Disability Advocates, Inc. v. New York Coal. for Quality Assisted Living, Inc.

26 A.D. Cases 270

45 NDLR P 45

675 F.3d 149

82 Fed.R.Serv.3d 72

DISABILITY ADVOCATES, INC., and United States of America, Plaintiffs–Appellees,

v.NEW YORK COALITION FOR QUALITY ASSISTED LIVING, INC., Movant–Appellant,Andrew M. Cuomo, in his official capacity as Governor of the State of New York, Nirav R. Shah, in his official capacity as Commissioner of the New York State Department of Health, Michael F. Hogan, in his official capacity as Commissioner of the New York State Department of Mental Health, New York State Department of Health, New York State Office of Mental Health, Defendants–Appellants,Empire State Association of Assisted Living, Movant.*

Docket Nos. 10–235(L)

10–251(CON)

10–767(CON)

10–1190(CON).

United States Court of Appeals, Second Circuit.

Argued: Dec. 8, 2010.Decided: April 6, 2012.

Patricia A. Millett (Steven M. Pesner, Robert H. Pees, James P. Chou, and Christopher M. Egleson, on the brief), Akin Gump Strauss Hauer & Feld LLP, Washington DC, for Movant–Appellant New York State Coalition for Quality Assisted Living.

Barbara D. Underwood, Solicitor General of the State of New York (Andrew M. Cuomo, Attorney General, Benjamin Gutman, Deputy Solicitor General, Cecilia C. Chang, Laura R. Johnson, Steven C. Wu, Assistant Solicitors General, on the brief), New York, NY, for New York State Defendants–Appellants.

Andrew G. Gordon (Julie E. Fink, Geoffrey Chepiga, Elizabeth Seidlin–Bernstein, Lindsey Weinstock, and Francine Murray, on the brief), Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY; Cliff Zucker (Timothy A. Clune, on the brief) Disability Advocates, Inc., Albany, NY; Ira A. Burnim, Bazelon Center for Mental Health Law, Washington, DC; Mara A. Kuns, Urban Justice Center, New York, NY; Roger Bearden (Aditi Koethekar, on the brief), New York Lawyers for the Public Interest, New York, NY; and Jeannette Zelhof (Jota Borgmann, on the brief), MFY Legal Services, Inc., New York, NY, for Plaintiff–Appellee Disability Advocates, Inc.Samuel R. Bagenstos, Principal Deputy Assistant Attorney General (Thomas E. Perez, Assistant Attorney General, Jessica Dunsay Silver and Terese Kwon, Attorneys, on the brief), Department of Justice, Civil Rights Division, Appellate Section, Washington, DC, for Plaintiff–Appellee United States of America.Hugh Barber, Assistant Attorney General of Connecticut (on behalf of Richard Blumenthal, Attorney General of Connecticut, Dustin McDaniel, Attorney General of Arkansas, Robert E. Cooper, Jr., Attorney General of Tennessee, Mark L. Shurtleff, Attorney General of Utah, Bruce A. Salzbury, Attorney General of Wyoming), Hartford, CT, for amici curiae States of Connecticut, Arkansas, Tennessee, Utah and Wyoming, in support of New York State Appellants.Christopher Murray (Matthew F. Didora, on the brief), Ruskin Moscou Faltischek, PC, Uniondale, NY, for amici curiae Americare Certified Special Services, Inc. et al., in support of Appellants.David T. Luntz (Lori A. Sievers, on the brief), Hinman Straub, PC, Albany, NY, for Movant Empire State Association of Assisted Living, in support of Appellants.Jordan W. Siev (Christopher A. Lynch, Cameron G. Van Tassell and David J. De Jesus, on the brief), Reed Smith LLP, New York, NY, for amicus curiae Families of Current Adult Home Residents, in support of Appellants.Carla Christofferson (Justine M. Daniels and Christopher A. Adams, on the brief), O'Melveny & Myers LLP, Los Angeles, CA, for amici curiae American Association of Community Psychiatrists et al., in support of Appellees.Steven J. Schwartz (Mollie Richardson, on the brief), Center for Public Representation, Northampton, MA; and Robert J. Alessi (Gregory G. Nickson and Jeffrey D. Kuhn, on the brief), Dewey & LeBoeuf LLP, Albany, NY, for amici curiae Dick Thornburgh (former United States Attorney General) and 30 former state mental health commissioners, in support of Appellees.Elizabeth B. McCallum, Howrey LLP, Washington, DC, for amici curiae C.C. et al. (current and former residents of Adult Homes), in support of Appellees.Antony L. Ryan (Rebecca R. Silber and Alejandro H. Cruz), Cravath Swaine & Moore LLP, New York, NY, for amici curiae The National Disability Rights Network et al., in support of Appellee Disability Advocates.Peter K. Vigeland (Michael Bongiorno, David F. Olsky, Omar Kahn, Natalie Rastin, Leizel A. Ching, on the brief), Wilmer Cutler Pickering Hale and Dorr LLP, New York, NY, for amici curiae The Coalition of Institutionalized Aged and Disabled et al., in support of Appellees.Before: CABRANES and PARKER, Circuit Judges, and KORMAN, District Judge.^**JOSÉ A. CABRANES, Circuit Judge:

The question presented is whether plaintiff Disability Advocates, Inc. (“DAI”)—a private nonprofit organization contracted to provide services to New York State's protection and advocacy (“P & A”) system under the Protection and Advocacy for Individuals with Mental Illness Act (“PAIMI”), 42 U.S.C. § 10801 et seq.—has standing to sue various state agencies and officials on behalf of certain individuals with mental illness residing in New York City for an alleged violation of the “integration mandate” of Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132, and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794.

We conclude that because DAI does not have the “indicia of membership” required of nonmembership organizations for “associational standing,” see Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977), DAI fails to satisfy the standing requirements under Article III of the United States Constitution as interpreted by the Supreme Court.

Because DAI lacks standing, we must also decide whether the intervention of the United States—which occurred after the determination of liability by the United States District Court for the Eastern District of New York (Nicholas G. Garaufis, Judge) but before the imposition of a remedy—was sufficient to cure the jurisdictional defect that would have barred the District Court from hearing the suit as originally brought. We hold that in the circumstances presented here it was not sufficient. We therefore vacate the March 1, 2010 judgment and remedial order of the District Court and dismiss the action for want of jurisdiction.

Background

A. The PAIMI

In 1986, Congress enacted PAIMI ¹ in order to “ensure that the rights of individuals with mental illness are protected” and to “assist States to establish and operate a protection and advocacy system for individuals with mental illness which will ... protect and advocate the rights of such individuals through activities to ensure the enforcement of the Constitution and Federal and State statutes.” 42 U.S.C. § 10801(b)(1), (b)(2)(A).² In line with these objectives, PAIMI conditions certain federal funding for states on the establishment of protection and advocacy (“P & A”) systems. 42 U.S.C. § 10803(2)(A). The designated P & A system may be either an independent state agency or a private entity. 42 U.S.C. § 15044(a), incorporated by reference in 42 U.S.C. § 10802(2). In turn, P & A systems are authorized to “pursue administrative, legal, and other appropriate remedies to ensure the protection of individuals with mental illness who are receiving care or treatment in the State.” 42 U.S.C. § 10805(a)(1)(B).

New York has designated the Commission on Quality of Care and Advocacy for Persons with Disabilities (“CQCAPD”) as the State's P & A system for persons with mental illness pursuant to PAIMI, 42 U.S.C. § 10821.³ See N.Y. Mental Hyg. Law § 45.07(p) ⁴; 42 U.S.C. § 10821. In 1989, CQCAPD entered into a contract with DAI as permitted by 42 U.S.C. § 10804 ⁵ and New York Mental Hygiene Law § 45.07(i).⁶ See Disability Advocates, Inc. v. Pataki, No. 03–cv–3209 (NGG), Zucker Aff. ¶ 6, Docket No. 205 (E.D.N.Y. Dec. 3, 2007) (“Zucker Aff.”).⁷ That contract “designates DAI as an authorized PAIMI agency and ... authorizes DAI to provide protection and advocacy services to individuals with mental illness throughout the state.” Id.

B. Procedural History

On July 1, 2003, DAI initiated this action by filing suit against the Governor of the State of New York, the New York State Department of Health, the New York State Department of Mental Health, and the commissioners of those two agencies (collectively, the “State” or “defendants”) ⁸ on behalf of its “constituents”: individuals with mental illness as defined under 42 U.S.C. § 10802(4), who reside, or might one day reside, in specified “adult homes” in New York City.⁹ Compl. ¶ 9. DAI alleged that the mental health system run by the State violated the “integration mandate” of Title II of the ADA, 42 U.S.C. § 12132, and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, which requires the provision of mental health services “in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 CFR § 35.130(d); see Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 607, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999) (holding that the provision of mental health services in an institutionalized setting when the recipients are capable and willing to live in a manner more fully integrated into the community constitutes a violation of Title II of the ADA, provided that such integration can be reasonably accommodated). DAI sought declaratory and injunctive relief that would require the State to “shift[ ] residents and funds [away] from impacted [sic] adult homes to community-based residential programs” and to end “[t]he State's practice of knowingly placing and maintaining individuals with serious mental illness in impacted [sic] adult homes.” Compl. ¶¶ 118, 165.

After discovery, the State brought a motion for summary judgment challenging, among other things, DAI's standing to sue on behalf of its constituents under PAIMI and Article III of the United States Constitution. The District Court denied the motion for summary judgment and rejected the standing...