# Legacy Health v. State of Oregon

> District Court, D. Oregon · January 3, 2023

URL: https://www.frixlaw.com/law-library/cases/10395486

## Case

- **Court:** District Court, D. Oregon
- **Decided:** January 3, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10395486

## How later opinions describe it (automated extraction)

- holding Younger abstention appropriate where “noncriminal proceedings bear a close resemblance to proceedings criminal in nature”

## Opinion text

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

LEGACY HEALTH; LEGACY GOOD No. 3:22-cv-00573-HZ
SAMARITAN HOSPTIAL AND
MEDICAL CENTER; LEGACY MOUNT OPINION & ORDER
HOOD MEDICAL CENTER; LEGACY
MERIDIAN PARK HOSPITAL dba
LEGACY MERIDIAN PARK MEDICAL
CENTER; and LEGACY EMANUEL
HOSPITAL & HEALTH CENTER dba
LEGACY EMANUEL MEDICAL
CENTER,

Plaintiffs,

v.

VAL HOYLE, in her official capacity as
Commissioner of the Oregon Bureau of
Labor and Industries; DUKE SHEPARD, in
his official capacity as Deputy Commissioner
of the Oregon Bureau of Labor and Industries;
and OREGON BUREAU OF LABOR AND
INDUSTRIES,

Defendants.
Paula A. Barran
Richard C. Hunt
Barran Liebman LLP
601 SW Second Avenue
Portland, OR 97204

Attorneys for Plaintiffs

Alexander Charles Jones
Brian Simmonds Marshall
Oregon Department of Justice
100 SW Market Street
Portland, OR 97201

Attorneys for Defendant

HERNÁNDEZ, District Judge:
Plaintiffs Legacy Health, Legacy Good Samaritan Hospital and Medical Center, Legacy
Mount Hood Medical Center, Legacy Meridian Park Hospital, and Legacy Emanuel Hospital &
Health Center bring this action against Defendants the Oregon Bureau of Labor and Industries
(“BOLI”), Val Hoyle in her official capacity as Commissioner of BOLI, and Duke Shepard in his
official capacity as Deputy Commissioner of BOLI. Plaintiffs bring a claim seeking a declaratory
judgment that declares a BOLI administrative rule—Oregon Administrative Rule (“O.A.R.”)
839-020-0050—to be invalid. Plaintiffs also seek a declaration under 42 U.S.C. § 1983 that
Defendants violated their employees’ First Amendment rights, violated the Eighth Amendment
Excessive Fines Clause, and violated the Fourteenth Amendment Equal Protection Clause by
enforcing O.A.R. 839-020-0050 against them.
Defendants move to dismiss all claims under Federal Rule of Civil Procedure 12(b)(1),
asserting: (1) the claims against them are barred by sovereign immunity; (2) the Court should
abstain under Younger v. Harris, 401 U.S. 37 (1971); and (3) Plaintiffs lack standing to assert
their First Amendment claim. Defendants further move to dismiss on the grounds that Plaintiffs
fail to state a claim upon which relief may be granted under Federal Rule of Civil Procedure
12(b)(6). For the reasons stated below, the Court grants Defendants’ motion.
BACKGROUND
Oregon Revised Statute § (“O.R.S.”) 653.261(1)(a) authorizes the BOLI Commissioner
to “adopt rules prescribing such minimum conditions of employment . . . in any occupation as

may be necessary for the preservation of the health of employees.” Such rules may include
“minimum meal periods and rest periods, and maximum hours of work[.]” O.R.S. 653.261(1)(a).
The rules “regarding meal periods and rest periods do not apply to nurses who provide acute care
in hospital settings if provisions of collective bargaining agreements entered into by the nurses
prescribe rules concerning meal periods and rest periods.” O.R.S. 653.261(3).
Pursuant to O.R.S. 653.261, BOLI adopted an administrative rule “to prescribe minimum
meal periods and rest periods for the preservation of the health of employees.” O.A.R. 839-020-
0050(1). O.A.R. 839-020-0050(2) states:
(a) Except as otherwise provided in this rule, every employer shall provide to each
employee, for each work period of not less than six or more than eight hours, a meal
period of not less than 30 continuous minutes during which the employee is relieved
of all duties.
. . .
(c) An employer is not required to provide a meal period to an employee for a work
period of less than six hours. When an employee’s work period is more than eight
hours, the employer shall provide the employee the number of meal periods listed
in Appendix A of this rule.1
(d) Timing of the meal period: If the work period is seven hours or less, the meal
period is to be taken after the conclusion of the second hour worked and completed
prior to the commencement of the fifth hour worked. If the work period is more
than seven hours, the meal period is to be taken after the conclusion of the third
hour worked and completed prior to the commencement of the sixth hour worked.

1 When the length of the work period is between ten and fourteen hours, employees must receive
at least three rest breaks and one meal break. O.A.R. 839-020-0050, Appendix A. When
employees work between fourteen and twenty-hours, they must receive at least two meal breaks.
Appendix A does not specify the timing of those breaks.
The administrative rule allows an exception to the prescribed meal and rest periods for
employees who are subject to a collective bargaining agreement. See O.A.R. 839-020-
0050(7) (“The provisions of this rule regarding meal periods and rest periods may be
modified by the terms of a collective bargaining agreement if the provisions of the
collective bargaining agreement entered into by the employees specifically prescribe

rules concerning meal periods and rest periods.”).
Plaintiffs are a group of hospitals who employ nurses to work 12-hour shifts. First
Amended Complaint (“FAC”) ¶ 24, ECF 13. The nurses who work in Plaintiffs’ hospitals
do not belong to unions and are not under a collective bargaining agreement. Because
shifts start early in the workday, the parties assert that under O.A.R. 839-020-0050,
nurses must take their lunch breaks within a two-hour window during the mid-morning.
FAC ¶ 26. Plaintiffs claim that the rule requires nurses they employ to take their meal
breaks early in their shifts rather than midway through, which leads to physical
discomfort and hunger during the later portions of their shifts. FAC ¶ 26.

On February 26, 2019, a group of nurses who work for Plaintiffs met with
Defendant Shepard to bring attention to the burden that that BOLI’s meal timing rules
creates for them. FAC ¶ 184; Shepard Decl. ¶ 2, Ex. 1, ECF 15. Plaintiffs claim that
Defendant Shepard provided “erroneous and incomplete information about how to
address a change in the meal timing rules and constraints.” FAC ¶ 184. In doing so,
according to Plaintiffs, Defendant Shepard “caused the nurses to understand that the only
remedy for their concerns was to join a union.” FAC ¶¶ 66, 185.
On April 16, 2019, BOLI served Plaintiffs Good Samaritan Hospital, Mount Hood
Medical Center, and Meridian Park Hospital each with a Notice of Intent to Assess
Penalties (“NOI”) for 5,156 alleged violations of O.R.S. 653.261.2 FAC ¶ 42. Then on
December 21, 2021, while the proceedings were pending, BOLI served new NOIs on the
three Plaintiff hospitals as well as Plaintiff Legacy Emanuel Hospital. FAC ¶ 48. BOLI
seeks penalties totaling $8,727,000 from the four entities. FAC ¶ 48. On January 4, 2022,
each Plaintiff hospital filed an answer to the respective NOI, raising defenses that include

Defendants’ violation of the Eighth Amendment Excessive fines clause, preemption by
federal statutes, and Defendants’ failure to follow the proper rulemaking requirements.
Jeffries Decl. Ex. 1-4, ECF 16. Hearings in the enforcement proceedings are scheduled in
February, March, and April 2023. Jeffries Dec. Ex. 5.
STANDARDS
I. Federal Rule of Civil Procedure 12(b)(1)
A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(1)
addresses the court's subject matter jurisdiction. The party asserting jurisdiction bears the burden
of proving that the court has subject matter jurisdiction over their claims. Kokkonen v. Guardian

Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
A Rule 12(b)(1) motion may attack the substance of the complaint's jurisdictional
allegations even though the allegations are formally sufficient. See Corrie v. Caterpillar, Inc.,
503 F.3d 974, 979-80 (9th Cir. 2007) (the court treats a motion attacking the substance of a
complaint's jurisdictional allegations as a Rule 12(b)(1) motion); Dreier v. United States, 106
F.3d 844, 847 (9th Cir. 1996) (“[U]nlike a Rule 12(b)(6) motion, a Rule 12(b)(1) motion can
attack the substance of a complaint's jurisdictional allegations despite their formal

2 Under O.R.S. 653.356(1), the BOLI Commissioner “may assess a civil penalty not to exceed
$1,000” against persons or entities who violated O.R.S. 653.261.
sufficiency[.]”) (internal quotation omitted). Additionally, when ruling on a motion under Rule
12(b)(1), the court may consider evidence outside the pleadings to resolve factual disputes.
Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009); see also Dreier, 106 F.3d at 847 (a
challenge to the court's subject matter jurisdiction under Rule 12(b)(1) may rely on affidavits or
any other evidence properly before the court).

A challenge to standing is appropriately raised under Rule 12(b)(1). Maya v. Centex
Corp., 658 F.3d 1060, 1067 (9th Cir. 2011) (“lack of Article III standing requires dismissal for
lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1)”) (emphasis
omitted); Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010)
(“Because standing and ripeness pertain to federal courts’ subject matter jurisdiction, they are
properly raised in a Rule 12(b)(1) motion to dismiss.”).
II. Federal Rule of Civil Procedure 12(b)(6)
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency
of the claims. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). When evaluating the

sufficiency of a complaint’s factual allegations, the court must accept all material facts alleged in
the complaint as true and construe them in the light most favorable to the non-moving party.
Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012). A motion to dismiss under
Rule 12(b)(6) will be granted if a plaintiff alleges the “grounds” of his “entitlement to relief”
with nothing “more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Factual allegations
must be enough to raise a right to relief above the speculative level on the assumption that all the
allegations in the complaint are true (even if doubtful in fact)[.]” Id. (citations and footnote
omitted).
To survive a motion to dismiss, a complaint “must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (internal quotation marks omitted). A plaintiff must “plead[] factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. In other words, a complaint must state a plausible claim for relief and contain “well-

pleaded facts” that “permit the court to infer more than the mere possibility of misconduct[.]” Id.
at 679.
DISCUSSION
On their first claim for declaratory relief, Plaintiffs assert six reasons why the Court
should find O.A.R. 839-020-0050 invalid: (1) the rule is preempted by the National Labor
Relations Act; (2) the rule is preempted by other federal regulations, including rules governing
Medicare and Medicaid funding; (3) BOLI failed to follow proper rulemaking requirements
under state law; (4) the rule exceeds the scope of BOLI’s state statutory authority; (5) the rule
conflicts with state rules governing hospitals and nurses; and (6) the rule as drafted and as
applied, fails to consider critical healthcare needs during a public health emergency.3 On their

second claim under 42 U.S.C. § 1983, Plaintiffs assert that O.A.R. 839-020-0050 violates the
Eighth Amendment by imposing excessive fines and violates their employees’ equal protection
rights under the Fourteenth Amendment. Lastly, Plaintiffs claim that Defendant Shepard violated
the First Amendment rights of some of their employees when he provided them false information
that prevented them from exercising their right to petition the government.

3 Plaintiffs allege that O.A.R. 839-020-0050 is invalid on its face. Whether BOLI interpreted the
rule correctly and whether the mealtime restrictions, as stated in O.A.R. 839-020-0050(2)(d),
apply to employee shifts longer than eight hours are not subjects of this litigation.
Defendants moves to dismiss all claims under Rule 12(b)(1) because of state sovereign
immunity, Younger abstention, and lack of standing and ripeness. Defendants also move to
dismiss for failure to state a claim under Rule 12(b)(6).
I. Sovereign Immunity
The Eleventh Amendment to the United States Constitution provides: “The Judicial

power of the United States shall not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States by Citizens of another State[.]” U.S.
Const. amend. XI. The Supreme Court has interpreted the Eleventh Amendment to also bar
federal suits brought against a state by its own citizens. Hans v. Louisiana, 134 U.S. 1, 10
(1890); see Employees of Dep’t of Pub. Health & Welfare v. Dep’t of Pub. Health & Welfare,
411 U.S. 279, 280 (1973) (“[A]n unconsenting State is immune from suits brought in federal
courts by her own citizens as well as citizens of another state.”). Thus, the Eleventh Amendment
stands “for the constitutional principle that state sovereign immunity limit[s] the federal courts’
jurisdiction under Article III.” Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 64 (1996). Under

that principle, “[s]tates may not be sued in federal court unless they consent to it in unequivocal
terms or unless Congress, pursuant to a valid exercise of power, unequivocally expresses its
intent to abrogate the immunity.” Green v. Mansour, 474 U.S. 64, 68 (1985).
A. Claims Against BOLI
Under state sovereign immunity, state agencies cannot be sued in federal court because
such suits are “in fact against the state.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.
89, 100 (1984). In other words, “a suit in which the State or one of its agencies is named as the
defendant is proscribed by the Eleventh Amendment.” Id. (emphasis added). The Oregon Bureau
of Labor and Industries or “BOLI” is “an agency of the state of Oregon.” FAC ¶ 19. Thus, unless
Oregon has consented to be sued in federal court, BOLI is not a proper defendant in this case,
and all claims against BOLI must be dismissed.
Plaintiffs argue that by enacting the Oregon Tort Claims Act (“OTCA”), the state has
waived sovereign immunity. But even if the state has waived immunity to be sued in its own
courts, the Eleventh Amendment remains a constitutional limit on federal judicial power. “[A]

State’s waiver of sovereign immunity in its own courts is not a waiver of the Eleventh
Amendment immunity in federal courts.” Pennhurst, 465 U.S. at 99 n.9. To waive constitutional
protection under the Eleventh Amendment, a state’s consent must be unequivocally expressed.
Edelman v. Jordan, 415 U.S. 651, 673 (1974). The OTCA provides a limited waiver of Oregon’s
sovereign immunity for the torts of its officers, employees, and agents acting within the scope of
their employment or duties. Webber v. First Student, Inc., 928 F. Supp. 2d 1244, 1269 (D. Or.
2013) (citing O.R.S. 30.265(1)). But by enacting the OTCA, Oregon did not waive its Eleventh
Amendment immunity to suit in federal court. Id. Accordingly, all claims in this Court brought
against BOLI are dismissed.

B. Claims Against Individual State Defendants
The Eleventh Amendment generally bars suits in federal court brought under state law
against state officials in their official capacities. See Will v. Mich. Dep’t of State Police, 491 U.S.
58, 71 (1989) (“[A] suit against a state official in his or her official capacity . . . is no different
from a suit against the State itself.”). But Federal courts have long recognized an exception to
Eleventh Amendment sovereign immunity when federal claims are brought against state officials
in their official capacities seeking prospective relief. Ex parte Young, 209 U.S. 123 (1908). The
Eleventh Amendment does not bar federal courts from granting prospective relief to prevent state
officials from violating or continuing to violate federal law. Green, 474 U.S. at 68. Similarly,
state officials sued in their official capacities for prospective relief, rather than compensatory
damages, are considered “persons” under § 1983 because “official-capacity actions for
prospective relief are not treated as actions against the State.” Will, 491 U.S. at 71 n.10 (citing
Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985)). Accordingly, Plaintiffs’ § 1983 claims and
their claims that the BOLI rule is invalid under federal law are not barred by the Eleventh

Amendment.
However, the Ex parte Young exception does not apply to state-law claims brought in
federal court against state officials. Pennhurst, 465 U.S. at 106. Thus, Eleventh Amendment
sovereign immunity applies to such claims. In other words, “the eleventh amendment bars suits
in federal court, for both prospective and retrospective relief, brought against state officials
acting in their official capacities alleging a violation of state law.” Pena v. Gardner, 976 F.2d
469, 473 (9th Cir. 1992) (citing id.) (emphasis added).
Counts three through six of Plaintiffs’ first claim allege that the BOLI rule is invalid
under state law. In the third and fourth counts, Plaintiffs allege that BOLI failed to follow state

rulemaking procedures and that the rule BOLI enacted exceeds its statutory authority under
O.R.S. 653.261. The fifth and sixth counts allege that the BOLI rule does not comply with state
hospital rules and fails to consider the state-declared public health emergency. Under Pennhurst,
Plaintiffs cannot bring claims in federal court seeking to enjoin Defendants from enforcing the
BOLI rule on the basis that it violates state law.
Ex parte Young only allows prospective relief against state officials to vindicate rights
under federal law. Spoklie v. Montana, 411 F.3d 1051, 1060 (9th Cir. 2005) (citing Pennhurst,
465 U.S. at 104). But state officials sued in their official capacities maintain Eleventh
Amendment immunity from claims for prospective relief that would instruct them “on how to
conform their conduct to state law.” Johnson v. Brown, 567 F. Supp. 3d 1230, 1258 (D. Or.
2021). Accordingly, Plaintiffs’ claims for declaratory and prospective relief against Defendants
Hoyle and Shepard in their official capacities that are based on state law are barred by sovereign
immunity. Counts three through six of Plaintiffs’ first claim are dismissed.
II. Younger Abstention

Absent exceptional circumstances, federal courts must abide by “the fundamental policy
against federal interference with state criminal proceedings. Younger, 401 U.S. at 46. “When
there is a parallel, pending state criminal proceeding, federal courts must refrain from enjoining
the state prosecution.” Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 72 (2013). Along with state
criminal proceedings, the Younger abstention doctrine extends to state civil enforcement
proceedings that are “akin to criminal prosecutions.” Id. (citing Huffman v. Pursue, Ltd., 420
U.S. 592, 604 (1975)). Younger abstention applies to civil proceedings when vital state interests
are involved, such as proceedings for the vindication of important state policies. Middlesex Cnty.
Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982).

For Younger abstention to apply to parallel state civil proceedings, the proceedings must
(1) be ongoing, (2) be quasi-criminal enforcement actions, (3) implicate an important state
interest, and (4) allow litigants to raise federal challenges. ReadyLink Healthcare, Inc. v. State
Comp. Ins. Fund, 754 F.3d 754, 759 (9th Cir. 2014). If all these elements are met, and no
exceptions to Younger abstention are present, then the federal court should abstain if the
plaintiff’s requested relief would have the effect of enjoining the state proceedings. Id.
The Court first notes that the BOLI administrative enforcement proceedings against
Plaintiff hospitals are ongoing. BOLI sent each Plaintiff a Notice of Intent to Assess Penalties on
December 21, 2021, before this case was filed in April 2022. Hearings on the enforcement
actions are scheduled to be held February, March, and April 2023. Plaintiffs argue that there is
no ongoing state proceeding from which the Court should abstain because the state
administrative law judge did not issue notices of hearings until after Plaintiffs filed this federal
suit. The Court disagrees and finds that the state administrative proceedings commenced after
BOLI issued the NOIs and Plaintiffs had the opportunity to answer in January 2022, months

before they filed this federal action.
Regardless, the appropriate inquiry for Younger abstention is not whether initiation of
state court proceedings preceded commencement of the federal case. Rather, state proceedings
are ongoing if they began “before any proceeding of substance on the merits have taken place in
federal court.” Hicks v. Miranda, 422 U.S. 332, 349 (1975) (emphasis added). Here, as the Court
is entertaining a motion to dismiss at the pleading stage, the federal proceedings have not
“moved beyond an embryonic stage.” Hoye v. City of Oakland, 653 F.3d 835, 844 (9th Cir.
2011) (citation omitted). Because the state BOLI enforcement proceedings are ongoing, the first
element for Younger abstention is met.

Second, the BOLI proceedings against Plaintiffs harbor all of the characteristics of quasi-
criminal proceedings that would counsel the Court to abstain under Younger. State civil
enforcement actions are “quasi-criminal” if the actions “are initiated to sanction the federal
plaintiff, i.e., the party challenging the state action, for some wrongful act.” Sprint Commc’ns,
571 U.S. at 79. Such quasi-criminal proceedings are typically brought by state actors to enforce
state law, involve investigations, and result in the filing of formal charges. Id.
BOLI, a state agency, initiated the enforcement action after it investigated Plaintiffs’
alleged violations of the meal and rest break rule under O.A.R. 839-020-0050. BOLI seeks
penalties of more than $8,000,000 from the four entities. Contested case hearings have been
scheduled before an administrative law judge for the state enforcement actions against each
Plaintiff. Thus, these state civil proceedings are “akin to criminal prosecutions” in all important
respects. Huffman, 420 U.S. at 604; see Middlesex, 457 U.S. at 432 (holding Younger abstention
appropriate where “noncriminal proceedings bear a close resemblance to proceedings criminal in
nature”).

Third, the BOLI civil enforcement proceedings implicate important state interests. See
Schwartzmiller v. Roberts, Civ. No. 93-1276-FR, 1994 WL 48967, at *2 (D. Or. Feb. 11, 1994)
(“The assessment of civil penalties against non-complying employers is an integral part of the
enforcement scheme of the State of Oregon.”). “Where a state is in an enforcement posture in
state proceedings . . . the state’s vital interest in carrying out its executive functions is
presumptively at stake.” Potrero Hills Landfill, Inc. v. Cnty. of Solana, 657 F.3d 876, 883-84
(9th Cir. 2011). BOLI promulgated its meal and rest period rule under state statutory authority to
promote the health of employees. Enforcement of the rule through formal enforcement
proceedings serves an important state interest, which warrants abstention under Younger.

Fourth, Plaintiffs have a full and fair opportunity to litigate their federal claims in the
state court proceedings. Plaintiffs’ Complaint asserts that the BOLI rule is preempted by the
National Labor Relations Act and federal regulations applying the Medicare and Medicaid
statutes. Plaintiffs also claim that BOLI’s enforcement of the rule against them violates the
Eighth Amendment Excessive Fines Clause and the Fourteenth Amendment Equal Protection
Clause. Plaintiffs do not show that they are unable raise these claims in the state enforcement
proceedings. See Herrera v. City of Palmdale, 918 F.3d 1037, 1046 (9th Cir. 2019) (holding that
the burden of showing that state procedures bars presentation of the federal claims rests with the
federal plaintiff). Plaintiffs, in fact, have already raised their Eighth Amendment claim and their
preemption claims in their answers to the NOIs imposed by BOLI. See Jeffries Decl. Ex. 1-4.
When federal claims may be raised in state-court judicial review of the administrative
proceedings, the opportunity to litigate in state court is sufficient to justify Younger abstention.
Ohio Civil Rights Comm’n v. Dayton Christian Schools, Inc., 477 U.S. 619, 629 (1986). After

BOLI has held contested case hearings on this matter, Plaintiffs may seek judicial review of the
agency’s determination with the Oregon Court of Appeals. See O.R.S. 183.480(1) (“[A]ny
person adversely affected or aggrieved by an order or any party to an agency proceeding is
entitled to judicial review of the final order[.]”); O.R.S. 183.482 (“Jurisdiction for judicial review
of contested cases is conferred upon the Court of Appeals. Proceedings for judicial review shall
be instituted by filing a petition in the Court of Appeals.”). Upon petition to the Oregon Court of
Appeals, Plaintiffs may challenge the validity of the rule, including whether it “[v]iolates
constitutional provisions,” “[e]xceeds statutory authority of the agency,” or “[w]as adopted
without compliance with applicable rulemaking procedures.” O.R.S. 183.400(4)(a)-(c). Plaintiffs

have already filed a separate but related petition for judicial review of O.A.R. 839-020-0050 with
the Oregon Court of Appeals. FAC ¶ 1, n.1.
Thus, Plaintiffs have ample opportunity to raise challenges to the rule and its enforcement
against them in state administrative and judicial proceedings. Plaintiffs may raise their arguments
under both state law and federal law in those proceedings. See Beaver Creek Co-op. Tel. Co. v.
Public Util. Comm’n, 182 Or. App. 559, 574, 50 P.3d 1231, 1239 (2002) (finding authority under
O.R.S. 183.400 to review a challenge to a state administrative rule on the grounds that the rule
was preempted by federal law). Under such conditions and because the state proceedings are
ongoing, the Court finds Younger abstention appropriate.
Finally, no exceptions to Younger abstention apply here. Even where the Younger
elements are met, a court may intervene in an ongoing state proceeding if the plaintiff can show
“bad faith, harassment, or some other extraordinary circumstance that would make abstention
inappropriate.” Middlesex, 457 U.S. at 435. The Supreme Court has held that a federal district
court should exercise jurisdiction when a state’s repeated prosecutions constitute “bad faith and

were taken as a means of harassing the federal-court plaintiffs.” Huffman, 420 U.S. at 602 (citing
Dombroski v. Pfister, 380 U.S. 479 (1965)). But, as here, when the state is engaged in a single,
ongoing prosecution of the federal plaintiffs, “the cost, anxiety, and inconvenience of having to
defendant” against that prosecution does not “justify federal interference.” Id. (citing Younger,
401 U.S. at 46).
Plaintiffs, in a conclusory manner, allege that BOLI has acted in bad faith by bringing
civil enforcement proceedings against them under O.A.R. 839-020-0050. For example, Plaintiffs
contend that BOLI acted in bad faith “in exceeding its statutory authority,” “arbitrarily imposing
the maximum regulatory penalty,” “[f]ailing to follow rulemaking procedures,” and “[i]mposing

meal and break rules that conflict with Oregon State Board of Nursing Regulations.” FAC ¶ 81.
These allegations simply restate Plaintiffs’ claims without alleging additional facts that show bad
faith. Plaintiffs also claim BOLI “engag[ed] in prosecutorial misconduct” and “impos[ed] fines
and threats of future fines for political reasons.” FAC ¶ 81. But again, Plaintiffs allege no facts to
support these conclusory statements. Plaintiffs’ primary claim is that the BOLI rule itself is
invalid on its face. And “facial invalidity of a statute is not itself an exceptional circumstance
justifying federal interference with state [] proceedings.” Huffman, 420 U.S. at 602.
Plaintiffs present no exceptional circumstances that overcome the Courts duty to abstain
when the Younger elements have been met. Accordingly, the Court abstains under Younger. All
of Plaintiffs’ claims based on BOLI’s action of enforcing O.A.R. 839-020-0050—namely,
Plaintiffs’ claim that the BOLI is invalid and their § 1983 claims under the Eighth and
Fourteenth Amendments—are dismissed.
III. First Amendment Claim
Plaintiffs’ sole remaining claim alleges that Defendant Shepard violated the First

Amendment rights of certain nurses who expressed concerns and sought information about
changing their mealtime rules. Plaintiffs bring this claim under 42 U.S.C. § 1983 seeking
declaratory relief against BOLI and against Defendants Shepard and Hoyle in their official
capacities. As noted in I., supra, BOLI is protected against this claim by Eleventh Amendment
sovereign immunity. The individual Defendants argue that Plaintiffs lack standing and do not
allege facts that support a plausible First Amendment claim.
A. Standing
Determining whether a plaintiff has standing involves both constitutional and prudential
considerations. Viceroy Gold Corp. v. Aubry, 75 F.3d 482, 488 (9th Cir. 1996). Federal courts

have limited jurisdiction, and as a preliminary matter, a plaintiff must satisfy the Article III “case
or controversy” requirement to maintain a claim in this forum. City of Los Angeles v. Lyons, 461
U.S. 95, 101 (1983); Cetacean Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir. 2004). Along with
Article III requirements, federal courts have imposed prudential limitations that may defeat a
party’s standing. Hong Kong Supermarket v. Kizer, 830 F.2d 1078, 1081 (9th Cir. 1987). The
Court finds that Plaintiffs lack both Article III and prudential standing to assert their First
Amendment claim.
i. Article III Standing
“Standing is a core component of the Article III case or controversy requirement.”
Barnum Timber Co. v. EPA, 633 F.3d 894, 897 (9th Cir. 2011) (citing Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992)). The “irreducible constitutional minimum of standing”
requires that the plaintiff has (1) suffered an injury in fact; (2) that is fairly traceable to the

challenged conduct of the defendant; and (3) that is likely to be redressed by a favorable judicial
decision. Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016); Lujan, 504 U.S. at 560. To establish
an injury in fact, a plaintiff must show that “he or she suffered an invasion of a legally protected
interest that is concrete and particularized and actual or imminent, not conjectural or
hypothetical.” Spokeo, 578 U.S. at 339 (internal quotation and citation omitted). At the motion to
dismiss stage, a plaintiff need only “show that the facts alleged, if proved, would confer
standing.” Warren v. Fox Fam. Worldwide, Inc., 328 F.3d 1136, 1140 (9th Cir. 2003).
Plaintiffs’ First Amendment claim alleges: “Defendant Deputy Commissioner Shepard
interfered with Plaintiffs’ employees in their exercise of their First Amendment right by, among

other things, providing erroneous and incomplete information and leaving Plaintiffs’ employees
with the clear impression that they must join a union in order to address their concerns.” FAC
¶ 185. As Plaintiffs claim that Defendant Shepard’s actions prevented their employees from
petitioning the government for redress of their grievances, they have adequately alleged an
injury, which is traceable to Defendant Shepard.4 But the alleged injury is not redressable by the
relief Plaintiffs seek.

4 Because Plaintiffs assert no action on the part of Defendant Hoyle that violated their First
Amendment rights, they have not stated an injury-in-fact that is fairly traceable to her. Thus,
Plaintiffs lack Article III standing to bring a First Amendment claim against Defendant Hoyle.
A plaintiff “must demonstrate standing separately for each form of relief sought.”
Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 185 (2000).
Because Plaintiffs seek only prospective relief, they “must demonstrate a real or immediate
threat” of ongoing or future irreparable injury. Clark v. City of Lakewood, 259 F.3d 996, 1007

(9th Cir. 2001) (quoting Cole v. Oroville Union High Sch. 228 F.3d 1092, 1100 (9th Cir. 2000)).
A chilling of First Amendment rights can constitute a cognizable injury, so long as the chilling
effect is not “based on a fear of future injury that itself is too speculative to confer standing.”
Index Newspapers LLC v. United States Marshals Serv., 977 F.3d 817, 826 (9th Cir. 2020)
(internal quotation and citation omitted). But “[p]ast exposure to illegal conduct does not in itself
show a present case or controversy” for prospective relief “if unaccompanied by any continuing,
adverse effect.” Lyons, 461 U.S. at 102. And plaintiffs who claim ongoing or threatened future
injury must present “concrete evidence to substantiate their fears.” Clapper v. Amnesty Int’l USA,
568 U.S. 398, 420 (2013).

The alleged violation of Plaintiffs’ employees’ First Amendment rights occurred when
Defendant Shepard gave those employees false information during a February 2019 meeting.
According to Plaintiffs, that false information prevented their employees from exercising their
First Amendment right to petition the government. But Plaintiffs do not plausibly allege that
their employees’ speech remains chilled. Even if Defendant Shepard gave them false
information, Plaintiffs have shown that they know the information to be incorrect and that their
employees are not prohibited from exercising their First Amendment rights. Nor do Plaintiffs
allege that Defendant Shepard has had any further contact with those employees or that any
future meetings are planned. Thus, Plaintiffs assert no facts that show an ongoing or impending
threat of future injury.
Plaintiffs’ requested relief—a declaration that Defendants violated their employees’
constitutional rights—would not redress their injuries and cannot confer standing. See Bayer v.
Neiman Marcus Grp., 861 F.3d 853, 868 (9th Cir. 2017) (“[A] declaratory judgment merely

adjudicating past violations of federal law—as opposed to continuing or future violations of
federal law—is not an appropriate exercise of federal jurisdiction.”). Standing to seek a
declaratory judgment requires that the judgment compel the defendant to take some action that
would redress the plaintiff’s injuries. Mayfield v. United States, 599 F.3d 964, 972 (9th Cir.
2010); see Bayer, 861 F.3d at 868 (citation omitted) (“[W]hat makes [a court’s holding] a proper
judicial resolution of a case or controversy rather than an advisory opinion—is in the settling of
some dispute which affects the behavior of the defendant towards the plaintiff.”).
Plaintiffs do not show how their employees’ constitutional rights would be vindicated by
a declaration that Defendants violated their First Amendment rights in the past. Nor do Plaintiffs

allege ongoing or future threats of First Amendment violations by Defendants. Accordingly,
Plaintiffs lack constitutional standing to seek declaratory relief on their First Amendment claim.
ii. Prudential Standing
Plaintiffs bring their First Amendment claim to vindicate the rights of their employees.
Prudential limitations to standing generally “require that parties assert their own rights rather
than rely on the rights or interests of third parties.” Hong Kong Supermarket, 830 F.2d at 1081.
Notwithstanding certain exceptions, courts generally do not recognize a party’s standing to bring
suit on behalf of another. Id. Third-party standing is only available when a plaintiff shows: (1) a
close relationship and alignment of interests with the non-party and (2) a hinderance to the non-
party’s ability to assert their own rights. Singleton v. Wulff, 428 U.S. 106, 114-15 (1976). Federal
courts are typically reluctant to grant third-party standing. Hong Kong Supermarket, 830 F.2d at
1081.
Plaintiffs plausibly allege that in regard to the BOLI meal and rest break rule, their
interests closely align with their employees’ First Amendment right to seek relief from rule. But

Plaintiffs do not describe any hindrance to their employees’ ability to seek redress for violations
of their own constitutional rights. Thus, Plaintiffs lack both constitutional and prudential
standing to bring a § 1983 claim seeking a declaratory judgment that Defendants violated their
employees’ First Amendment rights.
In summary, Plaintiffs’ claims cannot proceed in this Court because (1) Eleventh
Amendment sovereign immunity bars claims against Defendant BOLI, and under Pennhurst,
also bars claims based on state law against Defendant Hoyle and Defendant Shepard; (2) the
Court must abstain from adjudicating claims related to BOLI’s ongoing civil enforcement
proceeding under Younger; and (3) Plaintiffs lack standing to bring a First Amendment claim

against Defendant Shepard on behalf of their employees. Because the Court dismisses all of
Plaintiffs’ claims for lack of subject matter jurisdiction under Rule 12(b)(1), it declines to
address the sufficiency of the claims under Rule 12(b)(6).
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CONCLUSION
Defendants’ Motion to Dismiss [14] is GRANTED and this action is dismissed without
prejudice.
IT IS SO ORDERED.

DATED: January 3, 2023

MARCO A. HERNAND
United States District Judge

21 —OPINION & ORDER

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10395486. Public record. Not legal advice.