The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
SHERRI L. RENNER,
Plaintiff,
v. CASE NO. 4:17cv451-RH/CAS
THE SUPREME COURT OF FLORIDA
and THE FLORIDA BAR,
Defendants.
_____________________________/
ORDER OF DISMISSAL
The plaintiff has a history of mental-health treatment. She became a
conditional member of The Florida Bar but eventually stopped complying with her
conditions and was disbarred. She asserts claims for damages against the Bar and
the Florida Supreme Court. This order grants their motions to dismiss.
I
The plaintiff is Sherri L. Renner. The Florida Bar admitted her as member
in 2005 but imposed conditions because of her history of mental-health treatment.
Ms. Renner was required to consult at least monthly with a licensed mental-health
provider, to have the provider submit quarterly reports to the Bar, to submit her
own quarterly statements to the Bar attesting to her compliance with the
conditions, and to pay a quarterly monitoring fee.
Ms. Renner did not contest the conditions at that time. But she asked the Bar
to remove the conditions in 2010, asserting, among other things, that the conditions
were unnecessary and that continuing them would violate the Americans with
Disabilities Act.
Under the Bar’s standard practice, removal of the conditions could occur
only if Ms. Renner paid for an examination by a Bar-approved mental-health
provider and the provider gave a favorable opinion. That did not occur. The Bar
did not respond to Ms. Renner’s request for information on how she could
challenge the conditions. She decided to stop complying with the conditions—her
strategy for challenging the refusal to remove the conditions. At that point the Bar
told her she could challenge its refusal to remove the conditions through a motion
in the Florida Supreme Court, but she decided instead to continue with her strategy
of noncompliance.
The Bar filed a disciplinary petition in the Florida Supreme Court. The Court
disbarred Ms. Renner for willfully failing to comply with her conditions. Neither
the Bar nor the Court provided Ms. Renner an opportunity to present evidence or to
be heard in a meaningful manner on whether the conditions were in fact
unnecessary.
Ms. Renner brought this action for damages against the Bar and the Court.
She asserts claims under the ADA and the Rehabilitation Act of 1973. The
substantive standards under the two statutes are the same in relevant respects, and
for convenience, this order usually refers only to the ADA, not also to the
Rehabilitation Act, except when discussing the Rehabilitation Act’s separate
jurisdictional requirements. See Cash v. Smith, 231 F.3d 1301, 1305 (11th Cir.
2000) (“Discrimination claims under the Rehabilitation Act are governed by the
same standards used in ADA cases.”).
The Bar and the Court have filed separate motions to dismiss the amended
complaint on grounds that include failure to state a claim on which relief can be
granted and Eleventh Amendment immunity. The motions have been fully briefed
and are ripe for a decision.
II
To survive a motion to dismiss for failure to state a claim, a plaintiff must
plead “factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). For purposes of a motion to dismiss, the complaint’s factual
allegations, though not its legal conclusions, must be accepted as true. Id.; see also
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
A motion to dismiss is not the vehicle by which the truth of a plaintiff’s
factual allegations should be judged. Instead, it remains true, after Twombly and
Iqbal as before, that “federal courts and litigants must rely on summary judgment
and control of discovery to weed out unmeritorious claims sooner rather than
later.” Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit,
507 U.S. 163, 168-69 (1993).
A motion to dismiss for lack jurisdiction—this includes Eleventh
Amendment immunity—can properly challenge the sufficiency of a complaint’s
jurisdictional allegations or the sufficiency of the actual facts to establish
jurisdiction. See, e.g., Cable/Home Commc’n Corp. v. Network Prods., Inc., 902
F.2d 829, 855 (11th Cir. 1990). Here the motions assert Eleventh Amendment
immunity primarily based on the amended complaint’s allegations; to that extent
the factual allegations must be accepted as true. The motions also rely on evidence
to establish the facts relevant to Eleventh Amendment immunity from the
Rehabilitation Act claims. To that extent the facts must be determined based on the
evidence, with genuine disputes resolved in the plaintiff’s favor.
III
The ADA prohibits a public entity from discriminating against a “qualified
individual with a disability.” 42 U.S.C. § 12132. A “disability” is “a physical or
mental impairment that substantially limits one or more major life activities,” or “a
record of such an impairment,” or “being regarded as having such an impairment.”
Id. § 12102(1). An individual is “regarded as having such an impairment” if the
individual “has been subjected to an action prohibited [by the ADA] because of an
actual or perceived physical or mental impairment whether or not the impairment
limits or is perceived to limit a major life activity.” Id. § 12012(3)(A).
The amended complaint alleges that Ms. Renner has a history of mental-
health treatment but gives no details. The amended complaint does not allege that
Ms. Renner currently suffers an impairment that substantially limits a major life
activity. Nor does it allege that she ever suffered such an impairment. But the
amended complaint does allege that Ms. Renner suffered discrimination—she was
subjected to burdensome conditions and eventually disbarred—because of a
perceived mental impairment. This is a sufficient allegation that the ADA applies
to Ms. Renner.
IV
Neither side has identified the defendants’ alleged violations with the
precision necessary for proper analysis under the ADA and the Eleventh
Amendment. At some points the two sides have talked past one another, not
understanding the other side’s position. When Ms. Renner’s claims are properly
understood and the wheat is separated from the chaff, there are four alleged ADA
violations.
First, Ms. Renner asserts that by 2010, there was no need for the
conditions—that continuing to require her to comply with the conditions violated
the ADA. Second, Ms. Renner asserts that requiring her to pay for and obtain a
favorable opinion from a Bar-approved mental-health professional violated the
ADA. Third, Ms. Renner asserts that disbarring her without providing a
meaningful opportunity to be heard on whether the conditions were still necessary
violated the ADA. Fourth, Ms. Renner asserts she was disbarred in retaliation for
asserting her rights under the ADA. This order addresses each of the four alleged
violations in turn.
A
Attorneys take on important responsibilities to their clients, to the courts,
and to our constitutional system. States are entitled to regulate attorneys, and all
states do. As part of the regulation, states can properly concern themselves with
mental health. Ms. Renner does not disagree. She has not asserted that it was
improper for The Florida Bar to impose conditions when it admitted her in 2005.
The amended complaint alleges that by 2010 the conditions were no longer
necessary. The amended complaint could perhaps be held deficient for failing to
allege sufficient factual support for this assertion, but requiring a further
amendment would serve no purpose. The Bar surely knows the details, and
requiring them to be included in the amended complaint would compromise Ms.
Renner’s interest in confidentiality while not affecting the outcome. For purposes
of the motions to dismiss, this order accepts as true the allegation that by 2010 the
conditions were no longer necessary. The allegation is not implausible; individuals
sometimes recover from mental-health impairments, just as they sometimes
recover from physical impairments. The defendants do not deny this.
The ADA prohibits the Bar from continuing to require a member with a
disability to comply with unnecessary conditions just because, at an earlier point,
the member’s mental-health history made the conditions appropriate. Determining
when conditions are still necessary is often, perhaps almost always, difficult, but
the Bar cannot keep conditions in place permanently just because doing so is easier
than determining whether the conditions are still necessary. The defendants do not
deny this.
In sum, the Bar may or may not have violated the ADA by refusing to vacate
Ms. Renner’s conditions. But the issue cannot be resolved on the motions to
dismiss. This order assumes without deciding that the conditions were no longer
necessary and that the Bar violated the ADA by keeping the conditions in place.
This does not mean Ms. Renner may recover damages for this violation in
this action. States have Eleventh Amendment immunity from ADA damages
claims unless the conduct that violated the ADA also violated the Fourteenth
Amendment or was congruent and proportional to concerns that animated adoption
of the ADA. See, e.g., Ass’n for Disabled Americans v. Fla. Int’l Univ., 405 F.3d
954, 956-57 (11th Cir. 2005). Failing to remove conditions that were properly
imposed to address an attorney’s history of mental-health treatment does not meet
the prerequisites to abrogation of a state’s Eleventh Amendment immunity. The
Florida Bar and the Florida Supreme Court have Eleventh Amendment immunity
from the damages claim based on this violation.
B
Similarly, requiring Ms. Renner to pay for and obtain a favorable opinion
from a Bar-approved mental-health provider may have violated the ADA. See
Hobbs v. Fla. Bd. of Bar Exam’rs, No. 4:17cv422-RH-CAS (N.D. Fla. Feb. 25,
2019). This order assumes without deciding that this did violate the ADA.
Again, though, the defendants have Eleventh Amendment immunity,
because even if this was a violation of the ADA, it was only a statutory, not a
Fourteenth Amendment, violation. Without the ADA, any claim that a state bar
cannot rely on its own mental-health provider would fall flat. So would any claim
that a state bar cannot require an attorney to pay the provider’s fee. And Ms.
Renner has not met the congruence-and-proportionality standard for this violation.
This result is not changed by the fact that Ms. Renner was not afforded a
hearing on the question whether the conditions were still necessary.
To be sure, under the Fourteenth Amendment, a state must not deprive a
person of “life, liberty, or property, without due process of law.” Ms. Renner had a
protected liberty or property interest in her bar membership. This order assumes
without deciding that she also had a liberty or property interest in the removal of
unnecessary conditions. This means she was entitled to due process. But the
process that was due was not the process she wanted.
The contours of the process that is due in a given context turn on factors
identified in Mathews v. Eldridge, 424 U.S. 319, 335 (1976), and J.R. v. Hansen,
736 F.3d 959, 966 (11th Cir. 2013). Due process often requires an opportunity to
contest the facts that are critical to a decision. This often means there is a right to a
hearing. But due process does not require a hearing on the law—on governing
standards of general applicability.
Mathews provides an illustration. Under the Social Security Act, disability
benefits are available to workers medically unable to engage in substantial gainful
activity. The issue in Mathews was whether, prior to termination of the plaintiff’s
benefits, he was entitled to a hearing on whether he was unable to engage in
substantial gainful activity. Nobody suggested the plaintiff was entitled to a
hearing on the governing standard—on whether benefits should be available only
to workers who were medically unable to engage in substantial gainful activity.
The standard was already in place; the proposed hearing would address only the
proper application of the standard to the plaintiff.
More generally, a person facing a deprivation of a liberty or property interest
is ordinarily entitled to due process on the proper application of a governing
standard to the person’s own individual circumstances. This often means a hearing
to determine the relevant facts—the facts relevant to the proper application of the
governing standard. But a person is not entitled to a hearing on the governing
standard itself—on the standard that applies not only to the person but also to all
others who are similarly situated. This tracks the manner in which courts and
legislatures operate. A court must give an affected individual notice and an
opportunity to be heard because the court will apply the governing standard to that
individual. A legislature, in contrast, enacts laws of general applicability and need
not give an affected individual notice and an opportunity to be heard. The
application of these principles to an administrative agency turns on its role on a
specific matter—whether the agency is establishing general standards or applying
them in individual cases.
The upshot for Ms. Renner is this. She had no right to a hearing on the Bar’s
governing standard—on the uniformly followed requirement for a favorable
opinion from a Bar-approved mental-health provider prior to removal of conditions
imposed on a person with a history of mental-health treatment. The governing
standard may have violated the ADA, but Ms. Renner had no constitutional right to
a hearing on whether that should or should not be the governing standard.
Had there been a genuine dispute about the facts relevant to application of
the governing standard—about whether Ms. Renner had in fact obtained a
favorable opinion from a Bar-approved provider—Ms. Renner would have been
entitled to an appropriate hearing. But there was no dispute about this. Ms. Renner
did not obtain the required favorable opinion. She admitted it at the relevant time
and admits it now. A hearing to determine whether she met the Bar’s general
standard—whether she obtained a favorable opinion from a Bar-approved mental-
health provider—would have served no purpose.
This analysis does not overlook Ms. Renner’s complaint that she was not
told what protocols the Bar-approved mental-health provider would follow or how
the provider would decide whether the conditions were still necessary. A
hypothetical helps explain the point. Suppose the Florida Bar issued board
certifications for construction litigation under which, to be certified, an attorney
had to obtain a favorable verdict in a construction case. And suppose this somehow
was a property right, so that due process was required. An applicant would have a
right to a hearing (or other appropriate due process) on any dispute over whether
the attorney had obtained a qualifying favorable verdict. But if the attorney had
suffered an unfavorable verdict in the attorney’s only construction case, the
attorney would not have a right, as part of the application for board certification, to
a hearing on what the jury actually considered or why it returned the verdict it
returned.
Same here. The standard is that to remove the conditions, the Bar member
must pay for and obtain a favorable opinion from a Bar-approved mental-health
provider. The member is not entitled to a hearing on what the provider considered
or why the provider rendered an adverse opinion.
The result is no different if the requirement for a favorable opinion is viewed
not as the governing general standard but as part of the Bar’s procedure for
applying a general standard of fitness to practice without conditions. On that view,
the Bar-approved mental-health professional is in effect the first-level hearing
officer, obligated to provide Ms. Renner notice and an opportunity to be heard. She
has shown no due-process violation, even on this view, because she was afforded
an opportunity to be heard by the mental-health provider, and no restrictions were
placed on her ability to provide information. The Bar was not constitutionally
obligated to specify in greater detail the factors the mental-health provider could
consider in forming an opinion.
In sum, the Bar’s general standard—the requirement to pay for and obtain a
favorable opinion from a Bar-approved mental-health provider—may have
violated the ADA, but the defendants have Eleventh Amendment immunity from
the damages claim based on any such violation.
C
The Florida Supreme Court disbarred Ms. Renner for willfully failing to
comply with her conditions. If, as this order assumes, keeping the conditions in
place violated the ADA, then disbarring Ms. Renner for failing to comply with the
conditions also violated the ADA. But this was again only a statutory, not a
Fourteenth Amendment, violation.
To be sure, Ms. Renner had a Fourteenth Amendment right to procedural
due process. Had she denied that she violated her conditions, she would have been
entitled to a hearing on that issue. But she admitted it. Had she denied that her
violation was a conscious choice, she would have been entitled to a hearing on that
issue. But again she admitted it. Violating the conditions was what Ms. Renner
decided to do. The Florida Supreme Court issued a show-cause order and afforded
Ms. Renner an opportunity to be heard in writing on whether she should be
disbarred for choosing this course. Due process required nothing more.
Ms. Renner says, though, that she had to violate the conditions because there
was no other way to challenge the Bar’s refusal to vacate them—no other way to
remedy the Bar’s ongoing violation of the ADA. That is not so.
First, she could have sought relief in the Florida Supreme Court. A court
almost always has inherent authority to modify an injunction or similar order with
continuing effect that was entered by the court itself. Ms. Renner’s conditions were
in effect based on the Florida Supreme Court’s own 2005 order approving the
conditions. Ms. Renner notes that the conditions explicitly authorized the Bar, not
Ms. Renner, to file a motion to remove the conditions. But Ms. Renner has pointed
to nothing calling into question the Court’s inherent authority to modify its own
prior order, including on either side’s motion. Before the disciplinary petition was
filed, the Bar told Ms. Renner she could file in the Supreme Court—and the Bar
would oppose on the merits—a motion to terminate the conditions. This made clear
the Bar would not assert that such a motion was procedurally improper. And in any
event, the Florida Supreme Court had authority to issue “all writs necessary to the
complete exercise of its jurisdiction,” including on a matter like this relating to Bar
membership. See Fla. Const. art. V § 3(b)(7).
Second, regardless of whether a remedy was available in the Florida
Supreme Court, Ms. Renner could have filed a complaint in this court against an
appropriate state official—perhaps the Bar’s executive director—alleging the same
ADA violation she now alleges in this action. The Eleventh Amendment would not
have barred such an action. See Ex parte Young, 209 U.S. 123 (1908).
Ms. Renner did not have a constitutional right to violate the conditions
without seeking available judicial review.
D
Finally, Ms. Renner says she was disbarred in retaliation for asserting her
rights under the ADA. She is correct that the ADA includes an antiretaliation
provision. See 42 U.S.C. § 12203. Any disbarment based on retaliation probably
would violate the Fourteenth Amendment, which makes the First Amendment
applicable to the states. Ms. Renner’s retaliation claim thus is not barred by
Eleventh Amendment immunity.
But the retaliation claim fails on the merits. The amended complaint shows
on its face a nonretaliatory basis for the defendants’ actions. The Bar kept Ms.
Renner’s conditions in place based on its standard practice of removing conditions
only based on a favorable opinion from a Bar-approved mental-health provider.
The Supreme Court disbarred Ms. Renner because she willfully violated her
conditions. The Bar and the Court would take these same actions against any
conditionally admitted Bar member who engaged in the same conduct, regardless
of whether the member asserted any right under the ADA. The amended complaint
does not allege facts plausibly suggesting the contrary.
IV
Ms. Renner seeks relief not only under the ADA but also under the
Rehabilitation Act. The substantive standards under the two acts are the same. But
there is an important difference in a state’s ability to assert Eleventh Amendment
in response to claims under the acts.
The Rehabilitation Act applies to a “program or activity” receiving federal
funds. 29 U.S.C. § 794(a). As relevant here, a “program or activity” means “all of
the operations” of a state or local government “department, agency, special
purpose district, or other instrumentality.” Id. § 794(b)(1)(A).
A state waives its Eleventh Amendment immunity from a Rehabilitation Act
claim by accepting federal funds, knowing that an unambiguous condition for
accepting the funds is the waiver of Eleventh Amendment immunity. See Garrett
v. Univ. of Ala. at Birmingham Bd. of Trs., 344 F.3d 1288 (11th Cir. 2003). The
waiver is coextensive with the Act. As relevant here, the waiver extends only to
claims based on conduct of the department that receives federal funds.
The record establishes that neither the Florida Supreme Court nor the Florida
Bar receives federal funds. The Court and the Bar are not part of a “department,
agency, special purpose district, or other instrumentality” that receives federal
funds. The Rehabilitation Act thus does not apply to programs and activities of the
Court or the Bar. This order thus dismisses the Rehabilitation Act claims.
V
For these reasons,
IT IS ORDERED:
1. The motions to dismiss, ECF Nos. 45 and 48, are granted.
2. The claim for violating the Americans with Disabilities Act is dismissed
without prejudice based on Eleventh Amendment immunity to the extent the claim
is based on (a) the requirement for the plaintiff to pay for and obtain a favorable
evaluation from a Bar-approved mental-health provider as a prerequisite to
removal of the conditions on the plaintiff’s Bar membership or (b) the failure to
remove the conditions on the plaintiff’s Bar membership or (c) the plaintiff’s
disbarment.
3. The claim for violating the Americans with Disabilities Act is dismissed
with prejudice, on the merits, to the extent the claim is based on (a) the failure to
provide due process or (b) retaliation.
4. The Rehabilitation Act claim is dismissed with prejudice on the ground
that the Act does not apply to the program or activity at issue.
5. The clerk must enter judgment and close the file.
SO ORDERED on November 1, 2019.
s/Robert L. Hinkle
United States District Judge