substance abuse problems, to secure from the New Jersey
Board of Medical Examiners ("the Board") an unrestricted medical
license. As part of the Division of Consumer Affairs, the Board is
charged with maintaining standards for the practice of medicine that are
consistent with law and public safety. Although substance abuse by a
physician is a serious concern of the Board, in practice, many cases of
dependency are treated outside of public disciplinary proceedings through
a program funded and sponsored by MSNJ. This program, dubbed the
Physicians' Health program ("PHP"), is a comprehensive rehabilitation
program that serves physicians with substance abuse problems. (Compl.,
¶¶ 10, 11). With respect to past physicians who have been treated
successfully under the PHP, the Board has granted them medical licenses
that are ostensibly unrestricted, but have been subject to conditions
contained in a so-called private letter of agreement between the
physician and the Board. Thus, the final issuance of a private letter of
agreement has commonly been a necessary condition to the grant of a
medical license to a physician with a record of substance abuse.
The Complaint alleges the defendant Herr has adopted a policy of
reviewing all such private letters of agreement to be issued by the Board
and refusing to permit these letters to be issued "in any case involving
a disability caused by abuse of and/or addiction to prescription
medications and/or controlled dangerous substances." (Compl., ¶ 14).
Instead, plaintiffs allege, he has determined that such cases must be
treated as matters of public record. In particular, they allege that Mr.
Herr interfered with the Board's administration of plaintiff Doe's
application for an unrestricted medical license by holding up the issuance
of a private letter of agreement. This treatment amounts to
discrimination, they assert, because it differs from that accorded to
physicians who have transgressed disciplinary standards not concerning
substance abuse. Concerning those physicians, Mr. Herr does not intercede
in the Board's granting of licenses contingent upon private letters of
agreement. (Id., ¶ 16). Plaintiffs assert that Mr. Herr is without
legal authority to take such actions, which they deem to be an
interference with the Board's functions. (Id., ¶ 15).
It is further alleged that Doe has been subjected to potential
discipline by the Board by reason of a disability connected to substance
abuse problems, notwithstanding his successful completion of the PHP. A
private letter of agreement containing conditions pertaining to the
ongoing monitoring was to be issued by the Board concerning Doe, but such
was withheld by defendant Herr and accompanied by a threat of public
disclosure. As a result, Doe is alleged to have been placed in
professional limbo. (Id., ¶¶ 18, 19).
On the basis of these allegations, the Complaint advances three
claims. Count I is asserted against Mr. Herr and the State under Title II
of the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq.
("ADA"), alleging discrimination toward Doe and disabled physicians,
generally. Count II is asserted under 42 U.S.C. § 1983. and alleges
that Mr. Herr deprived plaintiff Doe of the equal protection of the law.
Count III is a claim brought directly under the Constitution against both
defendants and alleges violation of the equal protection under the
Fourteenth Amendment.*fn2 Count I contains no claim for damages, only
declaratory and injunctive relief in addition to costs and fees.
Compensatory damages, as well as declaratory
and injunctive relief, are sought in Counts II and III.
I. Defendants' Motion for Dismissal of All of MSNJ's Claims and of Doe's
Claim Under the ADA is Granted for Lack of Subject Matter
A. Standard for rule 12(b)(1) Motion
Defendants have moved pursuant to Federal Rule of Civil procedure 12
(b)(1) for dismissal of certain claims for lack of subject matter
jurisdiction. As discussed in greater detail below, the particular issues
raised in this aspect of defendants' motion are properly considered as
attacking the existence of subject matter jurisdiction. Before proceeding
to the substance, however, it is worthwhile to review the proper standard
to be applied to a Rule 12(b)(1) motion.
In recognition of the confusion courts have faced over the standard to
be applied to a motion to dismiss for lack of subject matter
jurisdiction, the Third Circuit has devoted substantial discussion to
distinguishing 12(b)(1) motions from other dispositive motions,
particularly those made pursuant to Federal Civil Rules 12(b)(6) and
56. In Mortensen v. First Federal Savings & Loan Ass'n, the court of
appeals sought to clarify the issue by dividing Rule 12(b)(1) motions
into two categories: facial and factual. 549 F.2d 884, 891 (3d Cir.
1977). A facial attack on jurisdiction is directed to the sufficiency of
the pleading as a basis for subject matter jurisdiction. "In reviewing a
facial attack, the court must only consider the allegations of the
complaint and documents referenced therein and attached thereto in the
light most favorable to the plaintiff." Gould Electronics Inc. v. United
States, 220 F.3d 169, 176 (3d Cir. 2000). Thus, a facial challenge to
jurisdiction offers to the plaintiff similar safeguards to those related
to Rule 12(b)(6) and 56 motions.
In stark distinction is the factual 12(b)(1) motion which, not
surprisingly, calls into question the essential facts underlying a claim
of subject matter jurisdiction. "Because at issue in a factual 12(b)(1)
motion is the trial court's jurisdiction[,] its very power to hear the
case[,] . . . the trial court is free to weigh the evidence and satisfy
itself as to the existence of its power to hear the case." Mortensen, 549
F.2d at 891; see Carpet Group Int'l v. Oriental Rug Importers Ass'n
Inc., 227 F.3d 62, 69 (3d Cir. 2000). Thus, the court may proceed in a
way it cannot under Rules 12(b)(6) and 56; moreover, no presumptive
truthfulness attaches to plaintiff's allegations of jurisdictional
facts. Robinson v. Dalton, 107 F.3d 1018, 1021 (3d Cir. 1997) (citing
Mortensen, 549 F.2d at 891). When resolving a factual challenge, the
court may consult materials outside the pleadings, and the burden of
proving jurisdiction rests with the plaintiff. Gould Electronics, 220 F.3d
at 176, 178. In general, when a Rule 12(b)(1) motion is supported by a
sworn statement of facts, the court should treat the defendant's
challenge as & factual attack on jurisdiction. See International Ass'n of
Machinists & Aerospace Workers v. Northwest Airlines, 673 F.2d 700, 711
(3d Cir. 1982)
Turning to the substance of the instant motion, defendants argue that
plaintiff MSNJ lacks standing to pursue any of the claims in the
Complaint. Under Article III, Section 2 of the United States
Constitution, the exercise of judicial power depends upon the existence
of a "Case" or "Controversy." U.S. Const. art. III, § 2; DeFunis v.
Odegard, 416 U.S. 312, 316 (1974). This limitation on federal judicial
authority is the source of the court's standing jurisprudence. Standing
is comprised of both constitutional and prudential components.
The Third Circuit recently articulated the constitutional requirements
of standing as follows:
(1) the plaintiff must have suffered an injury in fact
— an invasion of a legally protected interest
which is (a) concrete and particularized and (b)
actual or imminent; not conjectural or hypothetical;
(2) there must be a causal connection between the
injury and the conduct complained of — the
injury has to be fairly traceable to the challenged
action of the defendant and not the result of the
independent action of some third party not before the
court; and (3) it must be likely, as opposed to merely
speculative, that the injury will be redressed by a
Society Hill Towers Owners' Ass'n v. Rendell, 210 F.3d 168, 176 (3d Cir.
2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61
(1992)). The underlying purpose of the constitutional requisite of injury
in fact is to "`assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for
illumination of difficult . . . questions.'" Polaroid Corp. v. Disney,
862 F.2d 987, 999 (3d Cir. 1988) (quoting Baker v. Carr, 369 U.S. 186
(1962) (internal quotation omitted)).
An association, like any other plaintiff, may establish standing in its
own right if it can satisfy the constitutional standard set forth above.
Alternatively, as may be the case when a plaintiff association cannot
demonstrate injury to itself, it may pursue in a representative capacity
the claims of its members if it can satisfy a three-prong test for
associational standing. Under that test, an association must demonstrate
that "(a) its members would otherwise have standing to sue in their own
right; (b) the interests it seeks to protect are germane to the
organization's purpose; and (c) neither the claim asserted nor the relief
requested requires the participation of Individual members in the
lawsuit." Hunt v. Washington State Apple Advertising Commission,
432 U.S. 333, 343 (1977); Pennsylvania Psychiatric Soc'y v. Green Spring
Health Servs., Inc., No. 00-3403, 2002 WL 186008, at *3 (3d Cir., Feb.
Defendants argue that plaintiff MSNJ lacks standing in its own right to
bring these claims because it has sustained no injury in fact, and that
it may not invoke associational standing because none of its members
stand to be injured by the alleged discriminatory practice of Mr. Herr.
In support of this argument, they submit the sworn statement of the
Board's executive director who states that there are no physicians in the
category of physicians MSNJ claims to represent in the Complaint.
Defendants argue that, in the absence of any physicians who have been
harmed or are in imminent danger of being injured as a result of Mr.
Herr's alleged discriminatory policy, MSNJ cannot satisfy the first
element of the Hunt test for associational standing.
For its part, MSNJ does not claim that it has been injured directly by
any action of defendants but rather asserts associational standing. There
has been nothing offered in the way of proof, however, that rebuts the
executive director's assertion that MSNJ's members are not imperiled
presently by the actions alleged to have taken place by Mr. Herr.
Instead, MSNJ argues that there is the potential for harm to befall
"members and potential members.," (Plaintiffs' Br. at 4, 10).
In short, MSNJ's arguments do not satisfy the Article III's requirement
of injury-in-fact. For one of its members to be injured that individual
would have to: (1) suffer from a disability related to abuse or addiction
to controlled substances, (b) submit to the PHP, (c) complete
successfully the PHP, (d) apply to the Board for an
unrestricted license, (e) have the Board approve such licensure conditioned
on Mr. Herr's approval of a private letter of agreement. In light of this
attenuation, MSNJ's assertions of potential harm are remote and
speculative. As a practical matter, MSNJ has submitted no proof whatever
that disputes the fact that none of its members, excepting Doe, have been
injured or are presently threatened with injury.*fn3 For these reasons,
plaintiff MSNJ lacks associational standing under the Hunt standard and,
therefore, its claims must be dismissed for lack of subject matter
Similarly, the foregoing factual analysis tends to support dismissal of
MSNJ's claims for lack of ripeness, a contention that defendants raise
concurrently with their standing argument. Another Article III "Case" or
"Controversy" limitation on federal court jurisdiction, the ripeness
doctrine is centrally concerned with preventing "the courts' through the
avoidance of premature adjudication, from entangling themselves in
abstract disagreements." Artway v. Attorney General of the State of
N.J., 81 F.3d 1235, 1246-47 (3d Cir. 1996). The ripeness determination
turns on the weighing of two factors: "(1) the hardship to the parties of
withholding court consideration; and (2) the fitness of the issues for
judicial review." (Id.) In the instant matter, given that there has been
no finalized agency decision pertaining to any of MSNJ's members*fn5
— only the organization's claim of hypothetical potential harm to
their members — to permit MSNJ to proceed with the instant claims
constitutes improper judicial intervention into a matter as yet
unresolved in the first instance by the appropriate administrative
agency. The Court is unpersuaded that either factor favors judicial
intervention at this stage. Thus, ripeness serves as an alternative
ground for dismissal of MSNJ's claims.
Next, defendants submit that, because the Board granted an unrestricted
license to him in June 2001, plaintiff Doe's claim for declaratory and
prospective injunctive relief under the ADA is moot and, therefore, should
be dismissed for lack of subject matter jurisdiction. Apart from the
requisite of standing, Article III's "Case" or "Controversy" requirement
embodies an additional fundamental limitation that "restrict[s] the
federal courts to the adjudication of `actual, on going cases or
controversies.'" County of Morris v. Nationalist
Movement, 273 F.3d 527,
533 (3d Cir. 2001) (quoting Rhodara Envtl., Inc. v. Beckman, 237 F.3d 186,
192-93 (3d Cir. 2001)). This requisite ensures that the courts are able
to grant effective relief, rather than rendering advisory opinions. (Id.)
Elaborating on this notion, the Third Circuit has stated that "[i]f
developments occur during the course of adjudication that eliminate a
plaintiff's personal stake in the outcome of a suit or prevent a court
from being able to grant the requested relief, the case must be dismissed
as moot." (Id., quoting Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690,
698-99 (3d Cir. 1996)).
Here, plaintiff Doe concedes that his claim under the ADA is moot in a
technical sense, but urges the Court to proceed to the merits anyway.
First, Doe seeks the application of an exception to the mootness
requirement for cases "capable of repetition, but evading review." S.
Pac. Terminal Co. v. ICC, 219 U.S. 498, 515 (1911); DeFunis v. Odegaard,
416 U.S. 312, 318-19 (1974). Second, plaintiff urges that the mootness
requirement is overcome by the fact that his claim has become moot only
because of defendants' voluntary cessation of illegal conduct.
Though plaintiff advances what appear to be two distinct theories, a
single argument undergirds his efforts to avoid dismissal for mootness,
to wit: he may once again become aggrieved because defendant Herr may,
"at any time, breach the confidentiality of his situation and release his
private letter of agreement as a matter of public record." (Plaintiffs'
Br. at 11). In this Court's judgment, this argument does not warrant
circumvention of the mootness requirement on either legal ground advanced
by Doe. First, it neither appreciates the narrowness of the "capable of
repetition" exception, nor satisfies the applicable standard. Only
exceptional cases merit taking the capable of repetition, yet evading
review" avenue around the mootness inquiry. Nationalist Movement, 273
F.3d at 534 (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 109
(1983)). Specifically, the Third Circuit has stated that courts should
apply this exception only when plaintiff demonstrates that "(1) the
challenged action was in its duration too short to be fully litigated
prior to its cessation or expiration, and (2) there [is] a reasonable
likelihood that the same complaining party would be subjected to the same
action again." Abdul-Akbar v. Watson, 4 F.3d 195, 206 (3d Cir. 1993).
Here, plaintiff Doe's argument that Mr. Herr would take future action to
harm him is groundless speculation, unsupported by reasoned argument and
unaccompanied by some proof of Mr. Herr's continuing malice or ill will
toward plaintiff. This is an insufficient basis for invoking the "capable
of repetition" exception. (Id. at 207).
Second and similarly, plaintiff cannot avoid dismissal for mootness on
a "voluntary cessation" ground. It is the law of the Third Circuit that
when a defendant agrees to provide all the prospective injunctive relief
sought by a plaintiff, his claim for that relief may be dismissed as
moot. Johnson v. Horn, 150 F.3d 276, 287 (3d Cir. 1998). Here, plaintiff
seeks in Count I to enjoin defendants from holding back confidential
letters of agreement, from publically disclosing their contents, and from
interfering with the Board's duties. Yet, the undisputed facts of this
record show that Doe has been granted an unrestricted license
unaccompanied by any requirement for a private letter of agreement. This
eventuality has mooted the above-described claims for injunctive relief
because Dr. Doe no longer has any personal stake in the outcome of this
matter on which justiciability turns. That there remains in Count I a
claim for declaratory
relief does not save this claim from dismissal for
mootness. In Jersey Central Power & Light Co. v. New Jersey, the Third
Circuit determined that when a plaintiff's claim for equitable relief is
moot, a concurrent request for declaratory relief did not prevent
dismissal. 772 F.2d 35, 40-41 (3d Cir. 1985) ("A declaratory judgment is
available only so long as there is an actual controversy among the
parties.") Accordingly, Count I of the Complaint will be dismissed for
lack of subject matter jurisdiction as plaintiff Doe's claims therein are
II. Defendants' Motion for Dismissal of Doe's § 1983 and Equal
Protection Claims is Granted for Failure to State a Claim.
Defendants move against Doe's remaining claims set forth in Counts II
and III of the Complaint. Both of these claims assert, either directly or
through the vehicle of a cause of action under 42 U.S.C. § 1983, a
deprivation of the Fourteenth Amendment's guarantee of the equal
protection of the law. Defendants argue that, as a matter of law, the
alleged conduct taken by Mr. Herr cannot constitute an equal protection