Aaron Private Clinic Management Llc v. Berry et al

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM First Amended Complaint

N.D. Ga.May 18, 2017

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION AARON PRIVATE CLINIC ) MANAGEMENT, LLC, ) ) Plaintiff, ) ) v. ) CIVIL ACTION NO. ) 1:17-cv-01034-WSD FRANK W. BERRY, et al., ) ) Defendants. ) DEFENDANTS’ MOTION TO DISMISS Defendants Frank W. Berry, in his official capacity as Commissioner for the Georgia Department of Community Health, and Nathan Deal, in his official capacity as Governor of the State of Georgia, through counsel, and pursuant to FED. R. CIV. P. 12(b)(6), respectfully file this motion to dismiss the First Amended Complaint and all claims in this action based on lack of standing, failure to state a claim, the Eleventh Amendment and sovereign immunity, and other grounds as set forth in the brief filed herewith. WHEREFORE, Defendants respectfully request that the Court grant this motion and dismiss Plaintiff’s lawsuit and all claims asserted therein. Case 1:17-cv-01034-WSD Document 23 Filed 05/18/17 Page 1 of 3 2 Respectfully submitted, CHRISTOPHER M. CARR 112505 Attorney General KATHLEEN M. PACIOUS 558555 Deputy Attorney General s/ Roger A. Chalmers 118720 ROGER A. CHALMERS Senior Assistant Attorney General s/ Bradley D. Harder 117880 BRADLEY D. HARDER Assistant Attorney General PLEASE ADDRESS ALL COMMUNICATIONS TO: Roger A. Chalmers State Law Department 40 Capitol Square SW Atlanta, GA 30334 Tel: (404) 463-8850 Fax: (404) 651-5304 Email: rchalmers@law.ga.gov Case 1:17-cv-01034-WSD Document 23 Filed 05/18/17 Page 2 of 3 CERTIFICATE OF SERVICE I certify that I have this day served the foregoing pleading with the Clerk of Court using the CM/ECF system which will automatically send email notification of such filing to the following attorneys of record: James Anderson Dunlap, Jr. I further certify that I have mailed by United States Postal Service the document to the following non-CM/ECF participants: NONE. This 18th day of May, 2017. s/ Roger A. Chalmers Case 1:17-cv-01034-WSD Document 23 Filed 05/18/17 Page 3 of 3 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION AARON PRIVATE CLINIC ) MANAGEMENT, LLC, ) ) Plaintiff, ) ) v. ) CIVIL ACTION NO. ) 1:17-cv-01034-WSD FRANK W. BERRY, et al., ) ) Defendants. ) BRIEF IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS Defendants Frank W. Berry, in his official capacity as Commissioner for the Georgia Department of Community Health, and Nathan Deal, in his official capacity as Governor of the State of Georgia, through counsel, respectfully submit this brief in support of their motion to dismiss all claims in this action. I. INTRODUCTION AND FACTUAL BACKGROUND 1 Aaron Private Clinic Management, LLC (“APC”), a for-profit addiction treatment center, filed a six-count First Amended Complaint asserting claims based on its alleged association with disabled persons – specifically, prospective patients who are opiate- 1 For purposes of this motion factual allegations of the complaint are accepted as true, legal conclusions and unwarranted deductions of fact are not. See American Dental Ass’n. v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010); Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260 (11th Cir. 2009). Case 1:17-cv-01034-WSD Document 23-1 Filed 05/18/17 Page 1 of 31 2 addicted – under section 504 of the Rehabilitation Act, 29 U.S.C. § 793, and Title II of the Americans with Disabilities Act, 42 U.S.C. § 12101 (“ADA”). See ECF 19 (“FAC”) at 1. As amended, the lawsuit challenges: (1) the 2016 Georgia law that enacted “[a] temporary moratorium on the acceptance of new applications for licensure of narcotic treatment programs authorized under this chapter ….” see O.C.G.A. § 26-5-21(e) (“Licensing Moratorium”); and (2) a 2017 Georgia law, the Narcotic Treatment Programs Enforcement Act (“NTPEA”), see O.C.G.A. § 26-5-40, et seq., which supersedes the Licensing Moratorium and provides, inter alia, for Georgia’s Department of Community Health to establish minimum standards of quality and services for narcotic treatment programs and annual or biannual open enrollment periods for program applications. 2 Counts One through Four of the FAC claim that the Licensing Moratorium and the NTPEA are facially invalid and discriminatory under the Rehabilitation Act and Title II of the ADA. FAC ¶¶ 56-77. Counts Five and Six claim that “the State of Georgia’s actions and disparate treatment . . . cause disproportionate impact to APC and the disabled persons APC intends to serve.” Id. ¶¶ 78-85. As shown herein, APC’s claims fail because it lacks standing to assert claims under the Rehabilitation Act and Title II of the ADA and/or because its claims are not 2 By its terms, the Licensing Moratorium is effective only from June 1, 2016 until June 30, 2017; in turn, the NTPEA provides for an “annual or biannual open enrollment period to accept applications for narcotic treatment programs,” the first of which “shall be held December 1, 2017, through December 31, 2017….” O.C.G.A. § 26-5-46(a), (d). Case 1:17-cv-01034-WSD Document 23-1 Filed 05/18/17 Page 2 of 31 3 cognizable thereunder. This Court’s analysis of associational discrimination claims in the recent decision in Todd v. Carstarphen, 2017 U.S. Dist. LEXIS 22813 (N.D. Ga. Feb. 17, 2017) (Duffey, Jr., J.), as well as the “zone of interests” test that is used to determine “whether a legislatively conferred cause of action encompasses a particular plaintiff’s claim,” as delineated in Lexmark International, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1387 (2014), compel this result. In addition, the Eleventh Amendment and sovereign immunity bar APC’s claim for money damages under Title II of the ADA. Finally, the FAC fails to state a claim for money damages under the Rehabilitation Act and Title II of the ADA because it does not plausibly plead intentional discrimination as is required for money damages claims under those laws. A. Parties APC is a for-profit company that “intends to meet the standards to establish an OTP [opioid treatment program] in Georgia in accordance with applicable federal state laws and regulations.” FAC ¶ 7. APC “sues on its own behalf and on behalf of its prospective patients who are opiate-addicted, who are qualified disabled under the ADA, and who are prospective patients of APC.” Id. ¶ 8. Defendant Berry is the Commissioner for the Georgia Department of Community Health (“DCH”) and in that capacity “oversees DCH’s Healthcare Facility Regulation Division, the agency that issues licenses for addiction treatment facilities in Georgia.” Id. Case 1:17-cv-01034-WSD Document 23-1 Filed 05/18/17 Page 3 of 31 4 ¶ 9. As Governor, Defendant Deal “has the ultimate authority . . . to direct and control the operation of . . . DCH.” Id. ¶ 10. B. SB 402 and the Licensing Moratorium Georgia’s General Assembly passed SB 402 in the 2015-2016 legislative session. SB 402 provided the following explanation for its passage: With respect to the licensure of narcotic treatment programs in this state, the General Assembly finds that: (1) There is a vital need for narcotic treatment programs that provide adequate medical, counseling, vocational, educational, mental health assessment, and social services to patients enrolled in the narcotic treatment program with the goal of the individual achieving recovery; (2) There is a growing concern as to the numbers and concentration of narcotic treatment programs located in certain parts of this state and that concentration of such narcotic treatment programs is in cities along Georgia’s borders with neighboring states; (3) There are reported and documented increases in heroin addiction and overdoses throughout this state; (4) There is a grave concern over the public’s well-being concerning the potential abuses of methadone and its relationship to geographic proximity, the population being served, and whether patients are receiving adequate treatment; (5) Georgia is eighth in population but third nationally in the number of narcotic treatment programs; and Case 1:17-cv-01034-WSD Document 23-1 Filed 05/18/17 Page 4 of 31 5 (6) There is a need to study the narcotic treatment program licensure requirements and enforcement and other issues that may arise out of this study. 2016 Ga. Laws 343 § 1. To this end, SB 402 amended Chapter 5 of Title 26 of the Georgia Code, to provide for the creation of the State Commission on Narcotic Treatment Programs. See O.C.G.A. § 26-5-21(a). The Commission was empowered to “perform the following by December 31, 2016”: (1) Examine the current narcotic treatment program licensure requirements for adequacy; (2) Assess how the current licensure requirements and enforcement of such requirements meet the purpose of providing adequate medical, counseling, vocational, educational, mental health assessment, and social services to patients enrolled in these programs and how these programs can be assessed for meeting the narcotic treatment program goal of the individual achieving recovery; (3) Determine if the geographic service areas are reasonable and based on an optimal balance between population density and service proximity and whether the sociodemographic in the service area and the projected population to receive services are being considered; (4) Determine the cause and effect of hospital admittance for overdose and incidents of suicide, if any, in relation to the adequate licensure and oversight of these programs; (5) Determine what legislative changes need to be made to licensure requirements of narcotic treatment programs or any other changes to the law to address concerns that arise out of this study; and Case 1:17-cv-01034-WSD Document 23-1 Filed 05/18/17 Page 5 of 31 6 (6) Solicit expert testimony on the efficacy of nonnarcotic, medically assisted treatments for narcotic dependence. O.C.G.A. § 26-5-21(d). 3 Then, subsections (e) through (g) set the parameters of the Licensing Moratorium, as follows: (e) A temporary moratorium on the acceptance of new applications for licensure of narcotic treatment programs authorized under this chapter through June 30, 2017, would provide the General Assembly with time to study the need for any changes to the licensure requirements for the operation of such programs and the enactment of any other additional laws to ensure the safety of Georgia's citizens. New applications for licensure of narcotic treatment programs in this state shall be temporarily suspended starting from June 1, 2016, through and including June 30, 2017, in order to permit the commission to complete its report and recommendations and to permit the General Assembly to act on those recommendations during the 2017 legislative session. (f) Between June 1, 2016, and June 30, 2017, the department shall not accept any new applications for licensure of narcotic treatment programs. (g) The temporary suspension of new applications for licensure of narcotic treatment programs shall not affect applications pending on June 1, 2016, program renewals, program name changes, program location changes, or program ownership changes. O.C.G.A. § 26-5-21(e), (f), (g). 3 Section 26-5-21(h) provides, “The commission shall stand abolished on January 1, 2017.” Case 1:17-cv-01034-WSD Document 23-1 Filed 05/18/17 Page 6 of 31 7 C. SB 88 and the Narcotic Treatment Programs Enforcement Act Georgia’s General Assembly passed SB 88 in the 2017-2018 legislative session. 4 SB 88 further amended Chapter 5 of Title 26 of the Georgia Code, and is known as the Narcotic Treatment Programs Enforcement Act or NTPEA. O.C.G.A. § 26-5-40, et seq. The NTPEA supersedes the Licensing Moratorium and provides, inter alia, for Georgia’s Department of Community Health to establish minimum standards of quality and services for narcotic treatment programs and an annual or biannual open enrollment period for applications for such programs. O.C.G.A. §§ 26-5-42, 26-5-46. The NTPEA provides that DCH “shall create and promulgate reasonable and necessary minimum standards of quality and services for narcotic treatment programs,” O.C.G.A. § 26-5-42, and that these minimum standards must include at least the following areas related to the provision of safe and effective treatment: facilities; equipment; staff; content and quality of services; intake, discharge and aftercare; referral to other appropriate agencies; continuing evaluation of effectiveness of treatment programs; record maintenance; formal plan of cooperation with other State programs to allow for continuity of care for drug dependent persons; and criteria for providing priority of access to services and admissions to programs for drug dependent pregnant females, see O.C.G.A. § 26-5- 42(1)–(10). 4 SB 88 went into effect upon its signing by Governor Deal on May 4, 2017. Case 1:17-cv-01034-WSD Document 23-1 Filed 05/18/17 Page 7 of 31 8 The NTPEA also has provisions related to licensing of narcotic treatment programs, and applications for same. Again, following sequentially the Licensing Moratorium which ends on June 30, 2017, it provides for an “annual or biannual open enrollment period to accept applications for narcotic treatment programs,” the first of which “shall be held December 1, 2017, through December 31, 2017….” O.C.G.A. § 26- 5-46(a), (d). It requires applicants to attend an information session and submit a letter of intent prior to the open enrollment period. See O.C.G.A. § 26-5-46(b), (c). And it provides for DCH to establish rules and regulations setting forth application requirements and to “establish an application review process committee.” See O.C.G.A. §§ 26-5-44; 26-5-45; 26-5-46; 26-5-47(a). The NTPEA sets forth a number of application requirements. While the FAC (without factual enhancement) calls many of these requirements “arbitrary” and “discriminatory,” in fact they are all rationally related to the operation of narcotic treatment programs. The requirements include, for example: data and details regarding treatment and counseling plans; biographical information and qualifications of owners, medical directors, counselors, and other staff (including prior or other narcotic treatment program experience or ownership); data on currently licensed narcotic treatment programs within the region of the proposed location, and patient levels of such current programs; demographic data on alcohol and drug use, on alcohol- and drug-related Case 1:17-cv-01034-WSD Document 23-1 Filed 05/18/17 Page 8 of 31 9 crimes, and on hospital and emergency department admissions for individuals addicted to opioids in the program location; evidence of the applicant seeking community input and also of contacting law enforcement and drug court entities within the region; a narrative description of adjoining businesses and occupancies within 200 feet of the proposed facility, including transportation and access information; and a description of the facility staff and patient parking. See O.C.G.A. § 26-5-47. The NTPEA provides that, prior to DCH issuing a license for any narcotic treatment program, the program “shall demonstrate” compliance with state and federal laws and regulations, compliance with applicable standards of practice, program structure for successful delivery, and the program’s impact for the applicable population. See O.C.G.A. § 26-5-48(a). But the NTPEA further provides that the DCH “shall issue a license” for a narcotic treatment program that meets the rules and regulations for such programs, where “the licensing of such program does not exceed four licensed treatment programs per region pursuant to subsection (h) of this code section.” See O.C.G.A. § 26- 5-48(b). The referenced subsection (h) establishes 49 such regions, see O.C.G.A. § 26-5- 48(h), such that upon enactment the NTPEA contemplates at least 196 narcotic treatment programs statewide. The NTPEA also provides that DCH “shall establish” a review process to determine if waivers shall be granted for additional programs in a region with four or more licensed programs, and gives DCH authority to determine the requirements Case 1:17-cv-01034-WSD Document 23-1 Filed 05/18/17 Page 9 of 31 10 for, and to grant, such waivers. See O.C.G.A. § 26-5-48(f). D. APC’s Facial Invalidity and Discrimination Claims In support of Counts One through Four, APC alleges that the Licensing Moratorium “bars DCH from accepting new licenses for addiction treatment facilities serving the disabled from June 30, 2016 to June 30, 2017,” and the NTPEA, which it calls the “Licensing Cap,” “extends the . . . block on all new licenses for addiction clinics through December 1, 2017.” FAC ¶ 47-48. It asserts that the NTPEA places “arbitrary restrictions and burdens” on addiction clinics but “not similar medical clinics serving the non-disabled.” Id. ¶ 49. It also asserts that the NTPEA “places arbitrary geographical and concentration limitations only upon addiction clinics and not similar medical clinics serving the non-disabled.” Id. ¶ 50. Based on these allegations, APC concludes, the Licensing Moratorium and NTPEA are “overtly discriminatory, and facially invalid, under the Rehabilitation Act and the ADA.” Id. ¶ 52. Counts One and Two allege simply that the laws “impose upon OTP clinics unreasonable, discriminatory requirements not imposed on similar businesses and violate Section 504 of the Rehabilitation Act,” and are “facially invalid and violate Title II of the ADA.” Id. ¶¶ 60, 68. Counts Three and Four allege simply that the laws are “evidence of the State of Georgia’s intentional discrimination against the disabled, and those attempting to treat them, in violation of the ADA and the Rehabilitation Act.” Id. ¶ Case 1:17-cv-01034-WSD Document 23-1 Filed 05/18/17 Page 10 of 31 11 54; see also id. ¶¶ 71-77. 5 Counts Five and Six allege simply that “the State of Georgia’s actions and disparate treatment violate [the RA and ADA and] cause disparate impact to APC and the disabled persons APC intends to serve.” Id. ¶¶ 78-85. APC alleges it has “suffered lost profits,” “sustained economic damages in the form of costs and expenses related to the delay in opening its clinic,” and that “APC, and the persons it seeks to serve, have sustained stigmatic injury.” Id. ¶¶ 86-88. APC seeks a finding and a declaration that the Licensing Moratorium and NTPEA are invalid and violate the Rehabilitation Act and Title II of the ADA, a permanent injunction enjoining further violation of these laws “by denying or delaying APC the ability to locate an OTP clinic in the State of Georgia,” and monetary relief including attorney fees and costs. Id. at 22. 5 The FAC does not allege that APC attempted to apply for a license and was denied; and if it did apply, it does not allege the date of its application. See O.C.G.A. § 26-5-21(e) (suspending licensure applications from June 1, 2016 to June 30, 2017); see also O.C.G.A. § 26-5-48(d), (e) (excluding from new application requirements those applications submitted before June 1, 2016, and providing programs licensed before June 30, 2017 are not subject to region limits). Instead, APC alleges in a general manner only that the Licensing Moratorium “blocked and unduly burdened expansion in treatment for opioid addiction in Georgia.” FAC ¶ 46. Case 1:17-cv-01034-WSD Document 23-1 Filed 05/18/17 Page 11 of 31 12 II. ARGUMENT AND CITATION TO AUTHORITY A. APC Lacks Standing Under the ADA and the Rehabilitation Act 6 All of the Counts fail because APC lacks standing, or alternatively does not assert cognizable claims, under the Rehabilitation Act and Title II of the ADA. Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. A regulation promulgated pursuant to Title II further provides that “[a] public entity shall not exclude or otherwise deny equal services, programs, or activities to an individual or entity because of the known disability of an individual with whom the individual or entity is known to have a relationship or association.” 28 C.F.R. § 35.130(g). APC claims that “Defendants are qualifying public entities within the meaning of the ADA,” and that “APC’s prospective patients are qualified individuals with disabilities within the meaning of the ADA.” FAC ¶¶ 64-65. APC attempts to sue on its own behalf, but it does not claim to be a qualified individual with a disability; for this reason, it also sues “on behalf of its prospective patients who are opiate-addicted, [and] who are disabled under the ADA.” Id. ¶ 8; see 42 U.S.C. § 12132; 28 C.F.R. § 35.130(g). 6 The same standards govern discrimination claims under the Rehabilitation Act and the ADA. See Allmond v. Akal Sec., Inc., 558 F.3d 1312, 1316 n.3 (11th Cir. 2009). Case 1:17-cv-01034-WSD Document 23-1 Filed 05/18/17 Page 12 of 31 13 While such associational standing is permissible under Titles I and III, see, e.g., McCullum v. Orlando Reg’l Healthcare Sys., Inc., 768 F.3d 1135, 1141-42 (11th Cir. 2014), claims under Title II are distinct. In a recent decision, this Court found “that Title II protects only ‘individual[s] with a disability.’” Todd v. Carstarphen, No. 1:16-CV- 3729-WSD, 2017 U.S. Dist. LEXIS 22813, *53 (N.D. Ga. Feb. 17, 2017) (quoting 42 U.S.C. § 12132). In other words, “associational discrimination claims are not cognizable under Title II of the ADA.” Id. at *54. This Court in Todd conducted its analysis pursuant to Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). 2017 U.S. Dist. LEXIS 22813, at *50-53. It reasoned that while the cited enabling regulation, 28 C.F.R. § 35.130(g), “purports to prohibit discrimination against nondisabled individuals because of their relationship with a disabled person,” “it ‘plainly contradict[s] the statute [42 U.S.C. § 12132]’ and is not enforceable.” Id. at *47, 53 (quoting Shotz v. City of Plantation, 344 F.3d 1161, 1179 (11th Cir. 2003)). Moreover, “[o]ther courts have hinted, without deciding, that 28 C.F.R. § 35.130(g) may exceed the scope of the ADA provision on which it is based.” Id. at *54 n.57 (collecting cases). On this basis, this Court dismissed Title II discrimination claims by several nondisabled children whose standing relied upon association with their disabled mother, holding squarely “that associational discrimination claims are not cognizable under Title II of the ADA.” Id. at *46-47, *54. Case 1:17-cv-01034-WSD Document 23-1 Filed 05/18/17 Page 13 of 31 14 Moreover, as this Court also held in Todd, such claims also are not cognizable under section 504 of the Rehabilitation Act, id. at *54-56. While noting that “[t]he Eleventh Circuit has not addressed the viability of Title II associational discrimination claims under the Rehabilitation Act,” this Court in Todd, “applying the plain language of the statute, [found] that the Rehabilitation Act does not protect nondisabled individuals from discrimination in the Title II context.” Id. at *56 (reasoning that “claims under the Rehabilitation Act mirror those under the specific provision of the ADA at issue”). 7 Thus, in Todd, the nondisabled children’s associational discrimination claims were dismissed as not cognizable under the Rehabilitation Act. Id. Here, APC is not an “individual with a disability,” and although it describes prospective patients, no such individuals are parties to this action. Thus, in order to sustain Counts Two and Four, APC must establish associational standing on behalf of its prospective patients. While the associational standing APC requires may be permissible under Titles I or III, see, e.g., McCullum, 768 F.3d at 1141–42, it is “not cognizable under 7 This Court in Todd noted a different outcome in MX Grp., Inc. v. City of Covington, 293 F.3d 326, 333-35 (6th Cir. 2002), 2017 U.S. Dist. LEXIS 22813, at *56 n.59. Other courts outside of the Eleventh Circuit also have reached different conclusions. See, e.g., New Directions Treatment Servs. v. City of Reading, 490 F.3d 293 (3d Cir. 2007). The Seventh Circuit, however, has reached the same result as this Court in Todd in a case that involved only a claim for money damages, expressly finding in that case that a for-profit business has no standing to claim lost profits or lost business income under the Rehabilitation Act and the ADA. See Discovery House, Inc. v. Consol. City of Indianapolis, 319 F.3d 277, 280 (7th Cir. 2003). Case 1:17-cv-01034-WSD Document 23-1 Filed 05/18/17 Page 14 of 31 15 Title II of the ADA,” Todd, 2017 U.S. Dist. LEXIS 22813, at *54. Therefore, APC lacks standing to assert Counts Two and Four and these claims should be dismissed. See id. Counts One and Three under the Rehabilitation Act should be dismissed for similar reasons. APC acknowledges that the “ADA was built on the Rehabilitation Act,” FAC ¶ 17, and the ADA “express[ly] direct[s] that we must not construe that statute to apply a lesser standard than the standards that apply under the RA [Rehabilitation Act],” McCullum, 768 F.3d at 1143. Where APC is not a disabled individual, and where “the Rehabilitation Act does not protect nondisabled individuals from discrimination in the Title II context,” APC lacks standing to assert Counts One and Three. See Todd, 2017 U.S. Dist. LEXIS 22813, at *56. Counts One and Three also should be dismissed because they are not cognizable under the Rehabilitation Act. See id. Counts Five and Six also fail because they are brought under the same laws as Counts One through Four. Nor may APC rely upon direct standing to assert its claims. Although it alleges injury, such as lost profits, that may bear on the constitutional standing requirements of Article III, see Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (delineating three elements for constitutional standing under Article III: injury-in-fact, traceability, and redressability), it is settled that “the plaintiff must establish that the injury he complains of (his aggrievement, or the adverse effect upon him) falls within the ‘zone of interest’ sought to be protected by the statutory provision whose violation forms the legal Case 1:17-cv-01034-WSD Document 23-1 Filed 05/18/17 Page 15 of 31 16 basis for his complaint.” Air Courier Conference of Am. v. Am. Postal Workers Union AFL-CIO, 498 U.S. 517, 523-24 (1991) (quoting Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 883 (1990)). Article III standing and statutory zones of interests are not coterminous: “Whether a plaintiff comes within the ‘zone of interests’ is an issue that requires [the Court] to determine, using traditional tools of statutory interpretation, whether a legislatively conferred cause of action encompasses a particular plaintiff’s claim.” Lexmark Int’l, Inc., 134 S. Ct. at 1387 (internal quotation marks omitted). Here, APC relies upon legislatively conferred causes of action – Title II of the ADA and section 504 of the Rehabilitation Act – which together proscribe discrimination against qualified individuals with disabilities. 42 U.S.C. § 12132; 29 U.S.C. § 794(a). Using the traditional tools of statutory interpretation, this Court in Todd held “that Title II protects only ‘individual[s] with a disability,’” and that “associational discrimination claims are not cognizable under Title II of the ADA,” or section 504 of the Rehabilitation Act. 2017 U.S. Dist. LEXIS 22813, at *46-47, *53-56 (quoting § 12132). Thus, APC lacks direct standing to assert its claims under these provisions because it falls outside the “zone of interests” sought to be protected by the statutory provisions whose alleged violation forms the basis of the FAC. 8 8 APC has suggested that the concepts of representational or associational standing might permit it to assert the claims in this case. Generally, such standing is found for a protection and advocacy organization the function of which is to advocate for rights of its Case 1:17-cv-01034-WSD Document 23-1 Filed 05/18/17 Page 16 of 31 17 In sum, under the plain language of the Rehabilitation Act and Title II of the ADA, APC lacks standing to assert any of its claims and none of its claims are cognizable claims. This lawsuit should be dismissed accordingly. B. The Eleventh Amendment and Sovereign Immunity Bar APC’s Money Damages Claims Under Title II of the ADA Counts Two and Four assert claims under Title II of the ADA. With respect to Title II, APC bears the burden to show: (1) that he is a qualified individual with a disability; (2) that he was either excluded from participation in or denied the benefits of a public entity’s services . . . or was otherwise discriminated against by the public entity; and (3) that the exclusion, denial of benefit, or discrimination was by reason of the plaintiff’s disability. Bircoll v. Miami-Dade Cty., 480 F.3d 1072, 1083 (11th Cir. 2007). “The elements of a Title II claim may be further refined, depending on the discrimination theory on which constituents or members. See, e.g., Doe v. Stincer, 175 F.3d 879 (11th Cir. 1999) (applying Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333 (1977)); see also Young Apartments, Inc. v. Town of Jupiter, 529 F.3d 1027 (11th Cir. 2008). To bring such a claim, APC would have to show a sufficiently concrete interest in the outcome of the issue in dispute, a close relation to the third party, and some hindrance to the third party’s ability to protect his or her own interests. See Young Apartments, Inc., 529 F.3d at 1042. APC could not make the latter two showings. In the context of this case it lacks a sufficiently close relation to its prospective patients because the laws in issue are aimed at protecting the health and safety of those patients, whereas APC seeks to overturn, for its own business purposes, the very elements of the laws which provide the protection. Nor does APC allege any hindrance to its prospective patients’ ability to protect their own interests, and it has cited cases which show that such patients are capable of litigating on their own behalf. See, e.g., New Directions Treatment Servs., 490 F.3d at 295. Case 1:17-cv-01034-WSD Document 23-1 Filed 05/18/17 Page 17 of 31 18 the plaintiff relies.” Todd, 2017 U.S. Dist. LEXIS 22813, at *24. For example, “[a] plaintiff can proceed on theories of intentional discrimination, disparate treatment, or failure to make reasonable accommodations.” Id. (quoting Rylee v. Chapman, 316 F. App’x 901, 906 (11th Cir. 2009)). 9 Here, APC appears to rely upon theories of intentional discrimination and disparate treatment. APC’s six enumerated counts do not assert a claim under the Equal Protection Clause of the Fourteenth Amendment. 1. Sovereign Immunity and Title II of the ADA10 The Eleventh Amendment bars damages claims brought against states in federal court, absent a waiver by the state or a valid override by Congress. Kentucky v. Graham, 473 U.S. 159, 169 (1985); see also Fouche v. Jekyll Island State Park Auth., 713 F.2d 518, 1520 (11th Cir. 1983) (including claims against “arms of the state”). A valid override by Congress requires “an unequivocal expression of congressional intent to ‘overturn the constitutionally guaranteed immunity of the several States.’” Penhurst State 9 However, “intentional discrimination is not an element of liability under Title II of the ADA or the RA.” R.W. v. Bd. of Regents, 114 F. Supp. 3d 1260, 1282-83 (N.D. Ga. 2015). Such intent is required for purposes of monetary damages, but not injunctive relief. Id. 10 Defendants do not argue that sovereign immunity bars Counts One and Three under the Rehabilitation Act where, as here, APC has alleged that DCH receives federal funds. See Gaylor v. Ga. Dep’t of Nat. Res., No. 2:11-CV-288, 2012 U.S. Dist. LEXIS 115019, at *21 n.7 (N.D. Ga. Aug. 15, 2012); but see also id. at *21 (noting the issue is preserved for discovery and summary judgment). Case 1:17-cv-01034-WSD Document 23-1 Filed 05/18/17 Page 18 of 31 19 Sch. & Hosp. v. Halderman, 465 U.S. 89, 99 (1984) (quoting Quern v. Jordan, 440 U.S. 332, 342 (1979)). The State of Georgia has not waived its immunity. See Ga. Const. art. 1, § 2, ¶ IX. However, “Congress has clearly stated its intent [to abrogate immunity] under Title II . . . . though courts have long debated the contours of this purported abrogation.” Atchison v. Bd. of Regents, No. 1:13-CV-02922-TCB, 2014 U.S. Dist. LEXIS 189249, at *11-12 (N.D. Ga. Nov. 13, 2014) (citing 42 U.S.C. §§ 12202, 12101(b)(4)). “[T]o determine whether a plaintiff may sue a state for money damages under Title II of the ADA . . . the Court must determine,” id. at *12, on a claim-by-claim basis, (1) which aspects of the State’s alleged conduct violated Title II; (2) to what extent such misconduct also violated the Fourteenth Amendment; and (3) insofar as such misconduct violated Title II but did not violate the Fourteenth Amendment, whether Congress’s purported abrogation of sovereign immunity as to that class of conduct is nevertheless valid. United States v. Georgia, 546 U.S. 151, 159 (2006). With respect to the last step, “[w]here state conduct does not run afoul of the Fourteenth Amendment . . . the third prong of the Georgia analysis requires courts to undertake the City of Boerne congruence and proportionality inquiry to determine whether abrogation under Title II is a valid exercise of Congressional power under section 5 [of the Fourteenth Amendment].” Atchison, 2014 U.S. Dist. LEXIS 189249, at *13 (citing City of Boerne v. Flores, 521 U.S. 507, 520-21 (1997)). In turn, the City of Case 1:17-cv-01034-WSD Document 23-1 Filed 05/18/17 Page 19 of 31 20 Boerne inquiry requires a court to determine: (1) the constitutional right or rights that Congress sought to enforce when it enacted the ADA; (2) whether there was a history of unconstitutional discrimination to support Congress’s determination that prophylactic legislation was necessary; and (3) whether Title II is an appropriate response to this history and pattern of unequal treatment. Id. at *29 n.19 (citing City of Boerne, 521 U.S. at 519). 2. APC Fails to Meet the Second and Third Prongs of the Georgia Analysis, Including the City of Boerne Inquiry With respect to the second prong requiring a violation of the Fourteenth Amendment, APC fails to assert a claim under the Equal Protection Clause. Such failure precludes APC from arguing that sovereign immunity should not apply. See Goodman v. Ray, 449 F.3d 1152, 1153 (11th Cir. 2006) (requiring that the plaintiff “specify in separate counts [ ] what specific conduct he alleges violates the Eighth and Fourteenth Amendments . . . [and] what specific conduct, if any, allegedly violates Title II of the ADA but does not violate the Eighth and Fourteenth Amendments”), enforcing Georgia, 546 U.S. 151; Miller v. King, 449 F.3d 1149, 1151 (11th Cir. 2006) (“It is unclear from [the plaintiff’s] pleadings whether he asserts any Title II claims premised on conduct that does not independently violate the Eighth Amendment, which makes the analysis required by Georgia impossible.”). Moreover, APC cannot remedy its failure to meet the second prong because it cannot show that there is no rational basis for the Licensing Moratorium or the NTPEA. Case 1:17-cv-01034-WSD Document 23-1 Filed 05/18/17 Page 20 of 31 21 Legislation affecting disabled persons receives rational-basis review under the Equal Protection Clause, Bd. of Trs. v. Garrett, 531 U.S. 356, 366-67 (2001); see, e.g., Gaylor v. Ga. Dep’t of Natural Res., No. 2:11-CV-288, 2012 U.S. Dist. LEXIS 115019, at *13 (N.D. Ga. Aug. 15, 2012), and “the burden is upon the challenging party to negative ‘any reasonably conceivable state of facts that could provide a rational basis for the classification.’” Garrett, 531 U.S. at 367 (quoting Heller v. Doe, 509 U.S. 312, 320 (1993)). APC cannot meet that burden here, where the Licensing Moratorium and its enacting legislation (SB 402 quoted above) list more than six bases for its limited licensing restriction on narcotic treatment programs. See O.C.G.A. § 26-5-21(e); 2016 Ga. Laws 343 § 1(1)-(6). For example, “concern as to the numbers and concentration of narcotic treatment programs located . . . in cities along Georgia’s borders,” rather than where Georgia citizens need such treatment, offers a rational relationship between a temporary moratorium on licensure of new narcotics treatment programs and the legitimate governmental purpose to “provide the General Assembly with time to study the need for any changes to the licensure requirements.” 2016 Ga. Laws 343 § 1(2); O.C.G.A. § 26-5-21(e); see Heller, 509 U.S. at 320 (“Such a classification cannot run afoul of the Equal Protection Clause if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose.”). Likewise, the Case 1:17-cv-01034-WSD Document 23-1 Filed 05/18/17 Page 21 of 31 22 NTPEA provisions for applications and licensing are rationally related to protection of the health of prospective patients; and its provisions for regional distribution of licenses, with DCH having the ability to waive the regional limits, rationally show an effort to ensure that all Georgia citizens have access to this type of care. Where APC addresses none of these rational bases, and where the FAC fails to allege a claim for violation of the Equal Protection Clause, APC cannot satisfy the second prong of the Georgia analysis concerning the Fourteenth Amendment. See Georgia, 546 U.S. at 159. Next, APC fails to meet the third prong because it cannot show that purported abrogation of immunity is valid in the context of a for-profit business entity (here, a clinic seeking to establish an OTP) that intends to provide health services to disabled individuals. See id.; City of Boerne, 521 U.S. at 519. The first inquiry under City of Boerne requires a determination of the relevant right that Congress sought to enforce when it enacted the ADA. 521 U.S. at 519. Although Congress sought to enforce access to “health services” in general when it enacted the ADA, see Tennessee v. Lane, 541 U.S. 509, 529 (2004) (quoting 42 U.S.C. § 12101(a)(3)), APC alleges no particular constitutional right of a for-profit business entity to provide health services to disabled individuals. Thus, APC cannot meet the first inquiry under City of Boerne. See 521 U.S. at 519. With respect to the second inquiry, Defendants acknowledge “the Eleventh Circuit has twice construed Lane as foreclosing this prong’s analysis due to the Case 1:17-cv-01034-WSD Document 23-1 Filed 05/18/17 Page 22 of 31 23 overwhelming nature of disability discrimination in the public fora.” Gaylor, 2012 U.S. Dist. LEXIS 115019, at *16; see also Lane, 541 U.S. 509. Lastly, the third inquiry under City of Boerne is to determine “whether Title II is an appropriate response to this history and pattern of unequal treatment.” Lane, 541 U.S. at 530. “[T]he congruence and proportionality of the remedies in Title II should be judged on an individual or ‘as-applied’ basis in light of the particular constitutional rights at stake in the relevant category of public services.” Ass’n for Disabled Ams., Inc. v. Fla. Int’l Univ., 405 F.3d 954, 958 (11th Cir. 2005). “[T]he Courts in Garrett, Lane, and United States v. Georgia all compared the scope of the constitutional rights at issue, the evidence of unconstitutional discrimination in the particular context, and the breadth of the statutory remedy created in order to make this determination.” Nichols v. Ala. State Bar, No. 2:15-CV-179-WMA, 2015 U.S. Dist. LEXIS 49407, at *12 (N.D. Ala. Apr. 15, 2015). Here, in the context of a for-profit business entity’s claimed right to provide health services to disabled individuals, the ADA’s abrogation of Eleventh Amendment immunity for Title II claims exceeds the scope of permissible legislation under the Fourteenth Amendment. First, the putative constitutional right tangentially depends upon associational standing and is protected only by deferential review for a rational basis, which militates against finding the requisite congruence and proportionality. See Lane, Case 1:17-cv-01034-WSD Document 23-1 Filed 05/18/17 Page 23 of 31 24 541 U.S. at 529; Todd, 2017 U.S. Dist. LEXIS 22813, at *53. Nor does the FAC show that unconstitutional discrimination against such providers was considered in enacting the ADA, and Defendants find no such indication in relevant legislative history. See 42 U.S.C. § 12101 (2012); H.R. Rep. No. 101-485 (1990); H.R. Rep. No. 101-596 (1990) (Conf. Rep.). With respect to the breadth of the statutory remedy, “the court looks to the regulations to determine whether the statute is appropriate,” Gaylor, 2012 U.S. Dist. LEXIS 115019, at *18; and here, for the reasons described above, the court in Todd found that “28 C.F.R. § 35.130(g) . . . plainly contradicts the statute and is not enforceable,” 2017 U.S. Dist. LEXIS 22813, at *53; see also id. at *54 n.57 (collecting additional cases that “have hinted, without deciding, that 28 C.F.R. § 35.130(g) may exceed the scope of the ADA provision on which it is based”). Considering these reasons in conjunction with this Court’s finding in Todd, it is clear that the ADA’s purported abrogation of Eleventh Amendment immunity for Title II claims cannot be applied to a for-profit business, such as APC, that claims a right to provide health services to disabled individuals. In sum, APC fails the second and third prongs of the Georgia analysis. See Georgia, 546 U.S. at 159. APC fails the second prong because it does not assert a claim for violation of the Equal Protection Clause of the Fourteenth Amendment, and because it cannot overcome the rational bases for the Licensing Moratorium or the NTPEA. See id. Case 1:17-cv-01034-WSD Document 23-1 Filed 05/18/17 Page 24 of 31 25 APC fails the third prong because it cannot show that applying Title II in the context of this case is within the scope of permissible legislation under the Fourteenth Amendment. See id.; City of Boerne, 521 U.S. at 519. Therefore, APC may not seek compensatory damages under Title II of the ADA because APC fails to show that Congress abrogated sovereign immunity in the context implicated here. C. APC Cannot Recover Money Damages for Any of Its Claims Because the Complaint Lacks Plausible Fact-Based Allegations of Intentional Discrimination; and This Court Should Not Enter Declaratory or Injunctive Relief In The Context of this Case “[A] plaintiff must demonstrate standing separately for each form of relief sought.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC) Inc., 528, U.S. 167, 185 (2000). Preliminarily, where APC fails to demonstrate associational standing to assert any of its claims for the reasons provided above, it is not entitled to any relief. See id. Moreover, APC fails to meet additional requirements necessary for compensatory damages and injunctive relief. 1. APC Is Not Entitled to Compensatory Damages “To prevail on a claim for compensatory damages under either the RA [Rehabilitation Act] or the ADA, Plaintiff must show that Defendant violated his rights under the statutes and did so with discriminatory intent. Plaintiff may prove discriminatory intent by showing that Defendant was deliberately indifferent to his Case 1:17-cv-01034-WSD Document 23-1 Filed 05/18/17 Page 25 of 31 26 statutory rights.” 11 R.W., 114 F. Supp. 3d at 1288; Boynton v. City of Tallahassee, 650 F. App’x 654, 658-59 (11th Cir. 2016). “Similarly, intentional discrimination is required to recover non-economic compensatory damages under § 504 of the RA.” R.W., 114 F. Supp. 3d at 1288. To establish intentional discrimination shown by deliberate indifference, “a plaintiff must show that the defendant ‘knew that harm to a federally protected right was substantially likely’ and ‘failed to act on that likelihood.’” McCullum, 768 F.3d at 1147. “In other words, ‘good faith attempts to pursue legitimate ends are not sufficient to support an award of compensatory damages under [the RA].’” Badillo v. Thorpe, 158 F. App’x 208, 214 (11th Cir. 2005) (quoting Wood v. President Trs. of Spring Hill Coll., 978 F.2d 1214, 1219 (11th Cir. 1992)). “This is an exacting standard, which requires more than a showing of gross negligence.” R.W., 114 F. Supp. 3d at 1288. Here, as previously stated, APC seeks economic damages for “lost profits,” “costs and expenses related to the delay in opening its clinic,” as well as non-economic compensatory damages for “stigmatic injury” suffered by APC and prospective patients. FAC ¶¶ 86-88. The section of the FAC dedicated to intentional discrimination states, in 11 “[P]laintiffs claiming intentional discrimination under the RA must show that they were discriminated against ‘solely by reason of [their] disability,’ but the ADA requires only the lesser ‘but for’ standard of causation.” Schwarz, 544 F.3d at 1212 n.6 (citations omitted). Where, as here, a plaintiff “fails to state [a] claim for discrimination under Title II, [he] necessarily falls short of the even higher standard imposed by the Rehabilitation Act.” Atchison, 2014 U.S. Dist. LEXIS 189249, at *16. Case 1:17-cv-01034-WSD Document 23-1 Filed 05/18/17 Page 26 of 31 27 its entirety: “The Licensing Moratorium and License Cap are evidence of the State of Georgia’s intentional discrimination against the disabled, and those attempting to treat them, in violation of the ADA and the Rehabilitation Act.” Id. ¶ 54. APC’s conclusory allegation of intentional discrimination fails to support a claim for monetary damages. See Randall v. Scott, 610 F.3d 701, 709-10 (11th Cir. 2010) (explaining that a legal conclusion must be supported by factual allegations to survive a motion to dismiss); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). For example, APC does not allege that either Defendant knew there was any likelihood of harm to rights protected by the ADA and Rehabilitation Act. Nor does the language of the challenged laws support APC’s conclusory allegation, where the Licensing Moratorium’s stated purpose is to “provide the General Assembly with time to study the need for any changes to the licensure requirements,” and “to ensure the safety of Georgia’s citizens,” O.C.G.A. § 26-5-21(e); see also 2016 Ga. Laws 343 § 1(1)-(6) (listing similar concerns); and where the NTPEA’s provisions go directly to these concerns. Such purposes suggest good faith attempts to pursue legitimate ends, not intentional discrimination. See Badillo, 158 F. App’x at 214. Furthermore, the conclusory suggestion of intentional discrimination cannot be squared with the fact that the Licensing Moratorium and NTPEA do not bar all services in the area of narcotic treatment – even now, before additional licenses are issued under the new law, existing clinics and also those clinics Case 1:17-cv-01034-WSD Document 23-1 Filed 05/18/17 Page 27 of 31 28 with applications pending before enactment may continue to provide services to disabled persons. Therefore, APC’s failure to allege intentional discrimination with plausible supporting fact particulars warrants dismissal of its claims for monetary damages under the ADA and the Rehabilitation Act. These deficiencies are not cured by the inclusion of Counts Five and Six which purport to assert disparate impact claims. Merely asserting disparate impact should not be a way around the requirement of showing intentional discrimination; rather, a substantial disparate impact can be a way of showing intentional discrimination where there are other indicia of such intent such as a history of discriminatory official action, or procedural or substantive departures from norms generally followed, or discriminatory statements in legislative history. See, e.g., Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977); Elston v. Talladega Cty. Bd. of Educ., 997 F.2d 1394, 1406 (11th Cir. 1993). Here, the FAC contains perfunctory assertions of “disproportionate impact,” FAC ¶¶ 79, 83, with no factual enhancement showing any other indicia of intentional discrimination. 12 12 Likewise, an equal protection claim can be established by allegations, and ultimately proof, of different treatment of similarly situated comparators, but the comparators must be similarly situated in all relevant respects. See, e.g., Campbell v. Rainbow City, 434 F.3d 1306, 1314 (11th Cir. 2006); Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1202-03 (11th Cir. 2007). The FAC does not identify comparators or plead facts suggesting the existence of comparators that are similarly situated in all relevant respects. Case 1:17-cv-01034-WSD Document 23-1 Filed 05/18/17 Page 28 of 31 29 2. APC Is Not Entitled to Declaratory or Injunctive Relief APC seeks relief presumably under the Declaratory Judgment Act, 28 U.S.C. §§ 2201 et seq. “Since its inception, [this Act] has been understood to confer on federal courts unique and substantial discretion in deciding whether to declare the right of litigants.” Wilton v. Seven Falls Co., 515 U.S. 277, 284 (1995). The Supreme Court has emphasized that the “Act provides that a court ‘may declare the rights and other legal relations of any interested party,’ not that it must do so.” MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 136 (quoting 28 U.S.C. § 2201). The Court said that the Act “has long been understood to confer on federal courts ‘unique and substantial discretion in deciding whether to declare the rights of litigants.’” Id. (quoting Wilton, 515 U.S. at 289-86). This Court should not enter declaratory relief in this case as APC does not have a claim under the Rehabilitation Act or Title II of the ADA as Todd and Lexmark show. The Seventh Circuit’s decision in Discovery House further supports a holding that APC, a for-profit business, has no standing or place to assert a claim for lost business income under these laws which are designed to protect individuals with disabilities. That leaves only the possibility of declaratory and injunctive relief based on the Licensing Moratorium (prospective relief under which is now mooted), and the NTPEA, which allow continuation of existing programs and permit applications for additional narcotic treatment programs. Because the gist of this lawsuit is lost business opportunity, because Case 1:17-cv-01034-WSD Document 23-1 Filed 05/18/17 Page 29 of 31 30 the Rehabilitation Act and Title II of the ADA are designed to protect individuals with disabilities rather than business interests, and further because there are no plausible, fact- based allegations that Georgia citizens are hindered in obtaining narcotic treatment because of the challenged laws – instead there are only allegations that APC cannot at this time be one of the for-profit providers of such treatment – declaratory and injunctive relief should not be entered. III. CONCLUSION For the reasons stated herein, Defendants respectfully request that the FAC and all claims in this action be dismissed. Respectfully submitted, CHRISTOPHER M. CARR 112505 Attorney General KATHLEEN M. PACIOUS 558555 Deputy Attorney General s/ Roger A. Chalmers 118720 ROGER A. CHALMERS Senior Assistant Attorney General PLEASE ADDRESS ALL COMMUNICATIONS TO: s/ Bradley D. Harder 117880 Roger A. Chalmers BRADLEY D. HARDER State Law Department Assistant Attorney General 40 Capitol Square SW Atlanta, GA 30334 Tel: (404) 463-8850 Fax: (404) 651-5304 Email: rchalmers@law.ga.gov Case 1:17-cv-01034-WSD Document 23-1 Filed 05/18/17 Page 30 of 31 CERTIFICATE PURSUANT TO LOCAL RULE 7.1.D I certify that the foregoing brief conforms to the requirements of L.R. 5.1C. The brief is prepared in 14 point Times New Roman font. s/ Roger A. Chalmers CERTIFICATE OF SERVICE I certify that I have this day served the foregoing pleading with the Clerk of Court using the CM/ECF system which will automatically send email notification of such filing to the following attorneys of record: James Anderson Dunlap, Jr. I further certify that I have mailed by United States Postal Service the document to the following non-CM/ECF participants: NONE. This 18th day of May, 2017. s/ Roger A. Chalmers Case 1:17-cv-01034-WSD Document 23-1 Filed 05/18/17 Page 31 of 31