RHJ MEDICAL CENTER, INC., Plaintiff, v. CITY OF DuBOIS, Defendant, 754 F. Supp. 2d 723

MEMORANDUM and ORDER OF COURT GIBSON, District Judge. This matter comes before the Court on the Defendant’s Motion for Judgment on the Pleadings and Motion for a More Definite Statement (Document No. 25). Plaintiff filed a Brief in Opposition to Defendant’s Motion for Judgment on the Pleadings and Motion for a More Definite Statement (Document No. 31). Defendant, without requesting leave of court, filed a Reply in Support of Its Motion for Judgment on the Pleadings and Motion for a More Definite Statement (Document No. 32).

The Court DENIES Defendant’s Motion for Judgment on the Pleadings and Motion for a More Definite Statement. “This case presents the familiar conflict between the legal principle of non-discrimination and the political principle of not-in-my-backyard.” New Directions Treatment Services v. City of Reading, 490 F.3d 293, 296 (3rd Cir.2007) (Smith, J.). When an organization submits plans to open a methadone treatment facility, the story usually unfolds as follows. First, after filing the appropriate zoning paperwork, the organization begins preparation to open the facility.

Second, after concerned community leaders learn of this proposal, fears of attracting drug addicts to their town generates massive opposition to the plan. Third, invariably, a town meeting of some kind is held to allow representatives from the methadone clinic to address community concerns. Fourth, the discussions at the town hall meeting primarily focus on the dangers that a methadone clinic poses to the municipality.

Fifth, through some zoning mechanism- — -whether an existing zoning ordinance, or a new one which is enacted for the instant situation— the community finds a reason why the methadone clinic should not be opened. Although in most cases the die is cast following step two, invariably following step five, the organization is left without redress, and is effectively banned from opening a facility in the town. Tragically, the victims of exclusionary zoning tactics— recovering opiate addicts — tend to be those least prepared to fight against such tactics. Left with no other remedy, the organization files suit in court.

The facts presented in this case fall neatly into this paradigm.

FACTS RHJ Medical Center, Inc. (“RHJ”) is a Pennsylvania corporation in the business of operating methadone treatment facilities. (Compl. ¶¶ 15-16.) RHJ opened its first methadone treatment center in 2002 in Hunker, Pennsylvania. (Compl. ¶ 16.) RHJ has met the standards for federal certification and state licensure in outpatient treatment and methadone maintenance. (Compl. ¶¶ 9, 15.) In February 2006, RHJ began to search for a site on which to open a methadone treatment center in the City of DuBois. (Compl. ¶ 4.) The City of DuBois (“the City”) is a Third Class City covering 3.1 square miles with a population of less than 10,000. (Compl. ¶ 20; Answer ¶ 92.) The City’s population consists of 55% low to middle income persons. (Answer ¶ 92.) According to RHJ, the methadone treatment center located closest to the City is in the Borough of Clearfield, 20 miles away, and has a significant waiting list. (Compl. ¶ 24.) Plaintiff reports that as a result, many of the City’s residents make a daily three-hour round trip to the methadone treatment center operated by RHJ in the Borough of Vandergrift. (Compl. ¶ 25.) The City asserts that there are private physicians and other healthcare professionals within the City to provide residents with methadone treatment. (Answer ¶ 24-25,) RHJ chose a site at 994 Beaver Drive, DuBois, Pennsylvania, 15801 (“the site”), and signed a ten-year lease on March 31, 2006. (Compl. ¶¶ 4, 28.) The site was zoned in the “Transitional District” and was previously occupied by an insurance agency. (Compl. ¶¶ 4, 26.) Adjacent to the rear of the site was a sidewalk known as Beaver Meadow Walkway (“the walkway”), which was dedicated as a public park on June 25, 1979. (Compl. ¶27; Answer ¶ 27.) By law at the time, methadone treatment centers were forbidden to operate within 500 feet of a public park unless the municipal governing body voted to authorize such use following public notice and one or more public hearings. 53 P.S. § 10621 (“Section 621”).

In late September or early October of 2006, RHJ’s plans to open a methadone treatment center became public. (Compl. ¶ 30; Answer ¶ 30.) RHJ asserts that they were then subjected to a wave of negative press coverage, including a radio interview in which the mayor of DuBois stated that RHJ would likely not receive approval from the City to open such a facility and compared having a methadone treatment center in the City to “other cities dumping their garbage in DuBois.” (Compl. ¶ 31.) At a work session on October 19, 2006, the DuBois City Council authorized the City Solicitor to draft a letter to RHJ “to advise them that if they still planted] on opening their Center at 994 Beaver Drive, they need[ed] to follow all procedures, including Public Hearings and to remind them that they [we]re still too close to a recreational park (walkway).” (Def.’s Ex. 1; Compl. ¶ 32; Answer ¶ 32.) A copy of this letter (Def.’s Ex. 2) was distributed at a City Council meeting on October 23, 2006, (Compl. ¶ 33) and also mailed to RHJ on that date (Answer ¶ 33).

RHJ opened the methadone treatment center as planned two days later, on October 25, 2006. (Compl. ¶ 34.) The City filed suit in the Clearfield County Court of Common Pleas on October 27, 2006, to enjoin RHJ from operating the methadone treatment facility at the site pursuant to

Section 621. (Compl. ¶ 35; Answer ¶ 35.) The court granted the City a preliminary injunction with a continuance hearing scheduled for November 1, 2006. (Pl.’s Ex. 1.) The parties disagree as to whether or not the court heard oral argument from both sides before granting the injunction. RHJ says it did not (Compl. ¶ 35), while the City says that it did (Answer ¶ 35). The hearing was postponed to December 7, 2006. (Answer ¶ 35.) At that time, RHJ stipulated that the walkway was a public park within the meaning of

Section 621 and that they had not obtained a certificate of use from the City before opening the clinic; and the court granted a permanent injunction until such time as the City approved RHJ’s application following a public hearing and granted a certificate of use. (Def.’s Ex. 3; Compl. ¶ 35; Answer ¶ 35.) In January of 2007, RHJ submitted to the City an application for a public hearing and a request for certificate of use. (Compl. ¶ 36; Answer ¶ 36.) The City provided notice to surrounding property owners, and a public hearing was held on April 23, 2007. (Compl. ¶ 37; Answer ¶ 37.) At a public meeting on May 14, 2007, the City Council voted unanimously to deny RHJ’s application and directed the City Solicitor to prepare a document of findings of fact and conclusions of law to support the decision. (Answer ¶ 38.) The Solicitor’s document was unanimously adopted at the public City Council meeting on May 29, 2007 and was served on RHJ on June 1, 2007. (Answer ¶ 38; Def.’s Ex. 4, 5.) The finding of the City Council was that RHJ had not presented evidence sufficient to justify deviating from the restrictions of

Section 621. (Def.’s Ex. 5 at 6.) The concerns of the Council included the methadone treatment center’s lack of on-site security personnel, lack of means to transport patients to the regional medical facility if necessary, and insufficient parking for the expected number of patients and staff. (Def. Ex. 5 at 4-5.) The Council also noted that RHJ had not performed “any need assessment to determine whether its center was needed in the area and had no statistics concerning area drug use.” (Def.

Éx. 5 at 5.) On June 15, 2007, the Third Circuit Court of Appeals ruled that § 621 violated the Americans With Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, et seq., and the Rehabilitation Act (“RA”), 29 U.S.C. §§ 701, et seq. New Directions Treatment Services v. City of Reading, 490 F.3d 293 (3d Cir.2007). RHJ moved to dissolve the Clearfield County Court of Common Pleas injunction in November 2007, based on New Directions. (Compl. ¶ 43.) The City opposed this motion. Id.

The motion was granted and the injunction dissolved on March 6, 2008. (Pl.’s Ex. 3.) According to RHJ, at that time, the City refused to reconsider the earlier decision to deny the methadone treatment center a certificate of use. (Compl. ¶ 44.) The City responded that RHJ did not make any further petition to the City for any permits. (Answer ¶ 44.) Also following the Third Circuit decision in New Directions, at a November 21, 2007, work session, the City Council heard first reading of Ordinance Number 1720, which amended City zoning in a number of ways, including prohibiting “methadone or drug treatment clinics or centers” in the “Transitional District” and permitting medical facilities “with the exception of methadone treatment facilities and other drug treatment facilities of any kind” in the “Commercial-Highway Zoning District.” (PL’s Ex. 4.) Ordinance Number 1720 • also amended City zoning to expressly permit “drug treatment clinics or facilities including methadone treatment facilities or clinics” in the “O-l Office District.” (PL’s Ex. 4.) The ordinance passed after a second reading at the City Council meeting on November 27, 2007. (PL’s Ex. 4; Compl. ¶45; Answer ¶ 45.) In July 2008, RHJ terminated its lease on the site. (Compl. ¶ 44.) Plaintiff filed a six-count complaint against Defendant.

Count I asserts a violation of the Fourteenth Amendment’s Due Process and Equal Protection Clauses for Defendant’s actions under 53 P.S. § 10621. Count II asserts a claim under the Rehabilitation Act for Defendant’s actions under 53 P.S. § 10621. Count III asserts a claim under Title II of the ADA for Defendant’s actions under 53 P.S. § 10621. Count IV asserts a violation of the Fourteenth Amendment’s Due Process and Equal Protection Clauses for Defendant’s actions under its new zoning ordinance. Count V asserts a claim under the Rehabilitation Act for Defendant’s actions under its new zoning ordinance.

Count VI asserts a claim under Title II of the ADA for Defendant’s actions under its new zoning ordinance. Defendant makes six claims why judgment should be entered based on the pleadings. First, Plaintiff lacks standing. Second, Plaintiff is barred by res judicata from asserting Counts I — III. Third, Plaintiff is estopped from raising Counts I — III due to waiver. Fourth, Defendant is immune from actions taken in accordance with a court order. Fifth, the Court should not impose an equitable remedy— to do so would infringe on principles of federalism. Sixth, Plaintiff is barred by the statute of limitations.

All six of Defendant’s claims fail, and its motion is denied. Defendant’s motion for a more definite statement is also denied. STANDARD OF REVIEW Defendant filed a motion for judgment on the pleadings. FedR.CivP. 12(c) (“After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings.”) In the past, a motion for judgment on the pleadings under Fed.R.CivP. 12(

c) was analyzed under the same standard as a 12(b)(6) motion, wherein the Court must “accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the non-moving party.” Mele v. Fed. Reserve Bank, 359 F.3d 251, 253 (3d Cir.2004); Rocks v. City of Philadelphia, 868 F.2d 644, 645 (3d Cir.1989); D.P. Enters., Inc. v. Bucks County Cmty. Coll., 725 F.2d 943 (3d Cir.1984). That was the standard. No longer. There is a “new sheriff in town” now policing Fed.R.CivP. 12(c), and his name is “Twiqbal.” Bell Atlantic Corporation v.

Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal, — U.S. —, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), or Twiqbal as they are commonly known, have caused a sea change in federal pleading standards. In Iqbal, the Supreme Court “provide[d] the final nail-in-the-coffin for the ‘no set of facts’ standard” derived from Conley v. Gibson. Following Iqbal, conclusory or “bare-bones” complaints will not survive a motion to dismiss: “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 129 S.Ct. at 1949.

Under Twombly and Iqbal, in order to survive a motion to dismiss, a plaintiffs complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Iqbal, quoting Twombly at 570, 127 S.Ct. 1955.

In Iqbal, Justice Kennedy writing for the majority, concluded that a claim has “facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, citing Twombly at 556, 127 S.Ct. 1955. “The Supreme Court’s ruling in Iqbal emphasizes that a plaintiff must show that the allegations of his or her complaints are plausible.” Fowler v. UPMC Shadyside, 578 F.3d 203 (3rd Cir.2009).

Following Iqbal, the District Court must dismiss a complaint that pleads facts that are “merely consistent with” a defendant’s liability, if the complaint “stops short of the line between possibility and plausibility of ‘entitlement to relief.’ ” Iqbal, quoting Twombly, at 557, 127 S.Ct. 1955. In Fowler v. UPMC Shadyside, 578 F.3d 203 (3rd Cir.2009), the Third Circuit provided the test district courts should apply when considering a motion to dismiss under Iqbal; Therefore, after Iqbal, when presented with a motion to dismiss for failure to state a claim, district courts should conduct a two-part analysis.

First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint’s well-pleaded facts as true, but may disregard any legal conclusions. Iqbal at 1949. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a “plausible claim for relief.” Id. at 1950. In other words, a complaint must do more than allege the plaintiffs entitlement to relief. A complaint has to “show” such an entitlement with its facts. See Phillips, 515 F.3d at 234-35.

As the Supreme Court instructed in Iqbal, “[wjhere the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]’-‘that the pleader is entitled to relief.’ ” Iqbal, 129 S.Ct. at 1949. This “plausibility” determination will be “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. Fowler, at 210-211.

While the Third Circuit has not definitively resolved this issue, a number of district courts within the Third Circuit, as well as other Courts of Appeals have applied the Iqbal standard to motions filed under Fed.R.Civ.P. 12(c). This Court is inclined to agree, though this decision will have several consequences that may not have been discussed elsewhere. For decades, granting a motion for judgment on the pleadings was only appropriate where the movant “clearly establishes that no material issue of fact remains to be resolved and that he is entitled to judgment as a matter of law.” Jablonski v. Pan Am.

World Airways, Inc., 863 F.2d 289, 290 (3d Cir.1988) (citing Society Hill Civic Assoc. v. Harris, 632 F.2d 1045, 1054 (3d Cir.1980)). Generally, federal courts were reluctant to grant a Rule 12(

c) Motion for Judgment on the Pleadings, because it provides for

summary disposition of a party’s claim on the merits before discovery. See Cardio-Med. Assoc. v. Crozer-Chester Med. Ctr., 536 F.Supp. 1065, 1072 (E.D.Pa.1982); Southmark Prime Plus, L.P. v. Falzone, 776 F.Supp. 888, 891 (D.Del.1991). These prior standards mirrored the previous notice pleading standard articulated in Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) — but Iqbal changed the game.

No longer are cases dismissed only if “plaintiff can prove no set of facts in support of his claim,” but rather a viable complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Iqbal, quoting Twombly at 570, 127 S.Ct. 1955. Iqbal effected not only motions to dismiss, but has also impacted motions for judgments on the pleading, and imported the higher burden of “plausibility.” Applying the Iqbal standard will likely make it tougher for complaints to survive motions under Fed.R.Civ.P. 12(c).

Yet, to do otherwise would frustrate Iqbal In many cases, motions filed under Fed. R.Crv.P. 12(

c) and 12(b)(6) are complimentary and largely interchangeable — the key difference being that the right to file motions under Fed.R.Civ.P. 12(b)(6) is waived if an answer is filed. A plaintiff should not be able to benefit from a weaker standard and higher probability of success under Fed.R.Civ.P. 12(

c) than he would under Fed.R.Civ.P. (b)(6). The burden of proof on the Plaintiff should increase at each stage of litigation. If the Plaintiff bears the higher “plausibility” standard to challenge a motion to dismiss, a lower standard should not apply later if a motion for judgment on the pleadings is subsequently filed. If different standards were to apply, defendants attempting to have cases dismissed may cease to rely on the less strict standard for Fed.R.Civ.P. 12(c) — which would have a lower probability of success — and proceed to file motions for

summary judgment. Motions for

summary judgment are significantly more time consuming and cumbersome than motions for judgment on the pleadings. This additional litigation step would in turn serve to increase costs and frustrate judicial economy in cases which could have been resolved at the motion for judgment on the pleadings stage. Imposing the “plausibility” standard for Fed.R.Civ.P. 12(

c) helps to maintain the status quo — as much as possible following the changes posed by Iqbal — -and avoid unnecessarily nudging cases towards

summary judgment when a motion for judgment on the pleadings would suffice. Iqbal has also impacted the manner in which courts must assess subject matter jurisdiction, even when considering a motion for judgment on the pleadings. Historically, when considering whether to dismiss a case for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1), the Court generally “must accept the allegations in the complaint as true and determine whether they are sufficient to invoke its jurisdiction.” Common Cause of Pa. v. Pennsylvania, 558 F.3d 249, 257 (3d Cir.2009). See also, McNutt v. Gen.

Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); McNabb v. United States, 54 Fed.Cl. 759, 763 (2002) (“If a defendant or the court challenges jurisdiction^] ... the plaintiff cannot rely merely on allegations in the complaint, but must instead bring forth relevant, competent proof to establish jurisdiction.”). Now, the Plaintiff “has the burden of establishing that subject matter jurisdiction exists within the parameters of the ‘plausibility’ standard established by Twombly and Iqbal when confronted with Defendant’s 12(b)(1) motion to dismiss.” Sanchez v.

United States, 707 F.Supp.2d 216 (D.P.R.2010). If a Defendant challenges subject matter jurisdiction in a motion to dismiss or a motion for judgment on the pleadings, or if the court raises this issue sua sponte, Fed.R.Civ.P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”), the Court should apply the standard recognized in Sanchez. ANALYSIS I. Standing In order to obtain standing, Plaintiff must traverse a jurisdictional labyrinth that would make Daedalus envious.

In this case, the Minotaur takes not the form of part-man and part-bull, but rather coalesces from an amalgam of complex jurisdictional questions — determining attenuated third party standing, finding whether an association is imminent under

Article III, identifying whether prospective patients suffer from a qualified disability, and answering whether associational standing warrants equitable and compensatory relief. This chimeral conundrum is exacerbated by two decades of precedents that have not fully addressed the constitutional limitations on adjudication for associational standing. This memorandum will address how these issues have swirled together into a jurisprudential maelstrom, and perhaps, to some degree, calm the waters and provide some clarity in a confounding area of the law. The labyrinth in this ease winds as follows.

First, in order to avail itself of the protections of the ADA and RA, Plaintiff must establish third party standing by showing an “association” with an individual with a disability. In this case, because no disabled persons were joined in the case or even identified in the complaint, Plaintiff can only receive standing based on a relationship or association with a patient. Second, because Plaintiff was unable to open up the methadone clinic, it was unable to service any patients. Any patients could only be prospective.

Nonetheless, our precedents have construed the ADA and RA as evincing Congress’s intent to grant third party standing to entities that have a prospective association with disabled persons. Third, Plaintiff — which never actually opened the methadone clinic due to the city’s zoning decision — must show that the opening of the clinic and admittance of patients was “imminent.” Associational standing notwithstanding, this court could not take cognizance of a fledgling clinic that has not taken enough steps towards establishing the requisite association, lest our jurisdiction traverse the boundaries of

Article III. In this case, because Plaintiff took sufficient steps towards opening its doors for business, the opening of the clinic is considered imminent, and

Article III standing is satisfied. Fourth, even if the prospective patient suffers from a disability per se, Plaintiff must resolve a statutory Gordian knot and show that a curious “carve out” exemption — aimed at allowing employers to discharge employees with drug addictions — is inapplicable in the context of methadone clinics. Congress provided for an exemption for patients, separate from employees, engaging in drug treatment programs— even if those individuals have a current drug addiction.

Fifth, even if the requisite association is established, and the opening of the clinic is imminent, Plaintiff must prove that the prospective patients — none of whom have been ascertained — would be protected by the ADA or RA. Merely having an impairment, such as an opioid addiction is inadequate; rather, the disability must substantially impact a major life activity. The Supreme Court’s precedents dictate that inquiries into a person’s disabilities must be an individualized present examination.

This would seem to render generalized prospective examinations — the approach several other courts have undertaken — a Sisyphean task. Yet in this case, the Court finds that a serious opioid addiction that warrants admission to a methadone clinic, with the attendant daily disruptions of life activities in order to obtain the treatment, could satisfy this test. This finding would obviate the need for an individualized, fact intensive inquiry.

Sixth, if Plaintiff shows an “association” with an individual with a disability who is protected by the ADA and RA, exemptions notwithstanding, Plaintiff must show that it, RHJ — and not any associated disabled patients — was injured in violation of the ADA and RA. How can an entity be discriminated against by a statute aimed at protecting individuals with disabilities? This counterintuitive standard seems to be in tension with the text of the statute, but comports with subsequent guidance from the DOJ and relevant precedents from some — but not all — Circuits.

If Plaintiff shows that it was discriminated against, standing is established in order to bring suit. Seventh, even if the Plaintiff shows it was injured in violation of the ADA and RA, and can bring suit, the question remains whether standing exists for equitable relief as well for compensatory damages. Associational standing exists to grant third parties the right to sue on behalf of others. The benefit of such litigation should inure to the benefit of those aggrieved. Generally speaking, the third party is not the aggrieved party. Rather, the third party is suing on behalf of wronged individuals.

Thus, equitable relief — ordering a city to issue a zoning permit, for example — would seem to be an appropriate remedy. In contrast, compensatory damages — lost profits, for example — would not directly benefit wronged disabled persons. For claims of damages, the Court considers whether the third party itself — and not aggrieved individuals— was injured. In such situations, compensatory damages would be appropriate because the benefit would inure to the injured party — the entity — regardless whether any individuals are actually injured.

The Court finds that the Plaintiff meets all of these requirements, and after a journey worthy of Theseus through the heart of the labyrinth, the Minotaur is slain, and the Plaintiff remains in federal court, with standing to proceed on all of its claims. a. ADA and RA Grant Third Party Standing The Court starts from first principles. The objects to which “the judicial authority of the union ought to extend to” are enumerated in

Article III of our Constitution. Federalist No. 80 (Hamilton). The bounds of the judicial power are limited to

Article Ill’s “cases” and “controversies.” Lujan, at 560, 112 S.Ct. 2130. The “cases” and “controversies” requirements “serve to identify those disputes which are appropriately resolved through the judicial process,” Lujan, at 560, 112 S.Ct. 2130 citing Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990). While some of the elements of standing “express merely prudential considerations that are part of judicial self-government, the core component of standing is an essential and unchanging part of the case-or-controversy requirement of

Article III.” Lujan, at 560, 112 S.Ct. 2130 citing Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). Generally, a “plaintiff ... must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (citations omitted). However, “Congress may grant an express right of action to persons who otherwise would be barred by prudential standing rules.” Id. at 501, 95 S.Ct. 2197.

In certain cases, standing may exist because of statutorily created rights: “[T]he standing question in such cases is whether the constitutional or statutory provision on which the claim rests properly can be understood as granting persons in the plaintiffs position a right to judicial relief.” Warth, at 500, 95 S.Ct. 2197. Where Congress grants a right of action to an entity or association, the entity may assert standing either in its own right or on behalf of its members. Warth, at 511, 95 S.Ct. 2197. [A]n association has standing to bring suit on behalf of its members when: (

a) its members would otherwise have standing to sue in their own right; (

b) the interests it seeks to protect are germane to the organization’s purpose; and (

c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Hunt v. Washington State Apple Adver. Comm’n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). The ADA and RA are statutes in which Congress has granted third party standing.

The regulation implementing Title II of the ADA provides, “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) (emphasis added). This provision establishes the basis for associational standing. The “prudential limits imposed in pure associational standing cases do not apply to” statutory grants of associational standing. Addiction Specialists, 411 F.3d 399, 407 (3rd Cir.2005).

This broad conception of standing does indeed “extend standing to the full limits of

Article III.” Id. So “long as this requirement [of

Article III] is satisfied, persons to whom Congress has granted a right of action, either expressly or by clear implication, may have standing to seek relief on the basis of the legal rights and interests of others, and indeed, may invoke the general public interest in support of their claim.” Warth, 422 U.S. at 501, 95 S.Ct. 2197. In Addiction Specialists, the plaintiff was denied a permit to open a methadone clinic, and sought a declaration that the city’s denial of the permit violated the ADA and RA. Addiction Specialists, Inc. v. The Township of Hamilton, Et Al., 1:04-CV-696 (W.D.P.A. Sept. 8, 2004).

Relying on 28 C.F.R. § 35.130(g) — which provides “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 ” — the Third Circuit held that a methadone clinic could bring suit on its own behalf. Addiction Specialists, 411 F.3d 399 (3rd Cir.2005).

The Court expressly rejected the Seventh Circuit’s holding to the contrary in Discovery House, which held a methadone clinic could not sue for damages on its own behalf under the ADA and RA Id. citing Discovery House, 319 F.3d at 280 (7th Cir.2003). The Third Circuit found that the Seventh Circuit test “ignores that the protections of the ADA and RA have been extended to shield entities themselves from discrimination.” Addiction Specialists, at 407 (emphasis added).

The court noted that “[although ASI [“Addiction Specialists”] is protected by these statutes only by virtue of its association with disabled individuals, ASI’s standing to sue arises from its own alleged injuries, not those of its clients.” Addiction Specialists, at 407 (emphasis added). The broad remedial purposes underlying the ADA and the RA do not limit relief to “qualified individuals with disabilities.” Addiction Specialists, at 405 (citing MX Group, Inc. v. City of Covington, 293 F.3d 326, 334-35 (6th Cir. 2002); Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 47 (2nd Cir.1997)).

Rather, the protections of the ADA are not limited to actual persons, as “any person,” has been interpreted to include “individuals as well as entities.” Addiction Specialists, at 406. The Third Circuit “has conclusively settled that the proprietors of a proposed methadone clinic have standing to seek relief both on their own behalf and on behalf of their clients under the ADA and Rehabilitation Act.” New Directions, at 300 citing (Addiction Specialists, 411 F.3d 399, 405-408 (3rd Cir.2005)).

The Third Circuit noted that the Discovery House court “assumes that an entity bringing suit under the ADA and RA must necessarily assert the rights of its members rather than bringing suit ‘in its own right.’ ” Addiction Specialists, at 407 citing (Discovery House, 319 F.3d at 280 (7th Cir.2003)). This rule is premised on the questionable assumption that a methadone clinic “has a claim to standing under the ADA and RA only because it runs a business which provides services — like dispersing methadone — to persons presumably covered by those Acts.” Discovery House, at 280 (emphasis added).

The Seventh Circuit postulated that if the plaintiff “were running a plumbing business, it could hardly claim relief under either statute.” Discovery House, at 281. This “provide services” rationale seems to conflict with the guidance given in the Department of Justice’s Technical Assistance Manual, the creation of which was mandated by

an act of Congress. When drafting the ADA, Congress delegated to the Attorney General the responsibility to “render technical assistance to individuals and institutions” affected by the ADA in order to provide guidance to this, and other regulations in the ADA. 42 U.S.C. § 12206(c)(1). Under this authority, the Department of Justice issued the Title II Technical Assistance Manual, which aimed to “assist individuals and entities in understanding their rights and duties under the Act.” The Americans with Disabilities Act, Title II Technical Assistance Manual, http://www.ada.gov/taman2.html.

Section II-3.9000, titled “Discrimination on the basis of association,” provides an

interpretation of 28 C.F.R. § 35.130(g)— the provision the courts interpreted in Addiction Specialists and Discovery House: “In addition to familial relationships, the prohibition covers any type of association between the individual or entity that is discriminated against and the individual or individuals with disabilities, if the discrimination is actually based on the disability.” Id. As long as the discrimination is based on a disability, any type of association suffices to grant third party standing.

Illustration 2 in the Manual illustrates this concept: “[a] local government could not refuse to allow a theater company to use a school auditorium on the grounds that the company has recently performed at an HTV hospice.” Id. As the Sixth Circuit remarked, “the theater company would have a right of action because of the wrong done to it.” MX at 335. Simply put, as long as the theater company had an “association” with disabled HIV hospice patients, even though none of the patients were injured or discriminated against, the theater company was wronged, and had standing to sue.

Contrary to the assertions of the Discovery House court, the entity need not “provide services” to disabled persons in order to obtain standing. A plumbing business, like a theater company, would be able to receive protection under the ADA. Accordingly, the Third Circuit rejected the standard from the Seventh Circuit which held that a methadone clinic has standing “only because it provides services ... to persons covered by those Acts.” Addiction Specialists, at 407 citing Discovery House at 281 (emphasis added).

If a plumbing business performed sewage work for a home of disabled persons, and a local government decided not to hire that plumbing business because of its association with disabled persons, under the Third Circuit and Technical Assistance Manual’s understanding of the law, the plumbing business would have been injured by loss of profits, and have standing under the ADA. Through the ADA and RA, Congress has allowed an entity, such as a methadone clinic, to assert standing on behalf of a disabled third party. b.

An “Association” with a Prospective Patient Generates Third Party Standing A methadone clinic has third party standing if it has an association with disabled patients. The plain text of the statute permits entities to bring suit on behalf of disabled individuals with whom they have an . “association.” 28 C.F.R. § 35.130(g). This much is clear. What is unclear, however, is whether a methadone clinic that never opened — and thus never treated any actual patients — can claim standing based on a prospective association.

The definition of “association,” and whether the association can be prospective, presents several wrinkles. In this case Plaintiff did not join any patients in the suit, and did not name any patients — current or prospective — in the complaint.

Plaintiff provided no details as to who would frequent the clinic beyond conclusory allegations that they intended to “provide comprehensive, medically supervised and licensed outpatient methadone treatment directed at rehabilitating persons living in DuBois and its surrounding community who require the treatment to alleviate their opiate dependency.” Elsewhere Plaintiff noted that “RHJ targets clients with a primary dependence on opiates.” Defendant asserts that Plaintiff has not demonstrated the requisite “relationship or association” with any disabled individuals under the ADA or RA.

Defendant notes that Plaintiff has not named a single patient in the caption of the complaint and only refers to “prospective patients,” Plaintiff counters that it has standing to assert a claim under the ADA or the RA even if the entity’s relationship with the disabled individual is “purely prospective.” Addiction Specialists presented a fact pattern similar to the instant case. Addiction Specialists v. Township of Hampton, 411 F.3d 399 (3rd Cir.2005). ASI (“Addiction Specialists Incorporated”) sought to open a methadone treatment facility in the Township of Hampton, Pennsylvania (“Township”). Id. at 403.

ASI entered into a lease for a property in Hampton and submitted a “Change of Use Application” with the Township. While the proposed location of the clinic was zoned as “highway commercial district” — which permitted drug stores, hospitals, medical offices and clinics — at the time Pennsylvania law treated methadone clinics differently from other medical facilities. Id. at 403.

The Municipalities Planning Code (“MPC”) prohibited the establishment of methadone clinics — but not other types of medical clinics — “within 500 feet of an existing school, public playground, public park, residential housing area, child-care facility, church, meetinghouse or other actual place of regularly stated religious worship.... ” Id. citing MPC § 621 (codified at 53 P.S. § 10621) [“ § 621”]. At first, the Township granted ASI’s permit. Id. However, one week later, the Township informed ASI that there was a “problem” involving their proposed facility. Id.

After a hearing — where a number of Township officials and residents expressed their opposition to the establishment of a methadone treatment facility in Hampton — the Township found that the subject property was within 500 feet of a school and a public park and therefore rescinded its approval of ASF’s permit. Id. The Township found that a travel agency located next door to the subject property— which offered on-site training to students enrolled in a travel and tourism class at the Community College of Allegheny County — qualified as a “school” within the meaning of § 621. Id.

The Township also determined that the “Depreciation Lands Museum” was a “public park” within the meaning of § 621. Id. ASI filed an appeal from the Township’s zoning decision with the Court of Common Pleas of Allegheny County, alleging that “the Township acted arbitrarily and capriciously and abused its discretion by determining that the travel agency qualified as a school and that the museum qualified as a public park” Id. at 405.

Additionally, ASI alleged that the denial of access to health services that ASI would provide to disabled individuals constituted unlawful discrimination under the “Pennsylvania Human Relations Act (“PHRA”), 43 P.S. §§ 952, et seq.; the Americans With Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, et seq.; and the Rehabilitation Act (“RA”), 29 U.S.C. §§ 701, et seq.” Id. at 405. While the land use appeal was pending in state court, ASI filed a federal complaint in the Western District of Pennsylvania, alleging violations of the United States Constitution, the Pennsylvania Constitution, the ADA, and RA.

Even though standing was not addressed in their initial briefs to the Court, on appeal the Third Circuit noted that it was “required to raise issues of standing sua sponte if such issues exist.” Addiction Specialists, at 405. The parties did not dispute “that the broad language of the ADA and RA evidences a Congressional intent to confer standing on entities like ASI to bring discrimination claims based on their association with disabled individuals.” Mat 405. Despite the fact that no patients were joined in the suit, the Third Circuit held that the clinic had standing to bring the claim. In MX Group v.

City of Covington, a case favorably cited by the Third Circuit in Addiction Specialists, MX Group attempted to open a methadone clinic in Covington, Kentucky. 293 F.3d 326, 328-29 (2002). Initially, the City awarded MX Group a zoning permit, but after “town residents expressed their displeasure regarding the proposed clinic at a City Commission meeting,” the city held a hearing regarding the application. Id. at 329. Emotions at the meeting ranged “from ‘proper decorum’ to anger.” Id. at 329.

After a tenant in the building where the clinic was to be located filed an appeal, the Covington Board of Adjustments held a hearing. Id. at 329. Witnesses testified that there was no need for a methadone clinic in Covington, for-profit methadone clinics “spawn criminal activity,” methadone clinics spur “drug use and/or trafficking and drug trade, violence, shootings and death,” and witnesses expressed concern “about the safety of the neighborhood children.” Id. at 329. The Board of Adjustments subsequently revoked the zoning permit. Id. at 330.

When MX Group attempted to locate the clinic at another site, the City informed the plaintiff that a methadone clinic “was not a permitted use in any zone in the city.” Id. at 330. The City amended the zoning code, which “completely foreclosed Plaintiffs opportunity to locate in the city,” Id. at 330-31. The facts in Addiction Specialists and MX Gfl'oup are quite similar to each other, and similar to the facts in the instant case. In both cases, a methadone clinic signed a lease, and submitted all of the appropriate paperwork to open a facility.

Following a series of local zoning decisions, the town decided to deny the clinic the requisite permit. Relying on 28 C.F.R. § 35.130(g), both courts found that the clinic had an “association” with disabled patients, and thus had “standing to seek damages on its own behalf.” Addiction Specialists, at 408; MX Group, at 335. In both cases no patients were joined in the suit, and none were identified in the complaint. Yet, in neither of these opinions did the Circuit Court specifically address the issue central to the instant case — all of the patients with whom the methadone clinic associated were prospective.

However, even though not specifically addressed, it is clear that because standing is a jurisdictional matter, the courts could not have proceeded unless an association with prospective patients created standing. If

Article III is only satisfied by having an association with a present patient, standing could not have been found in these cases. Implicit in the courts’ holdings in Addiction Specialists and MX Group is the principle that a relationship with patients, even those not yet ascertained, can be sufficient to generate standing. An alternative holding would present somewhat of a Catch-22. Under the Defendant’s understanding, a methadone clinic could only bring a claim under the ADA or RA if actual patients are identified.

But how can a clinic treat actual patients— that is people with whom they “have” an actual relationship — before the clinic is allowed to open? If a town consistently denies an entity the opportunity to open a clinic, all patients, whether named in the complaint or not, must be purely prospective. Assume a plaintiff named several patients who signed up for services at the clinic prior to the issuance of a zoning decision. These patients could have never received any drug treatment services.

The Defendant could argue quite convincingly that these patients are still prospective, due to the fact that they have not received any treatment, and have simply signed up on a list. Under this approach an entity will not be protected by the ADA or RA unless they provide treatment to patients in a clinic. But if the entity cannot open — perhaps due to discrimination by a municipality that violates the ADA or RA — and cannot treat any actual plaintiffs, the entity would never possess standing. That is, unless an association with prospective patients is found to satisfy

Article III. If the Court were to accept Defendant’s line of reasoning, an entire class of recovering drug addicts would be excluded from the protections of the ADA and RA. This position stands in conflict with Addiction Specialists and MX Group, and more importantly, the text of the ADA and RA. While defendant emphasizes the use of the present-tense word have in the ADA, this phrasing does not connote the requirement that the patient must in fact be a current patient.

Rather, the statute requires that the entity must have an association with a disabled individual — the meaning of association, and how attenuated that relationship is with the third party entity, is the key to providing a proper construction to this statute. At what point does a prospective relationship become relevant for purposes of constitutional standing? Because, the “broad language of the ADA and RA enforcement provisions evidences a Congressional intent to extend standing to the full limits of

Article III,” Addiction Specialists, at 407, in order to define the contours of an association, the Court must look to the outer bounds of all of our jurisdictional inquiries —

Article III. c.

Article HI Standing is Satisfied When Association with Disabled Person is “Imminent” While questions of associational standing and “injury in fact” are generally distinct inquiries, these two concepts have blurred, especially in the context of standing based on prospective patients under the ADA and RA. In order for an entity that seeks associational standing to suffer an injury under the ADA or RA, the entity must have an “association” with a disabled person. 28 C.F.R. § 35.130(g).

While Third Circuit precedents have held that an entity itself can suffer an injury — that is experiencing discrimination in violation of the ADA or RA — an injury in the absence of an association still lacks standing. Whether an association is too attenuated to constitute standing is a question that tests the contours of

Article III. In order to determine if the association remains within the confines of

Article III, the court considers the Supreme Court’s standing jurisprudence with a focus on “injury in fact”— more precisely, whether the injury is “actual or imminent.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) citing (Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) (emphasis added)). The Court’s discussion of “injury in fact” in Lujan v. Defenders of Wildlife is instructive.

Lujan involved a challenge to a rule promulgated interpreting the Endangered Species Act of 1973 (ESA), 87 Stat. 892, as amended, 16 U.S.C. § 1536, so as to render it only applicable to actions taken against endangered species within the United States or on the high seas, but not to actions taken against endangered species in foreign nations. Lujan, at 558-59, 112 S.Ct. 2130. Respondent, an organization dedicated to wildlife conservation, filed suit, seeking a declaratory judgment that the new regulation was in error as to the geographical scope.

Respondents claimed they were injured by this rule change, as the decrease in funding for endangered species living in foreign nations would “increase[ ] the rate of extinction of endangered and threatened species.” Lujan, at 563, 112 S.Ct. 2130. On appeal, the Supreme Court considered whether respondents had standing to bring this suit. Writing for the majority, Justice Scalia remarked that “the irreducible constitutional minimum of standing contains three elements”: First, the plaintiff must have suffered an “injury in fact” — an invasion of a legally protected interest which is (

a) concrete and particularized ... and (

b) actual or imminent, not “conjectural” or “hypothetical,” Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be “fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court.” Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.” [Simon v. Eastern Kentucky Welfare Rights Organization ] Id., [426 U.S. 26] at 38, 43 [96 S.Ct. 1917, 48 L.Ed.2d 450 (1976) ].

Lujan at 560-561, 112 S.Ct. 2130 (citations omitted). First, the Court considered whether the respondents suffered an injury in fact. The Court conceded that the “the desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purpose of standing.” Lujan, at 562-63, 112 S.Ct. 2130. “But the ‘injury in fact’ test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured.” Lujan, at 563, 112 S.Ct. 2130 citing Sierra Club v. Morton, 405 U.S, 727, 734-35, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972).

The Court required respondents to show that that “one or more of respondents’ members would thereby be ‘directly’ affected apart from their ‘special interest’ in th[e] subject.’ ” Lujan, at 563, 112 S.Ct. 2130 citing Sierra Club, at 735, 739, 92 S.Ct. 1361. While two of the Respondents — Joyce Kelly and Amy Skilbred — had previously visited the habitats of endangered species in Egypt and Sri Lanka, respectively, neither had actually seen any endangered species. Lujan, at 563-64, 112 S.Ct. 2130. Ms.

Skilbred expressed an intent to return to Sri Lanka, “but confessed that she had no current plans.” Lujan, at 564, 112 S.Ct. 2130. The Court found that these facts made no “showing how damage to the species will produce ‘imminent’ injury to Mses. Kelly and Skilbred.” Lujan, at 564, 112 S.Ct. 2130.

Justice Scalia wrote that a mere “intent” to return is “simply not enough” as “ ‘some dajd intentions — without any description of concrete plans, or indeed even any specification of when the some day will be — do not support a finding of the ‘actual or imminent’ injury that our cases require.” Lujan, at 564, 112 S.Ct. 2130 (emphasis added). Because the harm was not “imminent,” the Court found that the respondents did not suffer an injury in fact, and lacked standing. Lujan, at 565-67, 112 S.Ct. 2130.

While the statutory regimes are quite dissimilar, the underlying jurisdictional issues of Lujan and the instant case bear many similarities. In Lujan, plaintiffs claimed standing based on injuries to prospective endangered species. In the case sub judice, Plaintiff claims standing based on injures to prospective patients. While the Supreme Court in Lujan found that the harm was not “imminent,” the facts in this case dictate a different result. In contrast with the conjectural associations of Mses.

Kelly and Skilbred, RHJ took numerous, specific, unambiguous, and concrete steps towards opening up a methadone clinic — and fostering an association with patients. RHJ “signed a ten-year lease for the site at 994 Beaver Drive on March 31, 2006, and soon after commenced renovations of the space to meet the standards of the Pennsylvania Department of Health.” (Compl. ¶ 28).

RHJ also took the requisite steps towards obtaining the appropriate licenses, as in “September 2006, representatives from the Division of Drugs and Alcohol of the Pennsylvania Department of Health and the DEA conducted an on-site inspection of RHJ’s DuBois facility.” (Compl. ¶ 30). Further, prior to the scheduled opening date, “RHJ incurred expenses relating to the hiring of staff, setting up utilities, and advertising, in addition to rent and renovations.” (Compl. ¶ 29).

Defendant asserts that “from a practical standpoint,” granting standing based on an “anticipated relationship” would permit “entities to recover § 1983 damages” if an entity is “created under the guise that it intends’ to treat disabled individuals.” (Def.’s Rep. p. 6.) The Court is cognizant of the perils of granting standing based on prospective associations. This was the concern that animated Justice Scalia’s framework in Lujan.

If a plaintiff could gain standing under the ADA or RA by merely expressing an intent to open a methadone clinic, the courts would be flooded with premature associations, and in many cases, disingenuous litigants who seek to take advantage of lax standing law. Justice Scalia’s opinion, rejecting the “some day” approach to standing in Lujan, counsels against adhering to such a liberal standard. Lujan, at 564, 112 S.Ct. 2130. In a concurring opinion in Lujan, Justice Kennedy remarked that “[w]hile it may seem trivial to require that Mses.

Kelly and Skilbred acquire airline tickets to the project sites or announce a date certain upon which they will return ... this is not a case where it is reasonable to assume that the affiants will be using the sites on a regular basis.” Lujan, at 579, 112 S.Ct. 2130 (Kennedy, J., concurring). Similarly, while “it may seem trivial” to require an organization to sign a lease or obtain the proper licenses to open a methadone clinic, in the absence of these steps, it is not reasonable to assume that a methadone clinic will in fact open.

If a plaintiff takes such concrete steps, the injury should be considered imminent. Third party standing is an essential tool for methadone clinics to enforce the rights of those with debilitating drug addictions. Drug addicts are the prototypical “discrete and insular minorities” who are the “outs” in society. See McDonald v.

Chicago, 561 U.S.-, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010) (Stevens, J., dissenting) (“Conversely, we have long appreciated that more ‘searching’ judicial review may be justified when the rights of ‘discrete and insular minorities’ — groups that may face systematic barriers in the political system — are at stake.”) citing United States v. Carolene Products Co., 304 U.S. 144, 152-53 n. 4, 58 S.Ct. 778, 82 L.Ed. 1234 (1938). See City of Cleburne v.

Cleburne Living Ctr., 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985), John Hart Ely, Democracy And Distrust: A Theory Of Judicial Review 77-78 (1980) (arguing that the courts should ensure that all groups receive sufficient representation and access to the political and legislative processes).

Allowing treatment facilities, which undoubtedly have better legal resources to bring suit on behalf of patients — to give those with disabilities equal access to the courts and ensure that their disabilities are not used to discriminate against them by improperly restricting their access to drug addiction treatment — vindicates the protections that the ADA and RA champion. While the “broad language of the ADA and RA enforcement provisions evidences a Congressional intent to extend standing to the full limits of

Article III,” Addiction Specialists, at 407, the association with the patients must be imminent to fall within the ambit of

Article III. Without this association, Plaintiff cannot recover for an injury under the ADA, even if the Plaintiff itself suffers the injury. At this stage, the Court considers Iqbal’s “plausibility” standard for construing a motion for a judgment on the pleadings. Ashcroft v. Iqbal, — U.S. —, 129 S.Ct. 1937, 1959-1960, 173 L.Ed.2d 868 (2009). Following the Third Circuit’s framework in Fowler v. UPMC Shadyside, the Court first separates the “factual and legal elements of [the] claim.” 578 F.3d 203, 210 (3rd Cir.2009).

Second, the Court determines “whether the facts alleged in the complaint are sufficient to show that the plaintiff has a “plausible claim for relief.” ” Id. at 210. The legal elements to this claim are quite distinct from the factual elements. The legal elements require that an association with disabled patients needs to be “imminent” in order to satisfy the requirements of

Article III. The facts show that RHJ took several concrete steps in order to open up its clinic. Combining these factual elements with the legal elements yields a “plausible” claim. The complaint alleges that RHJ took certain concrete steps towards opening of the methadone clinic and establishing a relationship with patients. This association was imminent, and not hypothetical or conjectural. The Court finds that this claim is “plausible,” and meets the requirements of Iqbal. Even though the association was imminent, the requirements of

Article III have not yet been fully addressed, and the standing inquiry continues. d. Standing and Remedies Standing is inextricably linked to the type of relief sought. In this case, RHJ requests both equitable relief and damages. For equitable relief, Plaintiff seeks a declaration that the Defendant’s actions and inaction of failing to issue an occupancy permit violates the Constitution, the ADA, and the RA. Plaintiff also seeks an injunction enjoining Defendant from continuing to violate the Constitution, the ADA, and the RA.

Finally, Plaintiff seeks an injunction forcing the City to issue Plaintiff a permit to operate a methadone treatment facility. Additionally, Plaintiff seeks “damages for the harm it experienced as a result of Defendant’s discriminatory practices,” as well as reasonable attorney fees and costs. Before addressing whether plaintiff has standing, the Court first separates the analysis based on the type of relief sought. The Supreme Court held in Friends of the Earth, Inc. v.

Laidlaw Environmental Services (TOC), Inc. that “a plaintiff must demonstrate standing separately for each form of relief sought.” 528 U.S. 167, 185, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). See also City of Los Angeles v. Lyons, 461 U.S. 95, 109, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (notwithstanding the fact that plaintiff had standing to pursue damages, he lacked standing to pursue injunctive relief). These considerations are especially relevant in the context of associational standing. In Warth v.

Seldin, the Supreme Court commented that whether an association has standing to invoke the court’s remedial powers on behalf of its members depends in substantial measure on the nature of the relief sought. If in a proper case the association seeks a declaration, injunction, or some other form of prospective relief, it can reasonably be supposed that the remedy, if granted, will inure to the benefit of those members of the association actually injured.

Indeed, in all cases in which we have expressly recognized standing in associations to represent their members, the relief sought has been of this kind. 422 U.S. 490, 515, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (emphasis added). In short, “standing is not dispensed in gross.” Lewis v. Casey, 518 U.S. 343, 358, n. 6, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). In Addiction Specialists, the plaintiff sought a declaration that the defendant’s denial of a permit to open a methadone clinic was unconstitutional, and requested an order requiring the defendant to grant the plaintiff a permit. Addiction Specialists, Inc. v.

The Township of Hamilton, Et Al., 1:04-CV-696 (W.D.Pa. Sept. 8, 2004). The plaintiff also sought an order enjoining the defendant from engaging in further discriminatory acts. Id. Additionally, the plaintiff sought $1,000,000 for lost profits under 42 U.S.C. § 1983. Id. Due to the pendency of concurrent state court proceedings, relying on Younger abstention, Younger v. Harris, 401 U.S.37, 91 S.Ct. 756, 27 L.Ed.2d 669 (1971), the District Court “abstain[ed] from deciding plaintiffs claims for equitable relief,” and dismissed those claims. Id.

Because the claims for damages “could be adequately raised and addressed in the state proceedings” the court dismissed those claims. Id. The District Court did not address the issue of standing. On appeal, the Third Circuit found the District Court “abused its discretion by abstaining from exercising jurisdiction” over the constitutional and statutory rights claims. Addiction Specialists, 411 F.3d 399, 411 (3rd Cir.2005).

While, the Court affirmed the “District Court’s decision to abstain from [plaintiffs] claims for declaratory and injunctive relief,” the Court reversed the lower court’s opinion regarding damages, as Younger abstention was not proper for these claims. Id. at 414-415. In light of the posture of the case, the Third Circuit did not consider standing with respect to the equitable claims. Rather the Third Circuit’s thorough and reasoned analysis on standing only focused on damages, and not the equitable claims.

In the final paragraph of the standing section, the Court noted: In recognizing that ASI has standing to assert its claims under § 1983, the ADA, and the RA, we of course pass no judgment as to the merits of those claims. Moreover, we do not reach the issue of whether ASI’s lost profits would be the correct measure of damages if and when this suit reaches the damages stage. We hold only that ASI has standing to seek damages on its own behalf.

We therefore will not affirm the District Court’s dismissal on standing grounds, and we will go forward to determine whether the District Court properly applied the Younger abstention analysis to ASI’s claims. Addiction Specialists, at 408 (emphasis added). This rationale applies to damages only, and makes no mention of the declaratory and injunctive relief requested. Subsequent discussions in the opinion regarding the equitable claims consider Younger abstention, and not

Article III standing. The standing analysis in Addiction Specialists only seems to apply to the claims of damages. The Third Circuit has not directly addressed the issue of standing for claims of equitable relief based on prospective associations. Because “a plaintiff must demonstrate standing separately for each form of relief sought,” Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 185, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000), the Court first considers standing for claims of equitable relief.

When equitable relief is awarded in cases of third party standing, the benefit will inure to the third party- — in this case, the patients seeking methadone treatment — as well as to the entity — the methadone clinic — itself. For example, if the Court were to grant Plaintiffs requested equitable relief, and order the issuance of a permit, the patients of the methadone clinic, as well as the methadone clinic itself would benefit. The patients would benefit from their ability to receive services in the City of DuBois. RHJ would benefit from the ability to open up a new business and earn profits.

Such was the case in MX Group, Inc. v. City of Covington, 293 F.3d 326 (6th Cir.2002). In this case, the 6th Circuit considered whether a methadone clinic had standing to seek injunctive relief, and obtain a permit to open a clinic. See Id. at 327 (“The district court also entered an order and injunction, which provided that Defendants’ ordinance, essentially banning Plaintiffs proposed methadone clinic from operating anywhere in the City of Covington, violated the ADA,”). While the remedy of damages was argued before the District Court, the issue was not resolved and was not presented on appeal.

See MX Group, Inc. v. City of Covington, 106 F.Supp.2d 914, 920-21 (E.D.Ky.2000) (“plaintiff having reserved on the issue of damages”). The Sixth Circuit found that the methadone clinic had standing, as it was “an entity suing primarily on its own behalf, because of injury it suffered as a result of its association with individuals with disabilities.” MX Group, at 335 (emphasis added). The right to sue, resulting from the injury suffered, is “primarily on [the entity’s] own behalf.” In other words, it is not entirely on the entity’s own behalf.

If the right is not entirely on the entity’s own behalf, on whose behalf is the residuum? The residuum logically and textually can only derive from the “individuals with disabilities” with whom the entity had an “association.” In this case, when seeking equitable relief, the standing to sue was in part due to the entity’s injury, and in part due to the injury of the patients. Unlike the opinion in MX Group, in Addiction Specialists the Third Circuit considered the plaintiffs request for both equitable relief and damages under § 1983. Addiction Specialists, at 407.

While the Third Circuit favorably cited MX Group, which held that an entity has standing if it is “suing primarily on its own behalf,” MX Group, at 335, the Court took what could be construed as a somewhat contradictory stance on this issue. The Court remarked that “ASI has standing to seek damages on its own behalf under § 1983.... As with its claims under the ADA and RA, ASI does not assert its § 1983 claims on behalf of individuals with disabilities, but rather brings these claims primarily on its own behalf’ Addiction Specialists, at 407 (emphasis added).

In the same paragraph the Court wrote that ASI had standing to seek damages “on its own behalf’ and “primarily on its own behalf’ — these are not the same thing. Elsewhere, the Third Circuit wrote “We hold only that ASI has standing to seek damages on its own behalf,” Addiction Specialists, at 408 (emphasis added). In light of the entire opinion, it would seem that the Third Circuit endorsed the former standard, and held that ASI had standing to seek damages solely “on its own behalf’ — and not merely primarily on its own behalf.

This holding — when seeking equitable relief, the standing to sue is due solely to the entity’s injury — is buttressed by the Third Circuit’s rejection of the Seventh Circuit’s holding in Discovery House v. City of Indianapolis, 319 F.3d 277 (7th Cir.2003). In Discovery House, a methadone clinic sued under the ADA and RA for damages, namely lost profits. Id. With respect to standing, the Seventh Circuit asked whether a methadone clinic could obtain “relief which perhaps indirectly will benefit its clients, but which primarily is designed to benefit its for-profit business.” Discovery House, at 280.

The recipient of the benefits in a suit for damages — just the entity — contrasts with the recipients of the benefits in a suit for equitable relief— the benefit will inure to the third party as well as to the entity. The Seventh Circuit chose to limit the scope of relief, noting that “the remedies we may find (other than those specifically set out in the statute) must, at the very least, be those which directly benefit the disabled.” Discovery House, at 280 (emphasis added).

In short, “the one thing that is clear, however, is that lost profits are not expressly provided,” as “we see no way that either the ADA or the RA contemplates a recovery for lost profits for a business like that of the Discovery House.” Discovery House, at 280-281. Because damages will only benefit the entity, and not the third party disabled patient, the Seventh Circuit did not permit this claim to proceed. The opinion in Discovery House only considered damages as the clinic had received an award of “over a million dollars in damages for lost profits.” Discovery House, at 280.

In this case, the plaintiff did “not seek equitable relief,” and only sought damages. Discovery House, at 280. The Seventh Circuit on appeal only considered whether the “ADA or the RA grant Discovery House standing to recover lost profits.” Discovery House, at 280. The Third Circuit discussed the holding of Discovery House, in the context of its own analysis for standing for third party claims. While the Seventh Circuit rejected the plaintiffs claims for damages, the court favorably cited other precedents that “eoncern[ed] equitable relief to allow facilities to exist where they had been prohibited.” Id. at 280.

The Court noted that “for purposes of this case, we have no need to agree or disagree with those courts because the reasoning advanced in those cases does not address the problem posed by this case” where the plaintiff only seeks damages. Id. at 279-280. The analysis the Third Circuit rejected and “declined to follow,” Addiction Specialists, at 407, only pertained to damages, and not to equitable relief. It seems that both the Third and Seventh Circuit recognize this bifurcation of standing based on the relief sought.

The reasoning in Warth endorses this distinction between standing for equitable claims and standing for damages. Chief Justice Burger recognized that in all of the cases the Supreme Court had considered, the requested remedy for third party standing was equitable, and not damages. Warth, at 515, 95 S.Ct. 2197 (“Indeed, in all cases in which we have expressly recognized standing in associations to represent their members, the relief sought has been of this kind [equitable].”).

This makes sense in light of the fact that the equitable remedy “will inure to the benefit of those members of the association actually injured,” and not purely to the benefit of the association itself. Warth, at 515, 95 S.Ct. 2197. In contrast, when the association is seeking damages, the benefit will only inure to the association itself. These precedents suggest that courts impose different standing requirements based on the remedy sought. If the remedy sought is injunctive relief, then

Article III requires that the injury should be suffered by the third parties as well as the entity itself. In this case, the benefit of the injunctive relief inures to the advantage of both of the injured parties — the patients and the entity. In contrast, if the remedy sought is damages, then

Article III requires that the injury need only to be suffered by the entity, and not the patients. In this case, the advantage of the damages inures only to the injured party— the entity, and not the patients. Assume a methadone clinic is denied a permit, cannot open, and suffers lost profits. The monetary damages could only possibly inure to the benefit of the methadone clinic itself. Other types of damages — future damages, incidental damages, punitive damages, attorney fees, and filing fees — will similarly only benefit the clinic.

It could be argued that a clinic that receives compensatory damages will be better funded, and will be able to provide better services to the patients. However, the inquiry here focuses on the injury at the time of the denial of the permit, and not potential future benefits to the members. See Discovery House, at 280 (noting that damages “perhaps indirectly will benefit its clients, but ... [they are] primarily ... designed to benefit its for-profit business.”).

To paraphrase the American Humane Association’s seal of approval, which is emblazoned during the end credits of all movies produced by the Screen Actors Guild, no patients were harmed during the attempted-opening of this methadone clinic. No injury, no benefit, no standing. The Plaintiffs complaint recognizes this distinction. While praying for damages, the complaint sought “damages for the harm it experienced as a result of Defendant’s discriminatory practices,” (Compl. ¶ 20.) (emphasis added). That is, the damages it experienced, and not any damages to patients.

Assume a methadone clinic is denied a permit, cannot open, and as a result of this denial, disabled patients are unable to receive methadone treatment and drug counseling. The clinic, on behalf of the patients, sues for equitable relief to obtain the permit and stop the discrimination. This is a different case from the facts of Discovery House, in that patients were in fact injured. Equitable relief— such as injunctions, declarations, specific performance, and estoppel — will benefit the patients, as well as the clinic.

Unlike compensatory damages, if the court orders the issuance of a permit, the clinic will open, and the injury the patients suffered — discrimination and denial of treatment — will be remedied. Now, the patients can receive treatment at the clinic. Similarly, the injury the entity suffered— the inability to open a clinic — will also be remedied. With a permit, the clinic can open and operate. There is an injury to both parties, a benefit will inure to both parties, and therefore standing exists.

In a footnote in the reply brief, Plaintiff notes: “RHJ only asserts Counts II, III, V, and VI on its own behalf and does not assert any such counts on behalf of its prospective patients.” (Pl.’s Rep., p. 5, n. 1.) Although RHJ does not assert any claims on behalf of named plaintiffs, RHJ still needs to rely on “prospective patients” with drug-addiction problems — the patients referred to in the complaint — in order to invoke the ADA or RA. To read this disclaimer any other way would amount to a waiver.

Plaintiff would be effectively admitting that the ADA or RA is inapplicable, as RHJ by itself, without any associated disabled persons is unable to claim protection of these acts. The Court will not find a waiver here in the absence of clear language to that effect. In essence, the discrimination against RHJ yielded two separate and cognizable injuries. The first injury — the lost profits by the clinic due to the denial of the permit — was only suffered by the clinic itself, and dictates a remedy of damages.

The second injury — the discrimination against the patients who were unable to receive treatment from the unopened clinic — was suffered in part by the patients, and in part by the clinic. This injury dictates an equitable remedy. Accordingly, the analysis for standing in this case is bifurcated based on the type of remedy. e. Standing for Equitable Claims For claims of equitable relief, the standing to sue is in part due to the entity’s injury, and in part due to the injury of the third party.

In this case, because no third parties were identified, Plaintiff needs to rely on prospective patients to generate standing for equitable claims. Relying on prospective patients — that is patients not yet ascertained — raises two issue. First, the ADA and RA contain nearly identical “carve-out” sections that provide that individuals “currently engaging in the illegal use of drags” will not be considered “qualified” under the statute.

Without naming any patients, how could the City be expected to show whether these patients are engaging in the use of drugs, and thus exempted from the protections of the ADA and RA? Second, how can the Defendant know whether a prospective patient is an individual who possesses a “known disability?” If a prospective patient does not have a disability, the ADA and RA would not apply, and plaintiffs case would fail. Both of these issues would be essential elements of the City’s defense. i.

Statutory Carve-Out for Current Drug Use Defendant notes that because no patients are named, the City would be unable to prove whether any of the patients are currently “engaging in the illegal use of drugs.” Without this knowledge, Defendant cannot show if the patients would be protected by the ADA or RA, or would be exempted by the so-called “carve-out” provision. If an individual has used illegal drugs “recently enough so that continuing use is a real ongoing problem,” he cannot claim the protection of the RA or ADA. Brown v. Lucky Stores, Inc., 246 F.3d 1182, 1188 (9th Cir.2001).

This “carve-out” provision allows employers to discharge workers who engage in the illegal use of drugs, but prevents employers from discharging recovering addicts who are no longer using drugs. While this provision makes sense in the context of employment law — as most reported cases interpreting this provisions emerged from the workplace — it makes little sense as applied to methadone clinics, where the patients must be “engage[ed] in the illegal use of’ opioids for at least one year in order to be admitted.

As the Third Circuit noted in New Directions, this statutory carve-out is “an odd fit for” cases involving methadone clinics. New Directions Treatment Services v. City of Reading, 490 F.3d 293, 309 (3d Cir.2007). The carve-out was intended to ensure that employers could discharge employees who were actually under the influence while at work and that employers could not discharge employees who were recovering addicts but were, at the time of any personnel action, drug free. See id. (quoting H.R. Rep. No. 101-596, at 62 (1990), U.S. Code Cong. & Admin. News 1990, pp. 565, 570-571 (Conf. Rep.)).

This provision makes its first appearance at 42 U.S.C. § 12114(a). The carve out provision is repeated nearly verbatim — not verbatim as the Third Circuit suggested in New Directions, as there are several slight changes — in two portions of the ADA, Sub-chapter I and Subchapter IV. Subchapter I, which only pertains to employment matters, provides “[f|or purposes of this sub-chapter, a qualified individual with a disability shall not include any employee or applicant who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use,” 42 U.S.C. § 12114 (emphasis added).

Subchapter IV governs Miscellaneous Provisions, and applies to all cases governed by the ADA, and not just employment situations — including discrimination of patients attending a methadone clinic. This provision provides “[f]or purposes of this chapter, the term ‘individual with a disability’ does not include an individual who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use.” 42 U.S.C. § 12210 (emphasis added).

The language in Subchapter I refers to “employees or applicants” while the language in Subchapter IV uses the broader term of “individual.” While the carve out’s inclusion in Subchapter I makes sense, as this provision fits neatly into employment paradigms, its inclusion in Subchapter IV fits poorly into situations dealing with methadone clinics. The broader provision in Subchapter IV appears to consume the provision in Subchapter I. However, Congress made several important changes to distinguish the provision affecting employment and the provision affecting all of the ADA. The most significant distinction is

section (c), which provides: (

c) Health and other services. Notwithstanding subsection (

a) of this

section and

section 12211(b)(3) of this title, an individual shall not be denied health services, or services provided in connection with drug rehabilitation, on the basis of the current illegal use of drugs if the individual is otherwise entitled to such services. 42 U.S.C. 12210(c) (emphasis added). The RA contains a nearly identical provision. This clause, which is not included in Subchapter I, speaks directly to the matter before the Court.

Even if an individual is “currently engaging in the illegal use of drugs,” 42 U.S.C. 12210(a), if that person is receiving “services provided in connection with drug rehabilitation,” that person “shall not be denied health services” on the “basis of current illegal drug use if the individual is otherwise entitled to such services.” 42 U.S.C. § 12210(c). In other words, even assuming that RHJ’s prospective patients were currently engaging in the illegal use of drugs, if they would be otherwise entitled to such drug counseling services, they would still be eligible for protection under the ADA or RA.

It would seem that this provision was drafted specifically to remedy situations wherein individuals who currently engage in drug use seek the services of a methadone clinic. This provision so understood recognizes the broad remedial purposes of the ADA and RA with respect to individuals recovering from a drug addiction. Invariably, the people who sign up for drug rehabilitation programs are either “currently engaging in the illegal use of drugs,” 42 U.S.C. 12210(a), or have used illegal drugs “recently enough so that continuing use is a real ongoing problem.” Brown, 246 F.3d at 1188.

In fact, in order to be admitted to a methadone clinic under federal law, a person needs to have had an opioid addiction for at least one year. People who abstain from drug use have little need for methadone clinics. If the ADA and RA were interpreted to exempt from its protections individuals with drug addic

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