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MEDICAL SOCIETY OF NEW JERSEY v. HERR

March 21, 2002

THE MEDICAL SOCIETY OF NEW JERSEY; AND JOHN DOE, M.D., PLAINTIFFS,
V.
MARK S. HERR, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE STATE OF NEW JERSEY, DEPARTMENT OF LAW AND PUBLIC SAFETY, DIVISION OF CONSUMER AFFAIRS; AND THE STATE OF NEW JERSEY, DEFENDANTS.



The opinion of the court was delivered by: John W. Bissell, Chief Judge

  OPINION

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.

FACTS

A. The Parties

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

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.

DISCUSSION

I. Defendants' Motion for Dismissal of All of MSNJ's Claims and of Doe's Claim Under the ADA is Granted for Lack of ...

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