Janes v. Harris (Full Text)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
MERLE JANES, et. al.,
Plaintiffs,

NO. CV-08-200-EFS

v.
PETER J. HARRIS,
individually, and as agent
for the WASHINGTON DEPARTMENT
OF HEALTH, et. al.,
Defendants.

ORDER ENTERING RULINGS FROM
MAY 8, 2009 HEARING

A hearing occurred in the above-captioned matter on May 8, 2009.
Laura D. Cooper and William Powell appeared on Plaintiffs’ behalf;
Melissa Ann Burke-Cain, Robert Timothy Crandell, and Michael Tribble
appeared on Defendants’ behalf. Before the Court were Defendants’
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Partial Summary Judgment Motion Under FRCP 56 Re: Standing (Ct. Rec. 81)2

Mr. Powell and Mr. Tribble appeared telephonically.
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The title of this motion is a misnomer. Defendants do not seek
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partial summary judgment; rather, they seek to dismiss Plaintiffs’ action

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and Partial Summary Judgment Re: Immunities (Ct. Rec. 94). After
reviewing the submitted material and relevant authority and hearing oral
argument, the Court is fully informed and grants Defendants’ summary
judgment motion on standing and denies as moot Defendants’ summary
judgment motion on immunities. The reasons for the Court’s Order are set
forth below.

A.

I. Background3
The Agency Medical Directors’ Group
The Agency Medical Directors’ Group is comprised of the medical
directors from seven (7) state agencies. The Group’s broad goal is to
improve health care programs purchased by the State of Washington. One
way the Group accomplishes its goal is by publishing interagency
guidelines, which serve as an educational tool for medical providers
caring for patients of state agency programs.
In March 2007, the Group published interagency guidelines on Opioid
Dosing for Chronic non-Cancer Pain. The Guidelines are part of an
educational pilot designed to 1) provide easy-to-use guidelines for

entirely.
Local Rule 56.1(b) requires a party opposing summary judgment to
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submit a statement setting forth the specific facts precluding summary
judgment. Plaintiffs did not file an Local Rule 56.1(b) statement. As
such, the Court treats Defendants’ Statement of Facts (Ct. Rec. 83),
which form the basis for the background, as undisputed, except to the
extent that it conflicts with Plaintiffs’ sole-submitted affidavit. See
LR 56.1(d).

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primary care providers in prescribing opioids in a safe and effective
manner, 2) raise awareness of the risks with opioids, 3) provide
strategies for tapering or discontinuing opioids when appropriate, and
4) decrease the number of prescription opioid-related deaths.
The Guidelines do not impose specific restrictions or obligations
on primary care providers; to the contrary, the Guidelines leave it to
the medical provider to determined the need for treatment with opioids.
B.
The Medical Quality Assurance Commission
The Medical Quality Assurance Commission is a regulatory body
charged with monitoring the competency and quality of professional health
care providers in Washington. The Commission is authorized to
investigate and, if necessary, discipline health care providers for
unprofessional conduct.
In June 2006, the Commission received complaints about Plaintiff
Dr. Merle Janes, MD, a licensed Washington physician whose
responsibilities include prescribing opioids to patients suffering from
severe, chronic pain. In February 2008, the Commission informally
4
investigated Dr. Janes by questioning him about his opioid practice. The
Commission threatened disciplinary action if Dr. Janes did not pay a fine
and attend educational classes about opioid treatment. Ultimately, no
disciplinary action was taken.
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26 It is unclear what the allegations were.
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C.

Plaintiffs’ Claims5
Plaintiffs allege that the Commission’s unspoken purpose is to
restrict opioid access to chronic pain patients. The Commission
effectuates this purpose by threatening to discipline physicians who
treat chronic pain patients with opioid medication.
Plaintiffs insist that the Guidelines are discriminatory because
1) they burden chronic pain patients’ ability to access opioid
medications and related treatment, and 2) physicians view the Guidelines
as firm regulations despite their advisory nature. The net result from
both the Commission’s actions and the Guidelines’ directives is that
fewer physicians are willing to administer opioids, causing chronic pain
patients to lose access to a critical avenue for managing pain.
Actions Leading to Litigation
D.
In March 2008, Dr. Janes informed his patients via letter that, as
of April 2008, he would no longer prescribe opioid medications. Although
Dr. Janes’ letter provides no reason why, he submitted an affidavit
explaining that the Commission’s threats of discipline against him forced
him to stop prescribing opioids. Despite giving his patients an
opportunity to transfer to other physicians, most remained in Dr. Janes’
care. In June 2008, Dr. Janes and other plaintiff patients filed the
above-captioned matter.

The following represents the Court’s effort to succinctly summarize
5
Plaintiffs’ claims. Plaintiffs’ First Amended Complaint identifies
approximately forty-five claims, all of which are asserted in a
disorganized, verbose fashion difficult to understand.

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A.

II. Discussion
Motion for Leave to File Supplemental Briefing (Ct. Rec. 120)
After the May 8, 2009 hearing, Plaintiffs moved for leave to file
supplemental briefing on standing. After review, the Court grants
Plaintiffs’ motion. These materials were considered by the Court when
making its decision.
Rule 12 or Rule 56
B.
The legal standard on a dispositive motion is rarely disputed.
Here, it is. Some background is necessary to understand why such a
seemingly straightforward issue is so controversial.
On February 18, 2009, a telephonic status conference occurred in the
above-captioned matter. (Ct. Rec. 65.) At that conference, the parties
informed the Court that it would be beneficial to resolve a number of
issues via motions practice before setting a trial date and commencing
formal discovery. Deferential to the parties’ pretrial strategy, the
Court set a status conference for July 2009 and, in the meantime,
permitted the parties “to file dispositive motions on legal issues only.”
(Ct. Rec. 66 at 2.)
Defendants subsequently filed a motion challenging Plaintiffs’
standing to adjudicate this matter in federal court. There are two (2)
ways to effectuate such a challenge: a motion to dismiss under Federal
Rule of Civil Procedure 12, or a motion for summary judgment under
Rule 56. 15-101 MOORE’S FEDERAL PRACTICE – CIVIL § 101.30 (2009). Defendants
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Standing can also be raised sua sponte by the district court. Cora
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Constr. Co. v. King County, 941 F.2d 910, 928-29 (9th Cir. 1991).

ORDER ~ 5

elected the latter. There was nothing ambiguous about that decision.
Defendants styled their motion as one for summary judgment; they also
filed a statement of material facts and several declarations, which
necessarily converts any Rule 12 motion into one for summary judgment.
See FED. R. CIV. P. 12(d) (recognizing that a “motion must be treated as
one for summary judgment under rule 56″ when matters outside the
pleadings are presented to and not excluded by the court).
Despite this clarity, Plaintiffs claim that Defendants’ motion is
“tantamount to a motion to dismiss for lack of standing under Rule
12(b)(6).” (Ct. Rec. 102 at 1-2.) In fact, Plaintiffs accuse Defendants
of misapplying the proper standard and assuming that Plaintiffs’ burden
extends beyond that of a well-pleaded complaint. Id. at 2. Plaintiffs
are mistaken. This mistaken belief is premised on the view that the
Court’s February 18, 2009 Order (Ct. Rec. 66) restricted the parties’
dispositive motions to Rule 12 motions only. The Court did no such
thing; rather, it restricted the parties’ dispositive motions to legal
issues only. Defendants’ motion is therefore entirely proper – standing
is, after all, a legal issue. See, e.g., Voigt v. Savell, 70 F.3d 1552,
1564 (9th Cir. 1995) (“Standing is a purely legal issue which requires
our independent or de novo determination . . . .”) (emphasis added).
Nothing in the Court’s February 18, 2009 Order prohibited the parties
from conducting informal discovery, preparing affidavits, or filing
Rule 56 motions. Plaintiffs read into the Court’s Order language that
does not exist. 7

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26 Plaintiffs were confident that Defendants applied the incorrect
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The consequence of this mistake (treating Rule 12, and not Rule 56,
as the correct legal standard) is significant and explained well by the
Supreme Court:
The party invoking federal jurisdiction bears the burden of
establishing [standing]. Since [standing is not a] mere
pleading requirement[] but rather an indispensable part of the
plaintiff’s case, [standing] must be supported in the same way
as any other matter on which the plaintiff bears the burden of
proof, i.e., with the manner and degree of evidence required
at the successive stages of litigation. At the pleading
stage, general factual allegations of injury resulting from
the defendant’s conduct may suffice, for on a motion to
dismiss we presume that general allegations embrace those
specific facts that are necessary to support the claim. In
response to a summary judgment motion, however, the plaintiff
can no longer rest on such mere allegation, but must set forth
by affidavit or other evidence specific facts, which for
purposes of the summary judgment motion will be taken to be
true . . . .
Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (internal
citations and quotations omitted). This is not the pleading stage; this
is the summary judgment stage. As such, the Court will not simply
accept as true all material allegations in the complaint. Lee v. City
of Los Angeles, 250 F.3d 668, 679 (9th Cir. 2001). More is required.
At the May 8, 2009 hearing, the Court explicitly – and repeatedly –
informed Plaintiffs that they misinterpreted the Court’s prior Order and
that Rule 56, not Rule 12, was the applicable legal standard. The Court
even hinted that Plaintiffs could seek a short continuance under

legal standard. In the face of Defendants’ Rule 56 motion, however,
Plaintiffs would have been best served by including an argument in the
alternative: e.g., “Even assuming arguendo that Rule 56 is the
controlling standard, genuine factual issues . . . .”

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Rule 56(f) in order to gather the requisite facts to effectively oppose
Defendant’s Rule 56 motion. But Plaintiffs never formally requested
Rule 56(f) relief; they insisted instead that the First Amended
Complaint was enough to invoke the Court’s jurisdiction.
After the May 8, 2009 hearing, Plaintiffs filed a supplemental
brief on standing. (Ct. Rec. 120.) Plaintiffs still do not ask for
Rule 56(f) relief; rather, Plaintiffs reiterate their mistaken view of
the Court’s February 18, 2009 Order and ask the Court to apply Rule 12
as the proper standard. As set forth below, Plaintiff’s insistence on
applying the incorrect legal standard is fatal to their case.
Summary Judgment Standard
C.
Summary judgment is appropriate if the “pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a
matter of law.” FED. R. CIV. P. 56(c). Once a party has moved for
summary judgment, the opposing party must point to specific facts
establishing that there is a genuine issue for trial. Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986). If the nonmoving party fails to make
such a showing for any of the elements essential to its case for which
it bears the burden of proof, the trial court should grant the summary
judgment motion. Id. at 322. “When the moving party has carried its
burden of [showing that it is entitled to judgment as a matter of law],
its opponent must do more than show that there is some metaphysical doubt
as to material facts. In the language of [Rule 56], the nonmoving party
must come forward with ‘specific facts showing that there is a genuine

ORDER ~ 8

issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586-87 (1986) (citations omitted) (emphasis in original
opinion).
When considering a motion for summary judgment, a court should not
weigh the evidence or assess credibility; instead, “the evidence of the
non-movant is to be believed, and all justifiable inferences are to be
drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). This does not mean that a court will accept as true assertions
made by the non-moving party that are flatly contradicted by the record.
See Scott v. Harris, 550 U.S. 372, 380 (2007) (“When opposing parties
tell two different stories, one of which is blatantly contradicted by the
record, so that no reasonable jury could believe it, a court should not
adopt that version of the facts for purposes of ruling on a motion for
summary judgment.”).
Motion for Summary Judgment Re: Standing (Ct. Rec. 81)
D.
Standing is the determination of whether “the litigant is entitled
to have the court decide the merits of the dispute or of particular
issues.” Warth v. Seldin, 422 U.S. 490, 498 (1975). It is also a
threshold requirement in every federal case. Id. There are several
requirements for standing, all of which must be met in order for a
federal court to adjudicate a case. These requirements are best divided
into two (2) categories: the first category is constitutional, meaning
the requirements are derived from Article III and cannot be overridden
by statute; the second category is prudential, meaning judge-made
considerations. Erwin Chemerinsky, FEDERAL JURISDICTION 60 (2007).

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1.
Article III Standing
Article III limits the federal court’s judicial power to “cases” and
“controversies.” Given this limitation, federal courts are presumed to
lack jurisdiction “unless the contrary appears affirmatively from the
record.” Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 546
(1986). Establishing Article III standing requires three (3) elements.
First, the plaintiff must have suffered an injury-in-fact. United States
v. Hays, 515 U.S. 737, 743 (1995). Second, there must be a causal
connection between the injury and the conduct complained of. Id. Third,
it must be likely, as opposed to merely speculative, that the injury will
be redressed by a favorable court decision. Id. The party invoking
federal jurisdiction bears the burden of establishing these elements.
Covington v. Jefferson County, 358 F.3d 626, 637-38 (9th Cir. 2004).8
i.
Injury-in-Fact
The first element required for Article III standing is injury-in-
fact. Lujan, 504 U.S. at 560. Injury-in-fact means an invasion of a
legally-protected interest which is (a) concrete and particularized and
(b) actual or imminent, not conjectural or hypothetical. Colwell v. HHS,
558 F.3d 1112, 1122 (9th Cir. 2007) (citing Lujan, 504 U.S. at 560-61).
Each issue will be addressed in turn.
a.
Concrete and Particularized
Defendants assert that there is no concrete and particularized
injury because Plaintiffs cannot show that either the Commission or the

Plaintiffs mistakenly assert that no such burden exists.
8
(Ct. Rec. 102 at 3.)

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Guidelines prohibited 1) Dr. Janes from treating patients with opioids,
or 2) Plaintiff patients from obtaining opioid medications or treatment.
(Ct. Rec. 82 at 7.) Plaintiffs respond that their complaint is
“peppered” with facts averring injury-in-fact. (Ct. Rec. 102 at 4.)9
A plaintiff must have a personal and particular stake in the matter
to be adjudicated. Lujan, 504 U.S. at 560. The Supreme Court defines
“particularized” as an injury that “affect[s] the plaintiff in a personal
and individual way.” Id. n.1; see, e.g., Doe v. Madison Sch. Dist. No.
321, 177 F.3d 789, 797 (9th Cir. 1999) (finding that parent had no
standing to challenge school district policy permitting students to
include prayer in graduation programs because her children had all
graduated and she did not allege that she would have attended another
graduation program); Cone Corp. v. Florida Dep’t of Transp., 921 F.2d
1190, 1205-1206 (11th Cir. 1991) (finding that construction contractors
lacked standing to challenge state’s minority set-aside program because
they did not allege loss of any specific contract or facts from which
court could predict denial of equal protection in award of future
construction contracts; complaint included only general allegation that
plaintiffs lost work as a result of program).
Here, drawing all inferences in Plaintiffs’ favor, the Court finds
that Plaintiffs can claim a particularized injury based on the
Commission’s alleged conduct against Dr. Janes; Plaintiffs cannot,

Plaintiffs’ argument is premised on the mistaken assumption that
9
Rule 12 is the applicable legal standard, meaning the Court accepts as
true all well-pleaded allegations in the complaint. Not so.

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however, claim a particularized injury based on the Guidelines’
publication.
In June 2006, after receiving patient complaints, the Commission
initiated an investigation against Dr. Janes for “unprofessional conduct”
– the exact details are unclear. In February 2008, the Commission
vigorously questioned Dr. Janes about treating chronic pain patients with
opioid prescriptions. (Ct. Rec. 103 at 3.) Following that session, the
Commission e-mailed Dr. Janes a proposed resolution. In sum, it propsoed
that Dr. Janes pay a fine, attend certain educational classes, and agree
not to prescribe opiates in the future. Id. at 4. While Dr. Janes never
agreed to the Commission’s proposed resolution, he did stop prescribing
opioid medications to his patients. Id. Dr. Janes was therefore
affected by the Commission’s actions in a personal and individual way
because the mere prospect of formal disciplinary action caused him to
stop prescribing opioids to his patients. His patients are similarly
affected in a personal and individual way because the Commission caused
their treating physician to cease offering opioid medications, thereby
burdening Plaintiff patients’ access to opioids – they must now find
another source. This is a particularized injury.
The same cannot be said for the Guidelines’ effects on Dr. Janes,
his patients, and other chronic pain patients. It is undisputed that the
Guidelines 1) are advisory, 2) do not impose specific restrictions or
obligations on primary care providers or patients, and 3) are simply an
educational pilot designed to raise awareness about the risks associated
with opioid medications. Id. at 7-8.

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There are no facts demonstrating that the purely-advisory Guidelines
in any way chilled Plaintiff patients’ access to opioid medications;
there are no facts establishing that the Guidelines deny opioid
medications at any particular dose; there are no facts establishing that
Plaintiff patients had a more difficult time getting opioid prescriptions
filled after the Guidelines were published; there are no facts
establishing that the Guidelines were ever applied in a discriminatory
manner; there are no facts establishing that doctors refused to prescribe
opioids based on the Guidelines’ “regulatory effect.” Without such
facts, Plaintiffs cannot establish that the Guidelines have in any way
injured them in a personal and individual way, a necessary requirement
for Article III standing. Lujan, 504 U.S. at 560.
At oral argument, Plaintiffs relied heavily on two (2) Ninth Circuit
cases, Lee v. City of Los Angeles, 250 F.3d 668 (9th Cir. 2001), and
Hason v. Medical Board of California et. al., 279 F.3d 1167 (9th Cir.
2002), for the proposition that discrimination is an injury-in-fact as
a matter of law under Title II of the Americans with Disabilities Act
(“ADA”), thereby precluding summary judgment. This contention is
misplaced for two (2) reasons.
First, Lee and Hason are procedurally distinguishable. Both cases
involved motions to dismiss ADA claims under Rule 12, where a district
court is required to accept as true all well-pleaded allegations in the
complaint. As stated, this is a Rule 56 posture, where the Court does
not accept as true all well-pleaded allegations. Second, there are no
genuine factual issues regarding Plaintiffs’ Title II claims. Title II
provides that “no qualified individual with a disability shall, by reason

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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.
Plaintiffs have presented no evidence to create genuine triable issues
on any of the following points: 1) that they are qualified individuals
with disabilities; 2) that they were denied any services, programs, or
activities; or 3) that they were subjected to discrimination by a public
entity. None. Without such evidence, Plaintiffs cannot establish a
prima facie Title II discrimination case, let alone the necessary injury-
in-fact to establish standing under Article III.
In sum, Plaintiffs have identified a particularized injury with
respect to claims arising from the Commission’s conduct but not with
respect to claims arising from the Guidelines’ publication.
b.
Actual or Imminent
Defendants argue that Plaintiffs’ purported injuries from the
Guidelines’ publication is speculative at best and insufficient to
establish Article III standing. (Ct. Rec. 82 at 9.) Plaintiffs do not
directly address this issue.
“In a suit to compel the government to act lawfully, the plaintiff
must show that he or she has sustained or is immediately in danger of
sustaining some direct injury as the result of the challenged official
conduct.” MOORE’S – CIVIL § 101.60 [2][b]; City of Los Angeles v. Lyons,
461 U.S. 95, 101-102 (1983) (Plaintiff once subject to police
stranglehold lacked standing to seek injunctive relief without showing
likely future injury from police brutality.). Injuries that are merely
conjectural, speculative, or hypothetical do not create an injury-in-

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fact. Whitmore v. Arkansas, 495 U.S. 149, 155 (1990). These adjectives
are largely duplicative; the key is that the mere possibility of future
injury is insufficient to establish injury-in-fact. Gospel Missions of
Am. v. City of L.A., 328 F.3d 548, 555 (9th Cir. 2003) (finding that
religious nonprofit lacked standing to challenge local ordinance as
violating First Amendment right to hear speech or be solicited because
allegations raised only mere possibility of future injury); see also San
Diego County Gun Rights Comm. v. Reno, 98 F.3d 1121, 1126 (9th Cir. 1996)
(noting that mere possibility of criminal sanctions does not satisfy
injury-in-fact requirement).
Viewing the evidence in Plaintiffs’ favor, the Court finds that
Plaintiffs can identify actual and imminent injury based on the
Commission’s alleged conduct against Dr. Janes; Plaintiffs cannot,
however, identify actual or imminent injury based on the Guidelines’
publication.
As discussed, the Commission threatened to suspend Dr. Janes’
license for operating his practice “like an opioid candy store.”
(Ct. Rec. 103 at 2.) Fearing suspension, Dr. Janes “voluntarily” stopped
prescribing opioids to his patients in April 2008. The Commission’s
conduct constituted a concrete, actual injury. Nothing is speculative
about the Commission’s threat. The same is true for Plaintiff patients.
The Commission’s threat to formally discipline Dr. Janes tangibly affects
Plaintiff patients’ ability to obtain prescription opioids from their
treating physician.
What is speculative is the Guidelines’ actual or imminent impact on
either Dr. Janes or Plaintiff patients. Plaintiffs allege that the

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Guidelines’ publication have the force and effect of law and improperly
burden their access to opioid medications and treatment. (Ct. Rec. 102
at 5.) This may be true. But Plaintiffs present no evidence – in the
form of declarations, affidavits, or otherwise – to support this claim.
They simply allege this is so in their brief. Legal memoranda are not
evidence and do not create issues of fact. British Airways Bd. v. Boeing
Co., 585 F.2d 946, 952 (9th Cir. 1978). Nor will uncorroborated
allegations and “self-serving testimony” create genuine issues of fact.
Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir.
2002); T.W. Elec. Serv. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626,
630 (9th Cir. 1987). It therefore remains undisputed that the Guidelines
have never been anything but an educational tool to raise awareness about
the risks associated with opioid medications. (Ct. Rec. 83 at 7.)
Plaintiffs’ mere speculation that the Guidelines are discriminatory and
more than advisory does not create an actual or imminent injury meriting
Article III standing. See Gospel Missions of Am., 328 F.3d at 555.
ii.
Causal Connection
Defendants argue that there is no nexus between the Guidelines’
publication and Plaintiffs’ alleged injuries. (Ct. Rec. 82 at 11.)
Plaintiffs mistakenly respond that they have no obligation to establish
causation. (Ct. Rec. 102 at 4.)10

This mistaken assumption is once against premised on the belief
10
that Rule 12 is the applicable legal standard. It is not.

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The second element required for Article III standing is causation.
Lujan, 504 U.S. at 560. Causation exists when the injury is “fairly
traceable” to the challenged action. Whitmore, 495 U.S. at 155.
Viewing the evidence in Plaintiffs’ favor, the Court finds that a
causal connection exists between the Commission’s actions and Plaintiffs’
alleged injuries. The Commission’s disciplinary threats caused Dr. Janes
to stop prescribing opioid medications to his patients. (Ct. Rec. 103
at 4.) This stoppage directly impacted Dr. Janes; it also directly
impacted Plaintiff patients’ access to opioids. This is a sufficient
nexus for Article III causation.
With respect to the Guidelines’ publication, there is no need to
consider whether a causal connection exists because Plaintiffs cannot
establish injury-in-fact. But even assuming arguendo that Plaintiffs did
present an injury-in-fact, the Court finds that that there is no causal
connection between the Guidelines’ publication and Plaintiffs’ alleged
injuries. The only affidavit submitted by Plaintiffs is from Dr. Janes,
and nowhere in the affidavit does Dr. Janes identify the Guidelines as
the factor – or even a factor – in his decision to stop prescribing
opioids. Nor is there any evidence connecting the Guidelines’
publication to Plaintiff patients’ purported difficulties in securing
opioids or treatment for their chronic pain. Without such evidence, a
nexus cannot exist.
Accordingly, Plaintiffs establish causation only with respect to
claims arising from the Commission’s actions.
\
\

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iii. Redressability
Defendants argue that Plaintiffs’ requested relief – various
injunctions against the State of Washington – will not address their
purported injuries-in-fact. (Ct. Rec. 82 at 13.) Plaintiffs fail to
address this issue.
The third element required for Article III standing is
redressability. Lujan, 504 U.S. at 560. “Redressability” means that
there is a “substantial likelihood that the requested relief will remedy
[the plaintiff’s] alleged injury in fact. McConnell v. FEC, 540 U.S. 93,
229 (2003); see also Public Citizen v. DOT, 316 F.3d 1002, 1016-1019 (9th
Cir. 2003), rev’d on other grounds, 541 U.S. 752 (2004) (recognizing that
redressability prong requires that requested relief will likely redress
alleged injury). The goal of redressability is to bar disputes that will
not be resolved by judicial action. MOORE’S – CIVIL § 101.42[2]. In other
words, did the plaintiffs bring their fight to the proper branch of
government?
Even viewing the evidence in their favor, Plaintiffs cannot
establish redressability. For relief, Plaintiffs ask the Court to
1) declare that the Guidelines are unenforceable, 2) order Defendants to
remove the Guidelines from publication, 3) order Defendants to publish
a notice regarding the Guidelines’ removal from publication, 4) order
Defendants not to discriminate against individuals with disabilities,
5) order Defendants not to deprive chronic pain patients of access to
necessary medical care, 6) declare all Commission investigations into
physicians who treat chronic pain patients as “inherently suspect,” 7)
order the Commission to take no disciplinary action against Dr. Janes or

ORDER ~ 18

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any other Washington physician for treating chronic pain patients with
opioids, regardless of dosage or length of treatment, 8) require
Defendants to prepare an educational program for its workers on opioid
medications, and 9) award all available damages under applicable laws.
(Ct. Rec. 29 at 144-147.) These are just some of Plaintiffs’ many
requested reliefs.
With respect to the Commission, Plaintiffs’ underlying allegation
(and the injury-in-fact) is that the Commission improperly threatened
discipline against Dr. Janes for prescribing opioids. Enjoining the
Commission from taking any disciplinary action against any opioid-
prescribing physician, regardless of dosage, does not address Plaintiffs’
claimed injury-in-fact. This is because disciplinary investigations
based on professional misconduct are authorized – and required – by
statute and handled on a case-by-case basis. One disciplinary action
cannot be compared to another. Plaintiffs’ requested “blanket”
injunction is unworkable and unlikely to address Plaintiffs’ injury-in-
fact. Even if Plaintiffs’ requested relief could conceivably address
their alleged injury, it does not change the fact that they presented no
evidence on redressability whatsoever. As stated, legal memoranda and
uncorroborated allegations do not create genuine factual issues regarding
redressability. British Airways Bd., 585 F.2d at 952; Villiarimo, 281
F.3d at 1061. Without such evidence, they cannot meet their burden to
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establish Article III standing. Lujan, 504 U.S. at 561 (“The party

In fact, Plaintiffs do not even mention redressability in their
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briefing.

ORDER ~ 19

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invoking federal jurisdiction bears the burden of establishing these
elements.”).
With respect to the Guidelines, Plaintiffs’ underlying allegation
(and the injury-in-fact) is that the Guidelines’ publication burdens the
availability of opioid medications to chronic pain patients. Removing
the Guidelines will not facilitate Plaintiffs’ desire for easier access
to opioid medications and treatment for one simple reason – they are a
purely advisory educational tool. The ultimate decision of whether
Plaintiff patients – and other chronic pain patients – will receive
certain opioid medications and treatment is left to their treating
physicians. Removing the Guidelines will not change that fact. Thus,
even assuming arguendo that Plaintiffs established the first two (2)
elements for Article III standing regarding the Guidelines (they do not),
there is not a substantial likelihood that the requested relief will
address Plaintiffs’ alleged injury-in-fact – namely, increasing the
availability of opioid medication and treatment.
In conclusion, it cannot be forgotten that the party invoking
federal jurisdiction bears the burden of establishing standing. Lujan,
504 U.S. at 561. Because this is the summary judgment stage, Plaintiffs
“must set forth by affidavit or other evidence specific facts, which for
purposes of summary judgment motion will be taken to be true,” that
establish Article III standing. Id. Plaintiffs submitted no statement
of facts and no declarations. The only affidavit submitted establishes,
at best, that an injury-in-fact and causal connection exist for claims
tied to the Commission’s conduct. The same cannot be said for claims
tied to the Guidelines’ publication. Moreover, Plaintiffs do not even

ORDER ~ 20

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mention redressability in their briefing, let alone cite facts supporting
redressability. These significant deficiencies fall well short of
Lujan’s defined burden for establishing Article III standing at the
summary judgment stage. Dismissal is appropriate.
2.
Prudential Standing
In addition to Article III’s constitutional standing requirements,
there are three (3) “prudential” standing principles. Chemerinsky,
FEDERAL JURISDICTION at 61. These principles are based not on the
Constitution, but instead on prudent judicial administration. Id. The
first prudential consideration is whether the alleged injury falls within
the “zone of interests” protected by the statute or constitutional
provisions at issue. Air Courier Conference v. Am. Postal Workers Union,
498 U.S. 517, 521 (1991). The second prudential consideration is whether
the complaint amounts to “generalized grievances,” grievances more
appropriately resolved by the legislative and executive branches. Apache
Bend Apartments, Ltd. v. United States, 987 F.2d 1174, 1178 (5th Cir.
1993). The third prudential consideration is whether the plaintiff is
asserting his or her own legal rights and interests. United States v.
Raines, 362 U.S. 17, 22 (1960).
Because Plaintiffs fail to establish Article III standing, there is
no need to address prudential considerations.
Necessity of Evidentiary Hearing
E.
When a district court is presented with contradictory evidence
bearing directly on the issue of standing, such that the district court
is required to resolve factual disputes and make witness credibility
determinations central to the standing issue, the court must hold an

ORDER ~ 21

evidentiary hearing. See, e.g., Bischoff v. Osceola County, Fla., 222
F.3d 874, 881 (11th Cir. 2000) (District court must hold evidentiary
hearing, including live witness testimony, when court was presented with
conflicting affidavits regarding standing issue.); Martin v. Morgan Drive
Away, Inc., 665 F.2d 598, 602 (5th Cir. 1982) (vacating district court’s
order dismissing party for lack of standing without first holding
evidentiary hearing when several fact issues were disputed); Goldberg v.
Kelly, 397 U.S. 254, 269 (1970) (When credibility and veracity are at
issue, written submissions are wholly unsatisfactory basis for decision
on standing.).
Here, there is no need for an evidentiary hearing. The only
submitted evidence creating a factual dispute is Dr. Janes’ Affidavit.
This affidavit only addresses the Commission’s actions as they relate to
injury-in-fact and causal connection. Because there is no admissible
evidence on the remaining element for Article III standing
(redressability) as it relates to the Commission, and because there is
no admissible evidence on any of Article III’s standing elements as it
relates to the Guidelines’ publication, there are no disputed issues
necessitating an evidentiary hearing.
III. Conclusion
Accordingly, IT IS HEREBY ORDERED:
1. Plaintiffs’ Motion for Leave to File Supplemental Brief Re:
Standing (Ct. Rec. 120) is GRANTED;
2. Defendants’ Partial Summary Judgment Motion Under FRCP 56: Re
Standing (Ct. Rec. 81) is GRANTED;

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ORDER ~ 22

3. Defendants’ Partial Summary Judgment Motion Re: Immunities
(Ct. Rec. 94) is DENIED AS MOOT;
4. All pending hearing and trial dates are stricken;
5. All pending motions are denied as moot;
6. Judgment shall be entered in Defendants’ favor; and
7. This file shall be closed.
IT IS SO ORDERED. The District Court Executive is directed to enter
this Order and to provide copies to all counsel.
DATED this 1 day of June 2009.
st

S/ Edward F. Shea
EDWARD F. SHEA
United States District Judge

Q:Civil2008200.MSJ.wpd

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ORDER ~ 23