seem to give the most weight to the Davis & Sons prong that requires examination of the precise work to be performed, e.g., wireline service, welding, casing service, or drilling. Most of our cases hold that a contract to provide any of these services on a vessel on navigable waters is a maritime contract, but panels have held that contracts to provide wireline services are non-maritime in nature whether the contractor contemplates that the services are to be performed from a vessel or not. On the other hand, we have held that contracts to perform casing services are maritime because of the nature of casing work.

A 2004 Supreme Court case, Norfolk Southern Railway Co. v. Kirby, supports my view that the en banc court should abandon the Davis & Sons test. In Kirby, the Court was called upon to determine whether a bill of lading for a shipment of goods by sea from Australia to Charleston, South Carolina, then by rail to Huntsville, Alabama was a maritime contract. The goods were damaged in a train wreck during the land leg of the trip and the question was whether the suit to recover damages for property that was damaged on this leg of the trip fell within admiralty jurisdiction. The Court concluded that both the land and water portions of the bills of lading constituted maritime contracts because their primary objective was to accomplish the transportation of goods by sea from Australia to the eastern coast of the United States. Although the facts of this case are not closely analogous to those in today’s case, the Court provided important guidance to assist us in determining whether a contract is a maritime contract:

To ascertain whether a contract is a maritime one, we cannot look to whether a ship or other vessel was involved in the dispute, as we would in a putative maritime tort case.... Nor can we simply look to the place of the contract’s formation or performance. Instead, the answer “depends upon ... the nature and character of the contract,” and the true criterion is whether it has “reference to maritime service or maritime transactions.”

And further “the fundamental interest giving rise to maritime jurisdiction is the protection of maritime commerce.”

Thus, in determining whether a contract being sued upon is a maritime contract, we should use contract principles rather than tort principles: We look to “the nature and character of the contract,” “whether it has ‘reference to maritime service or maritime transaction.’ ” The Court called for a conceptual approach to the inquiry and the focus of the inquiry is the protection of maritime commerce.

The six-prong test in Davis & Sons for determining whether the contract being sued upon is a maritime contract includes two prongs that are appropriate in a contract case: (1) what does the work order provide and (2) was the work to be performed on navigable water. The remaining factors are more appropriate in analyzing whether maritime tort jurisdiction can be exercised. In Grand Isle Shipyard, the en banc court encountered a similar question.

In that case, another action to recover indemnity under a contract, we were faced with identifying the “situs of the controversy” under the Outer Continental Shelf Lands Act (“OCSLA”). If the situs was the Outer Continental Shelf (“OCS”), state law (Louisiana) applied and the indemnity agreement was unenforceable because of the Louisiana Oilfield Indemnity Act. We overruled a number of our cases applying tort principles that held that the situs of the controversy for purposes of the OCS-LA was the place of injury. In Grand Isle Shipyard, the injury occurred on a vessel and the appellant argued that this was the situs of the controversy. We disagreed and concluded that we should apply contract principles and determine where the majority of the work was to be performed under the contract. Because most of the work contemplated under the contract was on stationary platforms on the OCS, we concluded that this location was the focus of the contract and the situs of the controversy. This resulted in the application of state law as required under OCSLA.

The same reasoning applies here. This is a suit on a contract for indemnity. We look to the blanket contract and the verbal work order for the nature and character of the contract; that is, what was the work STS was engaged to do on the well in West Lake Verret in the state of Louisiana. The answer is clear: they were engaged to work downhole from a stationary platform to dislodge downhole obstructions and get the gas well back on production. The contract did not call for any work on a vessel.

As it turned out, an unexpected problem developed that required a vessel equipped with a crane to complete the job. Apache engaged another party, LDI, to provide the vessel and crew for this work.

Considering all of the above, what is an appropriate test for determining whether a contract to provide oilfield services is maritime or non-maritime? Based on the Supreme Court’s opinion in Kirby, our opinion in Grand Isle Shipyard, and the weight of our decisions -in this area, I would substitute the following test for determining whether a contract for services to facilitate the drilling or production of oil and gas on state waters or the OCS is a maritime contract.

So long as a contract’s primary purpose is to provide services to promote or assist in oil or gas drilling or production on navigable waters aboard a vessel, it is a maritime contract. Its character as a maritime contract is not defeated simply because the contract calls for incidental or insubstantial work unrelated to the use of a vessel.

Under this test, a contract or work order to provide specialized services to promote the drilling and production of an oil or gas well from a vessel should be considered a maritime contract. If such a contract also provides for work on land or platforms that is incidental to the work on vessels or insubstantial in relation to the vessel-related work, this does not defeat the character of the contract as a maritime contract. Under this test and consistent with most of our cases, specialized services to promote drilling or production of oil or gas to be performed solely from a stationary platform should not be considered a maritime contract.

Our cases have consistently held that oil and gas drilling on navigable waters from a vessel is considered maritime commerce. It follows that other services performed on a vessel in navigable waters to facilitate the drilling and production of oil and gas constitutes maritime commercé. Determining whether the contract is maritime should not depend on the nature of the particular oilfield services contracted for.

Applying this test to today’s case, the verbal Apache work order called for STS to perform downhole work from a stationary platform to clear an obstruction in a gas well and get it back on production. This downhole work on a stationary platform has no maritime or “salty” flavor that would qualify it as a maritime contract.

The fact that during the course of performing the work from the platform, a problem was encountered that required Apache to engage a vessel with a crane to assist in the job, does not alter the nature of Apache’s contract with STS even though the STS crew performed incidental work to assist in connecting the vessel’s crane to a load to be lifted.

CONCLUSION

It is time to abandon the Davis & Sons test for determining whether or not a contract is a maritime contract. The test relies more on tort principles than contract principles to decide a contract case. It is too flexible to allow parties or their attorneys to predict whether a court will decide if a contract is maritime or non-maritime or for judges to decide the eases consistently. The Supreme Court’s decision in Kirby reinforces this conclusion. Just as important, the above test will allow all parties to the contract to more accurately allocate risks and determine their insurance needs more reliably.

      . The MSC provides: Apache "may, from time to time, request Contractor [STS] to perform work or render services hereunder ('Work') including but not limited to the following types of services: Chemicals, Equipment Rental.”

      . Before the district court, STS argued that VAS Gauging, Inc.' — and not Apache — contacted LDI to procure the crane barge. As such, it argues, LDI was not in contractual privity with Apache, so "STS would not owe LDI and Mr. Jackson defense and indemnity even if the general maritime law is held to apply to the MSC.” Neither party briefed this issue on appeal, so we need not address it here. See United States v. Martinez, 263 F.3d 436, 438 (5th Cir. 2001).

      .We have previously recognized that a barge is a vessel if it is "equipped for use in navigable waters, ha[s] traveled a considerable distance through such waters to its present site and was, at the time of the accident, located in a navigable canal.” Producers Drilling Co. v. Gray, 361 F.2d 432, 437 (5th Cir. 1966). Neither party disputes that the POGO qualifies as a vessel, so we do not engage in any analysis of the barge's classification.

      . STS states neither Savoie nor Delahoussaye boarded the barge. Delahoussaye testified that no one from STS went onto the barge "during the actual flow back services” but made no representations as to whether he had boarded the barge at other times. The district court found that STS personnel had, at minimum, conducted safety meetings alongside the barge’s crew.

      . Davis & Sons, Inc. v. Gulf Oil Corp., 919 F.2d 313 (5th Cir. 1990).

      . The six factors are:
      (1) [W]hat does the specific work order in effect at the time of the injury provide? (2) [W]hat work did the crew assigned under the work order actually do? (3) [W]as the crew assigned to work aboard a vessel in navigable waters? (4) [T]o what extent did the work being done relate to the mission of that vessel? (5) [W]hat was the principal work of the injured worker? and (6)[W]hat work was the injured worker actually doing at the time of injury? Id. at 316.

      . 419 F.3d 379 (5th Cir. 2005) (concerning an indemnity claim on a contract to install a blowout preventer from a jack-up drilling rig).

      . Thurmond v. Delta Well Surveyors, 836 F.2d 952 (5th Cir. 1988).

      . Id. at 957 (Garwood, J., concurring).

      . Id. (citing Kossick v. United Fruit Co., 365 U.S. 731, 738, 81 S.Ct. 886, 6 L.Ed.2d 56 (1960)).

      . For a more detailed criticism of the Davis & Sons test, see David W. Robertson, The Outer Continental Shelf Lands Act’s Provisions oh Jurisdiction, Remedies, and Choice of Law: Correcting the Fifth Circuit’s Mistakes, 38 J. Mar. L. & Com. 487, 540-45 (2007).

      . Id. at 545 (alteration in Robertson).

      . See Hollier v. Union Tex. Petroleum Corp., 972 F.2d 662, 665 (5th Cir. 1992) (holding that a contract for well testing on fixed platforms on the OCS is non-maritime); Domingue v. Ocean Drilling & Expl. Co., 923 F.2d 393, 397-98 (5th Cir. 1991) (holding that a contract to provide wireline services to a jack-up rig operating on the OCS off the coast of Louisiana is nonmaritime); Thurmond, 836 F.2d at 956-57 (holding that a contract to provide wireline services to a fixed platform in Louisiana state waters is non-maritime).

      . See Demette v. Falcon Drilling Co., 280 F.3d 492, 501 (5th Cir. 2002) (finding that because casing work "is an integral part of drilling,” which is a "the primary purpose of the vessel” a contract for casing services is maritime); Campbell v. Sonat Offshore Drilling, Inc., 979 F.2d 1115, 1121 (5th Cir. 1992) (holding that a contract to provide casing services is maritime); Corbitt v. Diamond M. Drilling Co., 654 F.2d 329, 332 (5th Cir. 1981) (finding that circuit precedent compels the conclusion that a contract for casing services is maritime); see also Kenneth G. Engerrand, Primer of Remedies on the Outer Continental Shelf, 4 Loy. Mar. L.J. 19, 61-63 (2005) (noting that historically, some services contracts are considered maritime in nature, including drilling and workover, casing, catering, repair, and well-site supervision, while other services contracts are traditionally non-maritime in nature, including wireline work, testing and completion operations).

      . 543 U.S. 14, 125 S.Ct. 385, 160 L.Ed.2d 283 (2004).

      . Id. at 18-19, 125 S.Ct. 385.

      . Id. at 21-22, 125 S.Ct. 385.

      . Id. at 24, 125 S.Ct. 385.

      . Id. (second alteration in original) (quoting N. Pac. S.S. Co v. Hall Bros. Marine Ry. &

        Shipbuilding Co., 249 U.S. 119, 125, 39 S.Ct. 221, 63 L.Ed. 510 (1919) (citing Ins. Co v. Dunham, 78 U.S. 1, 16, 11 Wall. 1, 20 L.Ed. 90 (1870))); see also Exxon Corp. v. Cent. Gulf Lines, Inc., 500 U.S. 603, 611, 111 S.Ct. 2071, 114 L.Ed.2d 649 (1991) ("[T]he trend in modern admiralty case law ... is to focus the jurisdictional inquiry upon whether the nature of the transaction was maritime.”).

      . Id. at 25, 125 S.Ct. 385 (emphasis removed) (internal quotation marks omitted) (quoting Exxon, 500 U.S. at 608, 111 S.Ct. 2071 (quoting Sisson v. Ruby, 497 U.S. 358, 367, 110 S.Ct. 2892, 111 L.Ed.2d 292 (1990), in turn quoting Foremost Ins. Co. v. Richardson, 457 U.S. 668, 674, 102 S.Ct. 2654, 73 L.Ed.2d 300 (1982))).

      . Id. at 24-25, 125 S.Ct. 385.

      . Id. at 25, 125 S.Ct. 385.

      . Grand Isle Shipyard, Inc. v. Seacor Marine, LLC, 589 F.3d 778 (5th Cir. 2009) (en banc).

      . Id. at 781.

      . Id.

      . Id. at 787-88 (overruling Diamond Offshore Co. v. A&B Builders, Inc., 302 F.3d 531, 546 (5th Cir. 2002); Demette, 280 F.3d at 500; Hodgen v. Forest Oil Corp., 87 F.3d 1512, 1527 (5th Cir. 1996); Smith v. Penrod Drilling Corp., 960 F.2d 456, 459 (5th Cir. 1992); and Hollier, 972 F.2d at 664).

      . Id. at 781-82.

      . Id. at 787.

      . Id. at 787-88; see also Robert Force & Martin J. Norris, The Law of Maritime Personal Injuries § 13:9 (2016) (discussing cases applying the rule emanating from Grand Isle Shipyard).

      . Id. at 789.

      . Professor Robertson recommends a similar test, see Robertson, supra note 7 at 548.

      . Theriot v. Bay Drilling Corp., 783 F.2d 527, 538-39 (5th. Cir. 1986) ("Oil and gas drilling on navigable waters aboard a vessel is recognized to be maritime commerce."); Pippen v. Shell Oil Co., 661 F.2d 378, 384 (5th Cir. 1981) ("[0]ffshore drilling the discovery, recovery, and sale of oil and natural gas from the sea bottom is maritime commerce....”).


source: Caselaw Access Project

author: JAMES L. DENNIS, Circuit Judge:

license: Public Domain

text:
    JEFFERSON COMMUNITY HEALTH CARE CENTERS, INCORPORATED, Plaintiff-Appellee v. JEFFERSON PARISH GOVERNMENT; Jefferson Parish Council; Ricky J. Templet, personally and in his official capacity as District 1 Parish Council member; Paul D. Johnston, personally and in his official capacity as District 2 Parish Council member; Mark D. Spears, personally and in his official capacity as District 3 Parish Council member; E. Ben Zahn, III, personally and in his official capacity as District 4 Parish Council, member; Jennifer Van Vrancken, personally and in her official capacity as District 5 Parish Council member; Christopher L. Roberts, personally and in his official capacity as At-Large Division A Parish Council member; Cynthia Lee-Sheng, personally and in her official capacity as Chairwoman and Councilwoman-at-Large Division B Parish Council, Defendants-Appellants
    No. 16-30875
    United States Court of Appeals, Fifth Circuit.
    Filed February 24, 2017

      Matthew Sidney Freedus, Esq., David Alan Bender, Jonay Foster Holkins, Feldesman Tucker Leifer Fidell, L.L.P., Washington, DC, Robert T. Garrity, Jr., Law Office of Robert T. Garrity, Jr., Hara-han, LA, for Plaintiff-Appellee.
    James M. Garner, Esq., Thomas Paul Anzelmo, Jr., Joshua Paul Clayton, Debra Jean Fischman, Esq., Sher Garner Cahill Richter Klein & Hilbert, L.L.C., New Orleans, LA, for Defendants-Appellants.
    Before STEWART, Chief Judge, and SMITH and DENNIS, Circuit Judges.
   JAMES L. DENNIS, Circuit Judge:

This appeal concerns a preliminary injunction in Jefferson Community Health Care Centers, Inc.’s (JCHCC) action against the Parish of Jefferson, Louisiana, the parish council, and its councilmembers in their official and individual capacities (collectively referred to as the “Parish” unless otherwise noted). In the underlying action, JCHCC seeks to permanently enjoin the Parish from evicting it from two Parish-owned facilities in which JCHCC currently provides medical services to medically underserved populations. JCHCC claims that the Parish wishes to evict it solely because JCHCC did not allow one of the councilmembers to unlawfully influence JCHCC’s affairs. The district court granted JCHCC’s motion for a preliminary injunction, enjoining the Parish from evicting JCHCC but allowing it to terminate the injunction by establishing that the medical needs of the population currently served by the relevant JCHCC facilities would be met if JCHCC were evicted. The Parish appeals, challenging both the issuance of the injunction and, alternatively, its contents and scope, For the reasons that follow, we conclude that JCHCC has not established a substantial likelihood of success on the merits of the only claim that is properly before us. Accordingly, we reverse the district court’s grant of the injunction.

I. FACTUAL AND PROCEDURAL BACKGROUND

JCHCC is a non-profit entity that receives federal funding under section 330 of the Public Health Service Act, 42 U.S.C. § 254b, to serve residents in medically un-derserved communities, regardless of their ability to pay. In the aftermath of Hurricanes Katrina and Rita, the Parish decided to allow JCHCC to use facilities owned by the Parish to restore basic health services to an underserved area of the Parish. Thus, in August 2006, JCHCC and the Parish entered into a “Cooperative Endeavor Agreement” (CEA) that would provide rent-free facilities to JCHCC in Mar-rero, Louisiana, for purposes of serving the medically underserved population there for a ten-year period ending on July 31, 2016. The CEA also stated.that the “Lease shall be renewed under the same terms and conditions for an additional five year term, unless any of the parties notify the other parties in writing of its intent not to renew at least 60 days prior to the expiration of the term then in effect.” In exchange for its occupancy of the Marrero facility, JCHCC pledged to provide a full range of primary care and clinical preventive services throughout Jefferson Parish.

JCHCC took possession of the Marrero facility on August 1, 2006, and renovated it for clinical purposes, investing nearly $1.5 million in federal grant funds. Subsequently, JCHCC and the Parish entered into a separate CEA that provided for JCHCC’s free occupancy of a Parish-owned facility in River Ridge, Louisiana, on a month-by-month basis.

Between 2009 and 2012, a series of federal and state audits found widespread misconduct in JCHCC’s management, including commingling and misappropriation of funds, improper lending to employees, and overpayments to contractors. In the wake of the audits, JCHCC’s then-CEO resigned, and the former CFO pleaded guilty to embezzlement. JCHCC .nearly lost its federal funding, and the Health Resources and Service Administration (HRSA) of the Department of Health and Human Services imposed a corrective action plan that, among other things, required JCHCC to seek recoupment of the previously misspent funds.

In September 2012, Dr. Shondra Williams began serving as JCHCC’s CEO. Williams spearheaded JCHCC’s effort to implement a corrective action plan, as re■quired by HRSA as a condition for its continued receipt of federal funding. Williams sent demand letters to individuals identified in audit reports as having' received payments to which they were not entitled, including JCHCC’s former CEO and its former attorney. Soon after sending the demand letters, Williams received a fax message from the office of Parish Councilman Spears with a proposed resolution to terminate the Marrero CEA. Williams perceived the message as a threat precipitated by JCHCC’s corrective action plan.

Williams subsequently met with Spears, at which meeting the councilman expressed to Williams that no one from JCHCC had reached out to him in the eleven months since he took office and commented that several entities were interested in occupying the Marrero space. Williams alleges that Spears then requested that she appoint an acquaintance of his to the governing board and terminate the CFO, who had participated in an audit that resulted in negative findings. On another occasion, Spears suggested that JCHCC should hire an attorney of his recommendation. Spears then told Williams that he would be interested in modifying JCHCC’s CEAs to allow continued use of the Marre-ro facility only if JCHCC satisfied his requests.

In April 2015, Williams became aware that Councilman Spears attempted to persuade several JCHCC board members to terminate her employment as JCHCC’s CEO without providing a reason. One year later, on April 5, 2016, JCHCC’s former CEO sent Williams a demand letter requesting $184,000 in severance pay, but JCHCC denied this demand after reviewing it. Shortly afterward, JCHCC received a letter dated April 14, 2016 from the Office of the Parish Attorney, indicating that the Parish desired alternative lease terms and attaching two resolutions that would, respectively, terminate the Marrero CEA and replace it with a month-to-month arrangement. The proposed resolutions were included on the Jefferson Parish Council’s agenda for April 20, 2016, but the vote was eventually deferred until May 11, 2016.

On May 11, without having previously provided any notice that such a resolution would be considered and without any discussion, the Parish Council voted unanimously to terminate the CEA for JCHCC’s River Ridge facility. The council then also unanimously voted to terminate the Marrero Agreement as of July 31, 2016. The Parish subsequently adopted a resolution to authorize the Parish Clerk to advertise for submissions of Statements of Qualifications from prospective healthcare providers to offer full-time comprehensive medical care to uninsured individuals at the River Ridge and Marrero locations. JCHCC partnered with Ochsner Health System, which submitted a Statement of Qualification, with JCHCC as its subcontractor. No other submissions were received by the notice’s June 30 submission deadline, and thus Councilman Spears unilaterally extended the deadline until July 14, 2016, and again to August 4.

On July 18, 2016, JCHCC filed this suit and a motion for a preliminary injunction against the Parish, the Parish Council, and the councilmembers in their official and individual capacities. JCHCC asserted claims under 42 U.S.C. § 1983 for violations of the Medicaid Act, 42 U.S.C. § 1396a(a)(10), and under section 330 of the Public Health Service Act, § 254b. In its response to JCHCC’s motion for a preliminary injunction, the Parish did not address or even mention JCHCC’s allegations under §§ 1983 or 254b and instead treated the matter as a simple breach of contract claim.

The district court held a hearing on the motion and, on July 26, granted a preliminary injunction enjoining the Parish from evicting JCHCC from the Marrero and River Ridge facilities but allowing the Parish to terminate the injunction upon a showing that the medical needs of JCHCC’s Medicaid patients would be met if JCHCC were evicted. The Parish filed a timely notice of appeal on the next day. Ultimately, after it filed its notice of appeal, JCHCC filed a first amended complaint, adding two Medicaid-beneficiary patients as plaintiffs and adding multiple causes of action.

II. DISCUSSION

A. Subject Matter Jurisdiction

As an initial matter, the Parish argues that JCHCC’s federal claims are “so completely devoid of merit” that the district court did not have subject matter jurisdiction to allow it to grant a preliminary injunction. While JCHCC points out that the Parish did not make this contention below, “we must satisfy ourselves that that the district court had jurisdiction to decide the case,” regardless of whether the issue was raised below. See Passmore v. Baylor Health Care Sys., 823 F.3d 292, 295 (5th Cir. 2016) (citing Union Planters Bank Nat’l Ass’n v. Salih, 369 F.3d 457, 460 (5th Cir. 2004)).

“Questions -of subject-matter jurisdiction are reviewed de novo.” Houston Ref., L.P. v. United Steel, Paper & Forestry, Rubber, Mfg., 765 F.3d 396, 400 (5th Cir. 2014). “[T]he absence of a valid (as opposed to arguable) cause of action does not implicate subject-matter jurisdiction.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). Thus, a district court lacks jurisdiction over a federal claim only if that claim “ ‘clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where such a claim is wholly insubstantial and frivolous.’ ” Id. (quoting Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 90 L.Ed. 939 (1946)). Determining whether a claim is wholly insubstantial and frivolous necessarily entails consideration of the merits, see, e.g., Stem v. Gomez, 813 F.3d 205, 209-10 (5th Cir. 2016); Gilbert v. Donahoe, 751 F.3d 303, 311 (5th Cir. 2014); therefore, we proceed to discuss the merits of JCHCC’s claim for a preliminary injunction. At this juncture, it suffices to say that, although we ultimately conclude that JCHCC has not carried its burden to establish a substantial likelihood of success on the merits of the only claim that is properly before us, we do not view its claim for a preliminary injunction as “wholly insubstantial and frivolous” so as to deprive the federal courts of jurisdiction to consider it.

B. Burford Abstention

Next, the Parish argues that, even if the district court had jurisdiction to consider JCHCC’s claims, it should have abstained from exercising its jurisdiction because “the grant of relief to JCHCC violates the balance of powers between the federal government and local government and impedes the Parish Council’s ability to regulate matters of local public concern.” In this respect, the Parish highlights that state law governs its CEAs with JCHCC, and it claims that the Parish’s termination of the CEAs was “subject to the Parish’s local interests in providing effective government to its citizenry.”

The Parish further contends that “the Medicaid Act established a cooperative state-federal program wherein the states actually administer and oversee the implementation of Medicaid assistance” and thus that “[h]ow Louisiana implements its Medicaid program and whether the Parish is in violation of the State’s Medicaid program ... necessarily involve important state interests.” Finally, the Parish argues that the district court’s exercise of jurisdiction “intrudes into the Parish’s ability to govern and to enforce its contractual rights” and “opens the floodgates for dissatisfied Parish contractors who receive federal funding to file federal lawsuits seeking to enjoin the Parish from amending or terminating those contracts.”

The Parish does not expressly commit itself to any particular abstention doctrine, but the only case it cites to actually support its argument deals with abstention under Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). Although the Parish did not raise this issue below, “Burford abstention may be raised at any time.” Munich Am. Reinsurance Co. v. Crawford, 141 F.3d 585, 588 (5th Cir. 1998).

, “The federal courts have a virtually unflagging obligation ... to exercise the jurisdiction given them.” Aransas Project v. Shaw, 775 F.3d 641, 649 (5th Cir. 2014) (quoting Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976)). Nevertheless, under Burford, abstention is proper “where the issues ‘so clearly involve basic problems of [State] policy’ that the federal courts should avoid entanglement.” Id. at 649 (alteration in original) (quoting Burford, 319 U.S. at 332, 63 S.Ct. 1098). Thus, the Supreme Court explained:

Where timely and adequate state-court review is available, a federal court sitting in equity must decline to interfere with the proceedings or orders of state administrative agencies: (1) when there are “difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar”; or (2) where the “exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.”

New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 361, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989).

In deciding whether to exercise Burford abstention, we weigh the following factors:

(1) whether the cause of action arises under federal or state law; (2) whether the case requires inquiry into unsettled issues of state law, or into local facts; (3) the importance of the state interest involved; (4) the state’s need for a coherent policy in that area; and (5) the presence of a special state forum for judicial review.

Romano v. Greenstein, 721 F.3d 373, 380 (5th Cir. 2013). In Romano, a Medicaid beneficiary sued the Louisiana Department of Health and Hospitals under § 1983, alleging that its decisions, policies, and procedures resulted in an illegal termination of her benefits. Id. at 374-75. Applying the factors described above, the Romano court stated:

None of these factors weighs in favor of abstention’ in this case. The cause of action arises under federal law, there are no apparent issues of state law or local facts, the interest in proper application of federal Medicaid law is paramount, and there is no special state forum for judicial review. Accordingly, the district court did not abuse its discretion in declining to exercise Burford abstention.

Id. at 380.

This statement applies with equal force in the instant case: JCHCC asserts claims under federal law, and the Parish provides no meaningful support for its contention that the federal courts should abstain from deciding those claims. The Parish cites a single case, Bethphage Lutheran Service, Inc. v. Weicker, 965 F.2d 1239 (2d Cir. 1992), which is plainly distinguishable. In Bethphage, a provider of residential and day care services to disabled persons sued state officials, contending they were paying for services at a lower level than mandated by federal law. 965 F.2d at 1240. The Second Circuit ruled that Burford abstention was proper because there was a specific state regulatory procedure to challenge the service rates. Id. at 1244-45. Notably, the plaintiffs claims in Bethphage raised the specific question of what constitutes reasonable payment for necessary services under the Home and Community Based Services Waiver Act, which the court found “necessarily invokes the expertise and best judgment of the [state’s] Commissioner of Mental Retardation and does not lend itself to consistent judicial interpretation.” Id. at 1243.

In contrast, here, beyond making gestures at the importance of local interests, the Parish does not explain what efforts to establish a coherent policy on a matter of public concern would be disrupted by the exercise of federal review. Cf. BT Inv. Managers, Inc. v. Lewis, 559 F.2d 950, 955 (5th Cir. 1977) (reversing dismissal on Burford abstention grounds because “[although the challenged statutes [we]re part of a large and perhaps complex regulatory scheme[,] i. e., the Florida Banking Code[,] ... appellants focus[ed] their attack upon a single statute whose possible invalidation could scarcely be expected to disrupt Florida’s entire system of banking regulation” (footnote omitted)). Nor does the Parish point to any difficult question of state law or a “special state forum for judicial review” that exists in this case. See New Orleans Pub. Serv., 491 U.S. at 361, 109 S.Ct. 2506. Accordingly, Burford-ahstention is inappropriate in this case.

C. Legislative Immunity and Privilege

The Parish contends that JCHCC’s claims are all barred by legislative immunity and privilege. The Parish reasons that JCHCC’s claims are based on the motivations and thought processes of the council-members who enacted the resolutions at issue. It contends that the Parish council-members’ votes for the resolutions were “inherently legislative acts” and thus that they are immune from liability for their votes and their reasons for passing the resolutions áre privileged. JCHCC responds that it is seeking only equitable relief, and it argues that the Parish’s termination of the CEAs was not a legislative act and did not trigger legislative immunity-

We need not consider, however, whether the councilmembers challenged actions in this case are subject to their legislative immunity in their individual capacity. JCHCC has also sued the Parish, the Parish Council, and the council-members in their official capacity. Local governing bodies, such as the Parish and its council, “do not enjoy immunity from suit ... under § 1983,” Burge v. Parish of St. Tammany, 187 F.3d 452, 466 (5th Cir. 1999), and “an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity,” Goodman v. Harris Cty., 571 F.3d 388, 395 (5th Cir. 2009) (quoting Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985)). Thus, the Parish, the council, and the councilmembers in their official capacity enjoy no immunity from suit, and the action against those parties can serve as sufficient grounds to sustain a preliminary injunction.

Turning to the Parish council-members’ claim for legislative privilege, we note that this is an evidentiary privilege, “governed by federal common law, as applied through Rule 501 of the Federal Rules of Evidence.” Perez v. Perry, No. SA-11-CV-360-OLG-JES, 2014 WL 106927, at *1 (W.D. Tex. Jan. 8, 2014) (citing Rodriguez v. Pataki, 280 F.Supp.2d 89, 93-94 (S.D.N.Y.2003)). “While the common-law legislative immunity for state legislators is absolute, the legislative privilege for state lawmakers is, at best, one which is qualified.” Id. at *2 (citation and internal quotation marks omitted). This privilege “must be strictly construed and accepted only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining the truth.” Id. at *1 (internal quotation marks omitted). At any rate, even assuming that the councilmembers’ reasons for passing the resolutions are privileged in the sense that they cannot be directly compelled to disclose them, this evidentiary privilege cannot bar the adjudication of a claim.

D. The Preliminary Injunction

The district court granted a preliminary injunction based on JCHCC’s § 1983 Medicaid violation claim. This court reviews a district court’s ultimate decision to grant a preliminary injunction for abuse of discretion, but the district court’s findings of fact are reviewed for clear error and its conclusions of law are reviewed de novo. See Dennis Melancon, Inc. v. City of New Orleans, 703 F.3d 262, 267 (5th Cir. 2012). To obtain a preliminary injunction, a movant must establish: (1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable harm if the injunction is not granted; (3) that the threatened injury to the movant outweighs the injury to the party to be enjoined; and (4) that granting the injunction will not disserve the public interest. Lake Charles Diesel, Inc. v. Gen. Motors Corp., 328 F.3d 192, 196 (5th Cir. 2003). Our review ends with the first prong of this test, as neither of the two JCHCC claims that is properly before us survives it.

A. Section 1983 — Medicaid violation

JCHCC argues that the Parish’s termination of the CEAs violated the rights of Medicaid-beneficiary patients of JCHCC’s Marrero and River Ridge sites to receive services under the Medicaid Act, 42 U.S.C. §§ 1396a(a)(10) and 1396d(a)(2)(C). The district court opined that JCHCC’s arguments “may stretch the limits of § 1983 relief’ but concluded that it had made some showing of a substantial likelihood of success on the merits of a claim that “the Parish may not leave buildings vacant and deprive Medicaid recipients of their right to have accessible medical services.” On appeal, the Parish argues that the district court erred in so concluding and that JCHCC had failed to establish that Medicaid beneficiaries have a right to obtain healthcare services on particular premises owned by the Parish.

The Medicaid Act, § 1396 et seq., provides for the allocation of federal funds to states who submit a “State plan for medical assistance.” § 1396-1. “States are not required to participate in Medicaid, but all of them do.” Arkansas Dep’t of Health & Human Servs. v. Ahlborn, 547 U.S. 268, 275, 126 S.Ct. 1752, 164 L.Ed.2d 459 (2006). Section 1396a(a)(10) provides that “[a] State Plan must provide for making medical assistance available, including at least the care and services listed in paragraphs (1) through (5) ... of section 1396d(a) of this title, to all individuals” who meet certain eligibility criteria. We have held that § 1396a(a)(10) creates a private right of action that is enforceable through § 1983. See S.D. ex rel. Dickson v. Hood, 391 F.3d 581, 605-07 (5th Cir. 2004).

Pursuant to § 1396d(a)(2)(C), the services required under § 1396a(a)(10) include the services provided by JCHCC at its River Ridge and Marrero facilities. Until recently, the Medicaid Act defined the term “medical assistance” merely as “payment of part or all of the cost of services.” § 1396d(a) (2009). However, Congress amended this definition through the Patient Protection and Affordable Care Act, and the term “medical assistance” is now defined as payment of part or all of the cost of the following care and services “or the care and senices themselves, or both.” § 1386d(a) (2013) (emphasis added). The Seventh Circuit recently remarked that by amending this definition, “Congress intended to clarify that where the Medicaid Act refers to the provision of services, a participating State is required to provide (or ensure the provision of) services, not merely to pay for them.” O.B. v. Norwood, 838 F.3d 837, 843 (7th Cir. 2016) (quoting A.H.R. v. Wash. State Health Care Auth., No. C15-5701JLR, 2016 WL 98513, at *11-12 (W.D. Wash. Jan. 7, 2016)).

The problem with JCHCC’s theory that the Parish’s termination of the CEAs would violate the Medicaid Act is that the Parish is not a state. While Louisiana is a participating state that may be required to provide or ensure the availability of medical services to eligible individuals under the Medicaid Act, the plain terms of the Medicaid Act impose no such obligation on the Parish. JCHCC does not point to any authority suggesting that every local government in every participating state must provide the relevant medical services, nor does it point to authority establishing that the Parish has any obligation under Louisiana state law to provide such services on behalf of the state.

Though there is no particular degree of likelihood of success that is required in every case, the party seeking a preliminary injunction must establish at least some likelihood of success on the merits before the court may proceed to assess the remaining requirements. See State of Tex. v. Seatrain Int’l, R.A, 518 F.2d 175, 180 (5th Cir. 1975). On the showing made, JCHCC’s theory is unsustainable. It has not established a substantial likelihood of success on the merits of its claim.

B. Preemption under Section 330 of the Public Health Services Act

JCHCC alleges that the Parish’s resolutions are preempted by Section 330 of the Public Health Services Act, § 254b, and its implementing regulations. Section 330 makes federal funding available to qualified health centers that provide primary healthcare services to medically underserved populations, and it imposes certain obligation upon such healthcare providers. See § 254b. JCHCC argues that the Parish’s resolutions unlawfully obstruct JCHCC’s ability to fulfill its Section 330 obligations and are therefore preempted by it.

Before the district court, JCHCC contended that it has an implied right of action under Section 330. The district court concluded that JCHCC had not established a substantial likelihood of success on the merits of this claim, primarily because it had not established that it had an implied right of action. The court appeared to have misinterpreted JCHCC’s argument as a contention that the Supremacy Clause creates an implied cause of action. Rejecting such a contention, the district court cited Armstrong v. Exceptional Child Center, Inc., in which the Supreme Court held that “the Supremacy Clause is not the source of any federal rights[ ]'and certainly does not create a cause of action.” — U.S. -, 135 S.Ct. 1378, 1383, 191 L.Ed.2d 471 (2015) (citation and internal quotation marks omitted).

On appeal, JCHCC no longer asserts an implied right of action under section 330, nor does it assert an implied right of action under the Supremacy Clause; instead, it appeals to the power of federal courts of equity to enjoin unlawful actions by public officers. See Armstrong, 135 S.Ct. at 1384 (“[I]n a proper case, relief may be given in a court of equity ... to prevent an injurious act by a public officer.”) (quoting Carroll v. Safford, 44 U.S. 441, 3 How. 441, 463, 11 L.Ed. 671 (1845)). We decline to entertain this request, as JCHCC did not raise it before the district court. See In re Paige, 610 F.3d 865, 871 (5th Cir. 2010) (this court generally does not consider arguments raised for the first time on appeal). We also do not reach the issue of whether the statute itself implies a private right of action, as JCHCC has forfeited this contention on appeal. See United States v. Jackson, 426 F.3d 301, 304 n.2 (5th Cir. 2005) (issue not raised in party’s opening brief is generally forfeited). Accordingly, we cannot find any error in the district court’s conclusion that JCHCC did not establish a substantial likelihood of success on the merits of its claim under section 330 of the Medicaid Act.

C. New Claims Asserted in JCHCC’s First Amended Complaint

On August 12, 2016, after the district court issued its injunction, JCHCC filed a first amended complaint, which introduced new claims, including a breach of contract claim, a substantive due process claim, and an additional § 1988 claim asserting violations of JCHCC’s right to payment under § 1396a(bb). JCHCC contends that we “should not review the injunction through the lens of the original complaint only” and thus that we should consider the claims introduced in its first amended complaint. We must reject this invitation.

We have refused to consider claims that were included in an amended complaint filed subsequent to a district court order in an appeal of that order. See, e.g., Charles v. Grief, 522 F.3d 508, 510 n.1 (5th Cir. 2008). More specifically, in the context of preliminary injunctions, we have said that “appellate inquiry into the merits of an interlocutory decision on injunction relief ordinarily seeks only to ascertain whether the lower court has abused its discretion.” Martinez v. Mathews, 544 F.2d 1233, 1237 (5th Cir. 1976) (internal quotation marks omitted). Here, there could be no abuse of discretion by the district court in denying relief based on claims that the court did not have before it. ' We therefore decline to consider JCHCC’s new claims as support for the district court’s injunction. See id. Of course, JCHCC may raise these claims before the district court in the first instance in a motion for a new preliminary injunction.

III. CONCLUSION

For the forgoing reasons; we REVERSE the district court’s grant of a preliminary injunction.

      . We describe the facts of the case in accordance with the findings of the district court, which were not contested before us. These findings will not bind the district court at trial on the merits. See Dennis Melancon, Inc. v. City of New Orleans, 703 F.3d 262, 268 (5th Cir. 2012).

      . As previously noted, the Marrero Agreement was otherwise set to renew automatically for a five-year term after July 31, 2016.

      . The Parish does not question JCHCC's standing to assert the rights of its Medicaid-beneficiary patients, and any such argument is therefore forfeited. See Ensley v. Cody Res., Inc., 171 F.3d 315, 320 (5th Cir. 1999) (the limitation on third party standing is prudential and subject to forfeiture).

      . In Dickson, we affirmed the district court's grant of summary judgment against the Louisiana Department of Health and Hospitals on a claim that the agency failed to provide Medicaid beneficiaries with medical assistance for prescribed disposable incontinence underwear. 391 F.3d at 603, 607.

      . We note that, to the extent otherwise permissible, our opinion does not prevent JCHCC from raising its arguments regarding section 330’s creation of a right of action and the courts’ equitable power to enjoin unlawful action before the district court.