The opinion of the court was delivered by: John W. Bissell, Chief Judge
This matter comes before the Court on defendants' motion to dismiss the
Complaint on several grounds. Plaintiff John Doe, M.D., a physician with
a record of substance abuse, sought certification from the state
licensing board to practice medicine in New Jersey without limitation.
When the board forwarded his application to the Director of Consumer
Affairs for his approval, plaintiff and A private organization
representing medical practitioners filed suit alleging violation of Title
II of the Americans with Disabilities Act and the constitutional
guarantee of equal protection of the law. Presently, before the Court is
defendants' motion to dismiss certain claims for lack of subject matter
jurisdiction and others for failure to state a claim.
This Court's subject matter jurisdiction is founded on
28 U.S.C. § 1331.
Founded in 1766 and incorporated in 1877, plaintiff Medical Society of
New Jersey ("MSNJ") is a New Jersey corporation that serves as the
State's primary organization of physicians. MSNJ seeks to promote the
quality of health care and health services for all citizens of the State
and to supply leadership and assistance to its physician members. To
fulfill this mission, MSNJ regularly participates in important issues in
the judicial, legislative, and regulatory arenas. (Compl., ¶ 3).
Plaintiff John Doe, M.D. ("Doe") is a physician licensed to practice
medicine and surgery in the States of New Jersey, Pennsylvania and
Massachusetts, residing in Monmouth County, New Jersey, and is a member
of MSNJ.*fn1 (Compl., ¶ 4).
Defendant Mark S. Herr is the Director of the Division of Consumer
Affairs of the Division of Law and Public Safety of the State of New
Jersey. (Compl., ¶ 5).
B. Plaintiff's Claims and the Underlying Allegations
This action involves the efforts of plaintiff Doe, a physician who has
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 ...