Case 3:09-cv JMM Document 25 Filed 02/11/2010 Page 1 of 26 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

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1 Case 309-cv JMM Document 25 Filed 02/11/2010 Page 1 of 26 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA MELINDA LAMBERSON REYNOLDS, Plaintiff v. COMMONWEALTH OF PENNSYLVANIA, et al., Defendants CIVIL ACTION NO. 09-CV-1492 (Judge Munley) Electronically Filed BRIEF FOR PLAINTIFF MELINDA LAMBERSON REYNOLDS IN OPPOSITION TO DEFENDANTS MOTION TO DISMISS THE AMENDED COMPLAINT Dated February 11, 2009 Lawrence D. Berger Shepherd, Finkelman, Miller & Shah, LLP 35 East State Street Media, PA (610) (phone) (610) (fax) LBERGER@sfmslaw.com ( ) PA Michael Churchill Public Interest Law Center of Philadelphia 1709 Benjamin Franklin Parkway, 2d Floor Philadelphia, PA (215) (phone) (215) (fax) MChurchill@pilcop.org ( ) PA Attorneys for Plaintiff

2 Case 309-cv JMM Document 25 Filed 02/11/2010 Page 2 of 26 Table of Contents PRELIMINARY STATEMENT...1 COUNTER-STATEMENT OF FACTS This Action is Not a Collateral Attack On A Final Order By The State Board Of Nursing Defendants Sovereign Immunity Argument Does Not Apply To Plaintiff s Claim For Equitable Relief From State Officials Under The ADA Or To Plaintiff s Claim Against State Agencies Under The Rehabilitation Act Quasi-Judicial Immunity Does Not Protect The Board Of Nursing Members From Liability For Their Methadone Exclusion Policy The Amended Complaint Adequately Alleges Commissioner Merenda s Responsibility For Carrying Out The Methadone Exclusion Policy....6 ARGUMENT The Court Should Not Abstain Reynolds Claims for Injunctive Relief Are Not Barred By The Eleventh Amendment Reynolds Claims for Damages Are Not Barred By The Eleventh Amendment...11 a. Congress Has Validly Abrogated The State s Immunity In Title II Of The ADA b. By Accepting Federal Funds, The State Has Waived Its Immunity From Claims Under The Rehabilitation Act The Individual Defendants May Be Held Liable For Damages Resulting From The Methadone Exclusion Policy Because Reynolds Claims Are Directed At The Methadone Exclusion Policy, And Not The Administrative Proceeding, The Members Of The Board Of Nursing Are Not Immune Reynolds Has Adequately Alleged A Claim Against Commissioner Merenda...18

3 Case 309-cv JMM Document 25 Filed 02/11/2010 Page 3 of 26 CONCLUSION...19 ii

4 Case 309-cv JMM Document 25 Filed 02/11/2010 Page 4 of 26 Cases Table of Authorities Alsbrook v. City of Maumelle, 184 F.3d 999 (8th Cir. 1999), cert. dismissed, 529 U.S (2000); Ashcroft v. Iqbal, --- U.S. ---, 129 S.Ct (2009) Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356 (2001)... 11, 12 Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976)... 7 Corley v. United States, --- U.S. ---, 129 S.Ct (2009) County of Allegheny v. Frank Mashuda Co., 360 U.S. 185 (1959)... 7 Disabled in Action of Pennsylvania v. Southeastern Pennsylvania Transportation Auth., 539 F.3d 199 (3d Cir. 2008) Doe v. Connecticut Dep t. of Health Services, 75 F.3d 81 (2d Cir. 1996)... 8, 9 Dotzel v. Ashbridge, 438 F.3d 320 (3d Cir. 2006) Emerson v. Thiel College, 296 F.3d 184 (3d Cir. 2002) Ex parte Young, 209 U.S. 123 (1908)... 5, 11 Garcia v. S.U.N.Y Health Sciences Center, 280 F.3d 98 (2d Cir. 2001)... 14, 17 Gwynedd Properties, Inc. v. Lower Gwynedd Township, 970 F.2d 1195 (3d Cir. 1992) 7, 8, 10, 11 Hason v. Medical Board of California, 279 F.3d 1167 (9th Cir. 2002), cert. dismissed, 538 U.S. 958 (2003)... 11, 14 Hibbs v. Winn, 542 U.S. 88 (2004) Koslow v. Pennsylvania, 302 F.3d 161 (3d Cir. 2002), cert. denied, 537 U.S (2003).. 15, 17 Lehman v. Pennsylvania State Police, 576 Pa. 365, 839 A.2d 265 (2003)... 9 Marks v. Stinson, 19 F.3d 873 (3d Cir.1994)... 7 Middle Creek Bible Conference, Inc. v. Dep t. of Environmental Resources, 165 Pa,Cmwlth. 203, 645 A.2d 295 (1994)... 9 iii

5 Case 309-cv JMM Document 25 Filed 02/11/2010 Page 5 of 26 Middlesex County Ethics Committee v. Garden State Bar Ass n., 457 U.S. 423 (1982)... 8 New Orleans Public Service, Inc. v. Council of New Orleans, 491 U.S. 350 (1989)... 7 Ohio Civil Rights Comm n v. Dayton Christian Schools, Inc., 477 U.S. 619 (1986) Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987) Roe v. Johnson, 334 F.Supp.2d 415 (S.D.N.Y. 2004)... 13, 17 Tennessee v. Lane, 541 U.S. 509 (2004)... 12, 13, 14, 15 United States v. Georgia, 546 U.S. 151 (2006) Walker v. Snyder, 213 F.3d 344 (7th Cir. 2000), cert. denied, 531 U.S (2001) Younger v. Harris, 401 U.S. 27 (1971)... 5, 8, 10 Zimmerman v. Biehler, 2009 WL (M.D.Pa. 2009) Constitution and Statutes United States Constitution, 11th Amendment... 5, 11, 12, 13 United States Constitution, 14th Amendment... 12, 13 Americans with Disabilities Act, 42 U.S.C , et seq.... 1, 5, 11, 16 Americans with Disabilities Act, Section 12101(a)(4), 42 U.S.C (a)(4) Americans with Disabilities Act, Section 12101(a)(5), 42 U.S.C (a)(5) Americans with Disabilities Act, Section 12101, 42 U.S.C Americans with Disabilities Act, Section 12132, 42 U.S.C , 16, 17 Rehabilitation Act, 42 U.S.C. 2000d-7(a)(1) Rehabilitation Act, Section 504, 29 U.S.C , 5, 11, 15 Rules Federal Rules of Civil Procedure, Rule 54(c)... 4 Regulations 1 Pa. Code iv

6 Case 309-cv JMM Document 25 Filed 02/11/2010 Page 6 of 26 PRELIMINARY STATEMENT By their motion to dismiss, as by their unpublished methadone exclusion policy, defendants are continuing their effort to avoid the substantive issues. Of course, defendants have the right to present procedural objections, but to decide those objections, this Court needs to know what this case is about. Simply stated Should a nursing licensee like plaintiff Melinda Lamberson Reynolds ( Reynolds ), who suffers from the disability of chronic opioid drug dependency, be permitted to maintain her license while participating in a methadone maintenance program to treat her drug dependency? and Does defendants methadone exclusion policy deny Reynolds a reasonable accommodation to which she is entitled under the Americans with Disabilities Act ( ADA ) and the Rehabilitation Act? Because of defendants discriminatory policy as applied to her since the decision of defendants Hearing Examiner Reynolds has already been unable to work as a nurse for more than two years. Defendants administrative process did not address this sub rosa policy. It is noteworthy that the word methadone does not even appear in defendants Brief until page 9, and appears only one more time after that. But defendants do not deny, in their Brief, that chronic opioid drug dependency is a disability within the meaning of the ADA 1 and Section 504 of the Rehabilitation Act. 2 Defendants also do not deny that methadone maintenance treatment is a reasonable accommodation for this disability. By filing a motion to 1 42 U.S.C , et seq U.S.C. 794.

7 Case 309-cv JMM Document 25 Filed 02/11/2010 Page 7 of 26 dismiss, defendants also admit that the safety and efficacy of methadone maintenance treatment are well-established, and have been endorsed by such authorities as an expert panel convened by the National Institutes of Health, and the Office of National Drug Control Policy in the Executive Office of the President. Amended Complaint, Instead of denying or addressing any of the substance of plaintiffs claims, defendants chief argument for dismissal is abstention, and defendants chief argument for abstention is that there was an adequate opportunity in the administrative proceeding for Reynolds to argue her case. But, as discussed below, the effect of the methadone exclusion policy as applied to Reynolds was to reduce formal proceedings before the Board of Nursing to an irrelevant façade, leaving the policy to be carried out in a manner which evaded the formal hearing process and made it impossible for Reynolds to contest the policy (Amended Complaint, 30). For this reason and others discussed below, defendants motion to dismiss should be denied, and defendants should be required to respond to the merits of the Amended Complaint COUNTER-STATEMENT OF FACTS 1. This Action is Not a Collateral Attack On A Final Order By The State Board Of Nursing. Contrary to defendants Brief, this action is not a collateral attack on a final order by the State Board of Nursing. (Defendants Brief at 1.) It is, however, a direct attack on the methadone exclusion policy applied to Reynolds after that Order was entered. This included (a) refusing to license her because of her participation in a methadone maintenance program; and (b) refusing to approve methadone maintenance treatment providers. Amended Complaint, 30. All this happened to Reynolds after the Board of Nursing ( BoN ) Order was entered. 2

8 Case 309-cv JMM Document 25 Filed 02/11/2010 Page 8 of 26 In fact, as the Amended Complaint makes clear, there is a complete disconnect here between what happened at the BoN hearing, and what happened after the hearing. At the hearing, defendants Hearing Examiner found The Respondent's position [that she feels it necessary to continue her methadone treatment ] is understandable given her August 2006 evaluation from [defendants expert] Dr. Woody which indicated that Respondent was opioid dependent, but indicated that the Respondent could practice the profession with appropriate monitoring and did not require that Respondent wean herself from methadone as a condition precedent thereto. Adjudication and Order (Exhibit E to the Complaint) at 12 (emphasis added). Reynolds lost her license in spite of this finding, not because of it. It was after the BoN Hearing, and after the August 2007 Order, that the hammer of defendants methadone exclusion policy fell upon Reynolds. Order Defendants have admitted for purposes of this motion that, following the August 2007 Defendants required Reynolds to submit to the dictates of an organization known as A Better Today, a PHMP-approved provider, 3 knowing that A Better Today required all participants to be weaned from methadone. Defendants did this even though their own expert, Dr. Woody, had concluded that Reynolds did not need to be weaned from methadone in order to practice nursing with the requisite skill and safety. Amended Complaint, 44, 67 and 71. Defendants PHMP-approved provider acknowledged that Reynolds would, in all likelihood, resume illegal opiate use if she were prevented from 3 Defendant Pennsylvania Division of Professional Health Monitoring Programs ( PHMP ) administers defendants disciplinary scheme. 3

9 Case 309-cv JMM Document 25 Filed 02/11/2010 Page 9 of 26 receiving methadone maintenance treatment. Amended Complaint, 71, and Exhibit G. 4 More than seven months following the August 2007 Order, defendants Case Manager wrote to Reynolds on March 13, 2008 and stated that her file had been closed until such time as A Better Today reported that she had been weaned from methadone. Amended Complaint, 74, and Exhibit H. Defendants refused to approve any provider of methadone maintenance treatment as a PHMP-approved provider. 5 Amended Complaint, 30, 55, and 66. Reynolds prayer for relief also shows that she is primarily attacking the policy as administered after the hearing, and not the Order. Paragraph A of the prayer for relief requests a declaration that defendants methadone exclusion policy, the policy applied to her after the hearing and Order, is a violation of the ADA and the Rehabilitation Act and therefore void. Paragraph B seeks to enjoin defendants from [r]equiring Reynolds, as a condition to being licensed as a nurse, to submit to the recommendations of or obtain the approval of any party that requires methadone abstinence. 6 Paragraph C requests damages for the harm that Reynolds has suffered as a result of the methadone exclusion policy since the Order was entered. 4 See also Amended Complaint, concerning the correspondence from Reynolds physician to the PHMP Case Manager, stating his medical opinion that Melinda Reynolds should remain on her present medical treatment, that is on methadone maintenance treatment, without interference, and warning of the untoward outcomes that would follow if Reynolds were compelled to discontinue this treatment. 5 See page 3 n. 3. supra. 6 While paragraph B does refer, in part, to the Board of Nursing Order, it also refers to the post-hearing dictates of the A Better Today organization. If the Court determines that Younger abstention, discussed infra, bars any relief that relates to the Order itself, then Rule 54(c), F.R.Civ.P., permits the Court to mold the relief appropriately. 4

10 Case 309-cv JMM Document 25 Filed 02/11/2010 Page 10 of 26 Unlike the cases cited by defendants at page 7 of their Brief, the focus of Reynolds claim is not on the state administrative proceeding, 7 but rather on defendants subsequent application to her of an extra-judicial methadone exclusion policy. Reynolds claim does not challenge the state s right to license nurses, nor the state s right to conduct administrative hearings about individual nurses, or any other state interest which is entitled to protection under the abstention doctrine of Younger v. Harris, 401 U.S. 27 (1971). Rather, it challenges the right of the defendants including the state, its agencies, and the individual defendants, to covertly and extrajudicially manipulate the licensing apparatus in a discriminatory fashion which evades and escapes judicial review. 2. Defendants Sovereign Immunity Argument Does Not Apply To Plaintiff s Claim For Equitable Relief From State Officials Under The ADA Or To Plaintiff s Claim Against State Agencies Under The Rehabilitation Act. As discussed below in the Argument section, the Eleventh Amendment and the doctrine of sovereign immunity do not bar plaintiff s requests for declaratory and equitable relief against the individual defendants under the well-established doctrine of Ex parte Young, 209 U.S. 123 (1908). In addition, Congress has validly abrogated the immunity of the states from damage claims under Title II of the ADA. As for the Rehabilitation Act, states like Pennsylvania that accept federal funds have waived any claim of immunity under that legislation. (Defendants tacitly admit this by omitting any mention of the Rehabilitation Act from their discussion of sovereign immunity.) Therefore, plaintiffs damage claims against the state and its agencies under the Rehabilitation Act will survive, even if this Court should agree with defendants sovereign immunity argument as to damage claims under the ADA. 7 See discussion at page 8, infra. 5

11 Case 309-cv JMM Document 25 Filed 02/11/2010 Page 11 of Quasi-Judicial Immunity Does Not Protect The Board Of Nursing Members From Liability For Their Methadone Exclusion Policy. The factual premise of defendants quasi-judicial immunity argument, that plaintiff is only attacking the Board of Nursing Order, is simply wrong. Rather, as discussed above at pages 2-5, plaintiff is attacking the covert methadone exclusion policy that was applied to her after the Order was entered, that requires her to submit to the dictates of a methadone-rejecting clinic and that excludes any methadone treatment providers. That policy has been enforced since the Board of Nursing Order, even though the Hearing Examiner expressly admitted that Reynolds did not as a medical matter need to be weaned from methadone, and even though the Order itself does not require it. Defendants are not immune because the manner in which the policy has been applied to Reynolds goes well beyond the Order, so that in carrying out the policy, defendants are not merely enforcing the Order or performing a judicial or quasi-judicial function. 4. The Amended Complaint Adequately Alleges Commissioner Merenda s Responsibility For Carrying Out The Methadone Exclusion Policy. Finally, defendants argue that Commissioner Merenda should be dismissed because the Amended Complaint makes no mention of [him] other than identify him as a party. This is simply not true. The Amended Complaint alleges that Commissioner Merenda ( BPOA ); is Commissioner of the Bureau of Professional and Occupational Affairs heads an agency, the BPOA which provides administrative and legal support to professional licensing boards and commissions including the state Board of Nursing ; is responsible, together with the BoN members, for carrying out the licensing of nurses in Pennsylvania in conformity with the Constitution of the United States, the ADA, the Rehabilitation Act, and the regulations promulgated thereunder ; 6

12 Case 309-cv JMM Document 25 Filed 02/11/2010 Page 12 of 26 has established, together with the other defendants, and followed the methadone exclusion policy described in detail throughout the Amended Complaint; heads an agency, the BPOA, which includes the Division of Professional Health Monitoring Programs ( PHMP ) which approves the methadone-rejecting providers who prevent Reynolds from working as a nurse, and employs the Case Manager who informed Reynolds that her file was closed until such time as she was weaned from methadone. Amended Complaint, 3(c), (d), (f), 5, 30, 55, 66 and 74. Reynolds has therefore adequately alleged the facts relating to Commissioner Merenda s liability. ARGUMENT 1. The Court Should Not Abstain. Abstention represents an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it. Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813 (1976) (quoting County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, (1959)). This obligation to adjudicate claims within the federal courts jurisdiction is virtually unflagging. Gwynedd Properties, Inc. v. Lower Gwynedd Township, 970 F.2d 1195, 1199 (3d Cir. 1992). Moreover, a federal court has no authority to abstain from the exercise of jurisdiction that has been properly conferred. Id., citing New Orleans Public Service, Inc. v. Council of New Orleans, 491 U.S. 350, 359 (1989). Therefore, abstention is the exception and not the rule. Marks v. Stinson, 19 F.3d 873, 881 (3d Cir.1994). In Gwynedd, the Third Circuit substantially reversed the District Court s abstention order, because the action was not one that challenged state statutes but rather conduct. Here too, Reynolds federal court Complaint challenges the defendants conduct, the application to 7

13 Case 309-cv JMM Document 25 Filed 02/11/2010 Page 13 of 26 Reynolds of the unwritten methadone exclusion policy, rather than challenging the state s laws. See Gwynedd, 970 F.2d at 1200 (emphasis added). Here too, as in Gwynedd, Reynolds federal Court Complaint does not interfere with any state court proceedings, ongoing or otherwise, but rather seeks mainly prospective relief without seeking to annul either previous state court judgments or the effect of the judgments. Id. at Finally, Reynolds does not challenge the state s legal framework for licensing of nurses, or the right of the state to require her to demonstrate that she can practice nursing skillfully and safely. Reynolds action challenges defendants application to her of the unwritten but nevertheless ironclad post-hearing methadone exclusion policy. That policy operates outside the formal administrative process. Thus Reynolds, like the plaintiff in Gwynedd, is challenging the defendants conduct, and not an administrative determination. Like the plaintiff in Gwynedd, Reynolds is seeking mainly prospective relief to require that the defendants carry out Pennsylvania law in a manner which complies with the ADA and the Rehabilitation Act. Reynolds claims cannot be addressed by deferring to a state administrative hearing, unlike the cases cited by defendants at page 7 of their Brief. The plaintiff in Middlesex County Ethics Committee v. Garden State Bar Ass n., 457 U.S. 423 (1982), was charged with an ethics violation, and brought an action to enjoin the administrative proceedings without even filing an answer. The Supreme Court held that Younger abstention was appropriate because he could litigate his constitutional claim in the administrative proceedings. By contrast, Reynolds never had an opportunity to litigate the post-hearing application of the methadone exclusion policy to her. Similarly, in Doe v. Connecticut Dep t. of Health Services, 75 F.3d 81 (2d Cir. 1996), Doe sought to enjoin a hearing before it took place, and presented no evidence that the Medical Examining Board has prevented (or will prevent) him from raising his federal concerns in the 8

14 Case 309-cv JMM Document 25 Filed 02/11/2010 Page 14 of 26 hearing before it. 75 F.3d at 85. Here, the hearing has already been held, and it is what defendants did to Reynolds after the hearing that is at issue. Defendants argue that Reynolds already knew that A Better Today would require methadone abstinence. It is true that Reynolds was sent to A Better Today before the hearing, and that she explained during the hearing the reasons why she could not comply with the demand of A Better Today to be detoxified from methadone. However, the Hearing Examiner, faced with this contradiction between Dr. Woody s conclusion that Reynolds was safe to practice while receiving methadone, and the intransigence of defendants PHMP-approved provider, did not resolve it. The Order did not require or inform Reynolds that she would be sent again to A Better Today. The Order did not require that she be weaned from methadone. What happened after the hearing and after the Order happened in spite of the Order, not because of it. The Order did not require defendants to apply to Reynolds a rigid and arbitrary methadone exclusion policy, without regard to her individual situation. Therefore, cases cited by defendants for the proposition that the BoN had jurisdiction to hear her claims 8 are simply irrelevant Reynolds could not litigate about matters that were not only unknown, but that had not yet occurred. Alternatively, defendants argue that Reynolds lack of knowledge of what they were about to do to her does not matter, but rather the relevant question is whether state law bars presentation of the issue in state court, citing Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, See p. 8 of defendants Brief, citing, Lehman v. Pennsylvania State Police, 576 Pa. 365, 839 A.2d 265 (2003) (claim that gun control regulation was improperly applied was remanded to ALJ after he erroneously decided that he did not have jurisdiction to hear it), and Middle Creek Bible Conference, Inc. v. Dep t. of Environmental Resources, 165 Pa,Cmwlth. 203, 645 A.2d 295 (1994) (Environmental Hearing Board had jurisdiction to determine whether DER action constitutes an unconstitutional taking of property). 9

15 Case 309-cv JMM Document 25 Filed 02/11/2010 Page 15 of 26 (1987). Pennzoil has nothing to do with the question of whether a federal court is required to abstain when the matter in question future discriminatory conduct against a person with a disability because of her use of methadone to treat her disability could not even have been addressed in the unappealed order. The question in Pennzoil was whether a federal court was required to abstain from interfering with Texas judgment execution procedures during the pendency of an appeal of an $11 billion judgment, where the Supreme Court found that the judgment debtor did have an available state court remedy. Here, Reynolds claims are not about the hearing, or about the Order that was entered against her, but about what happened to her after the state administrative proceedings were closed for which she has no state court remedy. Defendants also refer at page 10 of their Brief to the availability of appellate review of the Board of Nursing, and to a code provision for reopening of the record. The reference to appellate review and Ohio Civil Rights Comm n v. Dayton Christian Schools, Inc., 477 U.S. 619, 629 (1986) is a makeweight, because an appellate court could not remedy what was not in the record to begin with. The code provision, 1 Pa. Code , is simply irrelevant given that the Board of Nursing Order became final before the events on which Reynolds relies, including the requirement of A Better Today, after the Order, to wean herself from methadone, and the letter from defendants Case Manager closing Reynolds file because she had not done so. 9 Finally, Younger abstention also requires, as defendants admit, that the state proceeding be one that involves important state interests. However, defendants have utterly failed to identify the important state interest which justifies a covert methadone exclusion policy, or indeed any methadone exclusion policy. Like Gwynedd, this federal action is not a case in which important 9 See Amended Complaint, 64 (Order became final on September 18, 2007), 71 and Exhibit G (February 15, 2008 letter to Case Manager describing refusal of A Better Today) 74 and Exhibit H (March 13, 2008 letter from Case Manager stating that file was closed). 10

16 Case 309-cv JMM Document 25 Filed 02/11/2010 Page 16 of 26 state interests are at stake, such as a state's interest in its judicial system or in Reynolds case, its interest in regulating the nursing profession. 970 F.2d at Of course, Pennsylvania has a legitimate interest in regulating the nursing profession but that is not what this case is about. 2. Reynolds Claims for Injunctive Relief Are Not Barred By The Eleventh Amendment. As already noted, the Eleventh Amendment does not bar claims against state officers for injunctive relief. Ex parte Young, 209 U.S. 123 (1908). See also Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 374 n.9 (2001) (Rehnquist, C.J.) (even under Title I of the ADA where sovereign immunity does apply, federal act can be enforced by private individuals in actions for injunctive relief under Ex parte Young ); United States v. Georgia, 546 U.S. 151, 160 (2006) ( Title II is constitutional insofar as it authorizes prospective injunctive relief against the State ); Hason v. Medical Board of California, 279 F.3d 1167, 1171 (9th Cir. 2002), cert. dismissed, 538 U.S. 958 (2003)(same). 3. Reynolds Claims for Damages Are Not Barred By The Eleventh Amendment. Likewise, as discussed in the sections that follow, Reynolds claims for damages are not barred by the Eleventh Amendment. In an analogous case involving access to the courts, the Supreme Court has held that Congress validly abrogated the Eleventh Amendment as to Title II of the ADA, and the Second Circuit has held similarly with respect to Title II cases involving discriminatory animus. Reynolds has also sued for damages under the Rehabilitation Act as to which the state s acceptance of federal funds constitutes a waiver of Eleventh Amendment immunity. 11

17 Case 309-cv JMM Document 25 Filed 02/11/2010 Page 17 of 26 a. Congress Has Validly Abrogated The State s Immunity In Title II Of The ADA. In general, the Eleventh Amendment to the Constitution bars an action for damages against a state. However, Congress does have the power to abrogate the states sovereign immunity when acting under the enforcement clause of the Fourteenth Amendment. In such cases, Congress can abrogate the sovereign immunity of the states if the remedy... [is] congruent and proportional to the targeted violation. Alabama v. Garrett, 531 U.S. at 357. This case involves Title II of the ADA. Alabama v. Garrett was decided solely under Title I of the ADA relating to employment, and the Court expressly reserved any decision as to Title II. 531 U.S. at 360 n.1. Subsequently, the Supreme Court held in Tennessee v. Lane, 541 U.S. 509 (2004), that Title II was a valid abrogation of sovereign immunity as applied in that case. In Lane, the Court began by observing that there are significant differences between Titles I and II. 541 U.S. at 522. These differences included the specific legislative findings relating to access to public services Id. at 529 (emphasis added). The conclusion that Congress drew from this body of evidence is set forth in the text of the ADA itself [D]iscrimination against individuals with disabilities persists in such critical areas as... education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services. 42 U.S.C (a)(3) (emphasis added [by the Court]). This finding, together with the extensive record of disability discrimination that underlies it, makes clear beyond peradventure that inadequate provision of public services and access to public facilities was an appropriate subject for prophylactic legislation. In Lane, much like the case at bar, the defendants sought to undermine the Title II claim by emphasizing 12

18 Case 309-cv JMM Document 25 Filed 02/11/2010 Page 18 of 26 the broad range of Title II's applications all at once, and [urging the Court] to treat that breadth as a mark of the law's invalidity. According to petitioner, the fact that Title II applies not only to public education and voting-booth access but also to seating at state-owned hockey rinks indicates that Title II is not appropriately tailored to serve its objectives. Id. at 530. Similarly, here, defendants train their fire on cases that have nothing in common with the case at bar, except for the fact that they relate in some fashion to licensing. Thus, defendants cite Roe v. Johnson, 334 F.Supp.2d 415 (S.D.N.Y. 2004) (challenging the right of a bar admission committee to inquire into an applicant s mental health), and Brewer v. Wisconsin Board of Bar Examiners, 270 Fed.Appx. 418, 2008 WL (7th Cir. 2008), cert. denied, 129 S.Ct. 507 (2008) (same). This is not Reynolds case. Reynolds does not dispute defendants right to inquire about her disability, but rather defendants right to discriminate against her because of that disability, after she has disclosed it. 10 reject it here The Supreme Court rejected this all-or-nothing approach in Lane, and this Court should [N]othing in our case law requires us to consider Title II, with its wide variety of applications, as an undifferentiated whole. Whatever might be said about Title II's other applications, the question presented in this case is not whether Congress can validly subject the States to private suits for money damages for failing to provide reasonable access to hockey rinks, or even to voting booths, but whether Congress had the power under 5 [of the Fourteenth Amendment] to enforce the constitutional right of access to the courts. Because we find that Title II unquestionably is valid 5 legislation as it applies to the class of cases implicating the accessibility of judicial services, we need go no further. Id. at (footnotes and citation omitted). By the same token, the question before this Court is not whether Congress could validly abrogate the Eleventh Amendment as applied to a bar 10 See also discussion of Roe and Brewer at page 17, infra. 13

19 Case 309-cv JMM Document 25 Filed 02/11/2010 Page 19 of 26 admission committee s right to ask about mental health. Rather, the question is whether Congress could validly abrogate the Eleventh Amendment as applied to a covert and unwritten methadone exclusion policy which not only prevents Reynolds from practicing her profession, but also prevents her from having any effective judicial forum in which to challenge the policy. Reynolds claim resembles the claim of the Lane plaintiffs far more than it resembles the claims of the bar applicants. Reynolds did not refuse to answer questions about her past history of opioid drug dependency Far from it. It was by answering those questions, fully and honestly, that she caused the hammer of defendants methadone exclusion policy to fall upon her. The covert nature of the policy has deprived her of effective access to a judicial remedy, just as the physical barriers in courthouses did in Tennessee v. Lane. Therefore, Lane, which is the Supreme Court s only case to date on Title II of the ADA and the Eleventh Amendment, supports the conclusion that Congress has effectively abrogated the Eleventh Amendment here. Moreover, in other licensing cases under Title II of the ADA, courts have found that damage claims are allowed. See, e.g., Hason v. Medical Board of California, supra, 279 F.3d at 1171, and Garcia v. S.U.N.Y Health Sciences Center, 280 F.3d 98, (2d Cir. 2001) (abrogation of sovereign immunity valid in Title II ADA case where challenged government action was based on discriminatory animus or ill will towards the disabled ). 11 Congress is not required to anticipate the details of every case in advance. Congress did make specific legislative findings in the ADA about access to public services, application of exclusionary requirements to people with disabilities, the adverse economic effect of such 11 In the case at bar, defendants discriminatory actions against Reynolds are likewise motivated by discriminatory animus towards persons who have the disability of chronic opioid drug dependence. See, e.g., Amended Complaint, 1, 89. If the Court determines that a more explicit allegation is necessary, Reynolds requests leave to amend. 14

20 Case 309-cv JMM Document 25 Filed 02/11/2010 Page 20 of 26 standards on people with disabilities, and the need to provide people with disabilities with effective legal recourse. 42 U.S.C (a)(3), (4), (5) and (6), and see also Tennessee v. Lane, 541 U.S. at 529. Therefore, Lane does support the conclusion that Congress has effectively abrogated the Eleventh Amendment as applied to the unique facts of Reynolds case and the covert methadone exclusion policy. b. By Accepting Federal Funds, The State Has Waived Its Immunity From Claims Under The Rehabilitation Act. The state and agency defendants do not deny that they receive federal funds and therefore are subject to the Rehabilitation Act. The Rehabilitation Act expressly requires a state that accepts such funding to waive its sovereign immunity for claims under the Rehabilitation Act. 42 U.S.C. 2000d-7(a)(1). See generally, Koslow v. Pennsylvania, 302 F.3d 161, 172 (3d Cir. 2002), cert. denied, 537 U.S (2003). 4. The Individual Defendants May Be Held Liable For Damages Resulting From The Methadone Exclusion Policy. Defendants argument that Title II cannot be enforced against individuals, because they are not themselves public entities, ignores both the language and purpose of the statute. The operative section of Title II, 42 U.S.C , does prohibit discrimination by public entities but it does more. Section has two independent parts separated by the word or. The second part prohibits discrimination by public entities, but the first part is broader and prohibits the exclusion of people with disabilities from public services, programs or activities of a public entity (Emphasis added.) Subject to the provisions of this subchapter, 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. 15

21 Case 309-cv JMM Document 25 Filed 02/11/2010 Page 21 of 26 One of the most basic interpretive canon[s] is that a statute must be interpreted to give effect to all its provisions, so that no part will be inoperative or superfluous, void or insignificant. Corley v. United States, --- U.S. ---, 129 S.Ct. 1558, 1566 (2009), citing Hibbs v. Winn, 542 U.S. 88, 101 (2004). See also Disabled in Action of Pennsylvania v. Southeastern Pennsylvania Transportation Auth., 539 F.3d 199, 211 (3d Cir. 2008). The use of the word or indicates that the two parts of Section are separate and independent requirements. The individual defendants have, by carrying out the methadone exclusion policy, excluded Reynolds from participation in and denied them the benefits of the public services, programs and activities of their agencies, in violation of the first part of Section Defendants argument simply ignores the first part of Section 12132, and also ignores both the broad, remedial purpose of the statute and common sense. Because of the unique facts alleged in the case at bar and unlike any of the other cases cited by defendants the first part of Section has a distinct and important meaning here. It is clear from the allegations of the Amended Complaint, admitted for purposes of this motion, that the actions of the individual defendants in carrying out the methadone exclusion policy, have caused Reynolds to be excluded from participation in the services, programs and activities of public entities. If there is to be effective legal recourse (42 U.S.C (a)(4)) against these sub rosa exclusionary qualification standards and criteria (42 U.S.C (a)(5)), there must be recourse against the individual defendants. None of the cases cited by defendants at pages of their Brief consider this language, or involve these facts. For example, Emerson v. Thiel College, 296 F.3d 184 (3d Cir. 2002) is a Title III public accommodations case; see 296 F.3d at 186. It does no more than refer in passing to Titles I and II ( Titles I and II of the ADA, which prohibit discrimination by 16

22 Case 309-cv JMM Document 25 Filed 02/11/2010 Page 22 of 26 employers and public entitles ) without any consideration of the language of Section 12132, much less of its two separate and independent provisions. Id. at 189. Likewise, the other cases cited by defendants, namely, Koslow, supra, 302 F.3d at 178; Garcia v. S.U.N.Y Health Sciences Center, supra, 280 F.3d at 107; Walker v. Snyder, 213 F.3d 344, 346 (7th Cir. 2000), cert. denied, 531 U.S (2001); Alsbrook v. City of Maumelle, 184 F.3d 999, 1005 n.8 (8th Cir. 1999), cert. dismissed, 529 U.S (2000); and Zimmerman v. Biehler, 2009 WL at *4 (M.D.Pa. 2009) do not even discuss the language of Section Because Reynolds Claims Are Directed At The Methadone Exclusion Policy, And Not The Administrative Proceeding, The Members Of The Board Of Nursing Are Not Immune. The cases cited by defendants demonstrate why the doctrine of quasi-judicial immunity has no applicability to this case. Simply stated, in formulating and carrying out the methadone exclusion policy, the defendant BoN members did not walk, talk and act like... judge[s]. See Defendants Brief at p. 17, citing Dotzel v. Ashbridge, 438 F.3d 320, 325 (3d Cir. 2006). Contrary to defendants argument, Reynolds has alleged claims against the individual board members that go beyond their role in suspending her nursing license. (Defendants Brief at p. 17.) Reynolds alleges, and for purposes of this motion defendants admit, that the BoN members approved the application to Reynolds of a methadone exclusion policy which made it impossible for her to be licensed because of her admitted use of methadone. (Amended Complaint, 30, 67, 68, 74.) Defendants may deny this allegation of fact if they wish, but not on a motion to dismiss. Defendants motion to dismiss must be measured by the allegations of the Amended Complaint. Moreover, none of the licensing cases cited by defendants include such allegations. Roe v. Johnson, supra, stemmed from Roe s objections to a bar admission committee asking questions about her mental health. 334 F.Supp.2d at 417. The bar admission committee had not 17

23 Case 309-cv JMM Document 25 Filed 02/11/2010 Page 23 of 26 yet made a final ruling. Id. at 418. Here, by contrast, Reynolds answered all questions about her disability fully. There is no dispute that the BoN Order against her is final. Reynolds claim is about what defendants did to her after the hearing, not during it. Brewer v. Wisconsin Board of Bar Examiners, supra, stemmed from Brewer s refusal to obtain a psychological evaluation, and her consequent loss of the diploma privilege accorded to graduates of Wisconsin law schools to be admitted to the bar without sitting for the bar examination WL at *1. In Brewer, the Board subsequently promised to restore her diploma privilege and withdrew its request for a psychological evaluation. Thus, Brewer had already received from the administrative agency all of the relief the courts could provide. Id. at *2. Here, by contrast, Reynolds submitted to every examination that was required, and is still being subjected to defendants discriminatory methadone exclusion policy. 6. Reynolds Has Adequately Alleged A Claim Against Commissioner Merenda. As summarized above at page 6, Reynolds has adequately stated the facts relating to Commissioner Merenda s involvement in the methadone exclusion policy. The policy is carried out by agencies under his direction. The facts that Reynolds has pleaded about the methadone exclusion policy are both specific and plausible, and therefore do not raise the issues considered in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) or Ashcroft v. Iqbal, --- U.S. ---, 129 S.Ct (2009), cited by defendants. Given Commissioner Merenda s clearly stated and undisputed role as Commissioner of the BPOA, the issue is not how many times his name appears in the Amended Complaint, but whether Reynolds has adequately and plausibly identified him as a person responsible for this policy. She has done so, and defendants motion to dismiss the claim against Commissioner Merenda should therefore be denied. 18

24 Case 309-cv JMM Document 25 Filed 02/11/2010 Page 24 of 26 CONCLUSION The unique facts of defendants covert methadone exclusion policy, as set forth in the Amended Complaint, demonstrate that this case belongs in this Court. Reynolds respectfully requests that this Honorable Court hear and decide her case on the merits. Respectfully, /s/ Lawrence D. Berger Lawrence D. Berger Shepherd, Finkelman, Miller & Shah, LLP 35 East State Street Media, PA (610) (phone) (610) (fax) ( ) PA Dated February 11, 2009 /s/ Michael Churchill Michael Churchill Public Interest Law Center of Philadelphia 1709 Benjamin Franklin Parkway, 2d Floor Philadelphia, PA (215) (phone) (215) (fax) ( ) PA Attorneys for Plaintiff 19

25 Case 309-cv JMM Document 25 Filed 02/11/2010 Page 25 of 26 Certification of Word Count I hereby certify in accordance with Rule 7.8(b) of the Rules of Court, and this Court s February 9, 2010 Order granting plaintiff permission to file a brief of up to and not exceeding 6,000 words in length, that the body of the foregoing brief contains 5,568 words as revealed by the word count feature of the word processing system used to prepare the brief. /s/ Lawrence D. Berger Lawrence D. Berger

26 Case 309-cv JMM Document 25 Filed 02/11/2010 Page 26 of 26 Certificate of Service I hereby certify that the foregoing Brief For Plaintiff Melinda Lamberson Reynolds In Opposition To Defendants Motion To Dismiss The Amended Complaint was served on counsel of record through the Court s electronic docketing system (CM/ECF). /s/ Lawrence D. Berger Lawrence D. Berger Dated February 11, 2010

27 Case 309-cv JMM Document 25-2 Filed 02/11/2010 Page 1 of 1 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA MELINDA LAMBERSON REYNOLDS, Plaintiff v. COMMONWEALTH OF PENNSYLVANIA, et al., Defendants CIVIL ACTION NO. 09-CV-1492 (Judge Munley) Electronically Filed ORDER AND NOW, this day of 2010, upon consideration of defendants motion to dismiss the Amended Complaint and plaintiff s opposition thereto, the motion is hereby DENIED. Defendants shall answer the Amended Complaint within fourteen (14) days after the date hereof pursuant to Rule 12(a)(4)(A) of the Federal Rules of Civil Procedure. James M. Munley United States District Judge