UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

┐ PHILLIP TRUESDELL; LEGACY MEDICAL TRANSPORT, │ LLC, │ Plaintiffs-Appellants, │ │ > No. 22-5808 v. │ │ ERIC FRIEDLANDER, in his official capacity as │ Secretary of the Kentucky Cabinet for Health and │ Family Services; ADAM MATHER, in his official │ capacity as Inspector General for the Kentucky │ Cabinet for Health and Family Services; CARRIE │ BANAHAN, in her official capacity as Deputy Secretary │ of the Kentucky Cabinet for Health and Family │ Services, │ Defendants-Appellees, │ │ │ FIRST CARE OHIO, LLC, fka Patient Transport │ Services, Inc., │ Intervenor-Defendant-Appellee. │ ┘

Appeal from the United States District Court for the Eastern District of Kentucky at Frankfort. No. 3:19-cv-00066—Gregory F. Van Tatenhove, District Judge.

Argued: March 8, 2023

Decided and Filed: September 1, 2023

Before: GRIFFIN, BUSH, and MURPHY, Circuit Judges. _________________

COUNSEL ARGUED: Joshua Polk, PACIFIC LEGAL FOUNDATION, Sacramento, California, for Appellants. David T. Lovely, CABINET FOR HEALTH & FAMILY SERVICES, Frankfort, Kentucky, for Defendants Appellees. David M. Dirr, DRESSMAN BENZINGER LAVELLE PSC, Covington, Kentucky, for Intervenor Appellee. ON BRIEF: Joshua Polk, Anastasia P. No. 22-5808 Truesdell, et al. v. Friedlander, et al. Page 2

Boden, PACIFIC LEGAL FOUNDATION, Sacramento, California, for Appellants. David T. Lovely, Wesley W. Duke, CABINET FOR HEALTH & FAMILY SERVICES, Frankfort, Kentucky, for Defendants Appellees. David M. Dirr, Christopher B. Markus, DRESSMAN BENZINGER LAVELLE PSC, Covington, Kentucky, for Intervenor Appellee. _________________

OPINION _________________

MURPHY, Circuit Judge. Legacy Medical Transport, a small family-owned business, provides nonemergency ambulance services in several Ohio counties that border Kentucky. After receiving many inquiries from Kentucky hospitals and nursing homes, Legacy sought to expand into the Commonwealth. But Kentucky required Legacy to show a “need” for its services and to apply for a “certificate of need” with the Kentucky Cabinet for Health and Family Services. Unsurprisingly, existing ambulance providers (Legacy’s potential competitors) objected to Legacy’s request. The Cabinet denied Legacy’s application partly on the ground that these providers offered an adequate supply. Legacy then sued various Cabinet officials, alleging that Kentucky’s certificate-of-need law violated the “dormant” or “negative” part of the Commerce Clause. The district court granted summary judgment in favor of the Cabinet officials. We affirm in part and reverse in part.

We affirm with respect to Legacy’s reque