Behar v. Pa. Dep't of Transp.

• Decision Date: 31 March 2011
• Docket Number: Civil Action No. 1:09–CV–2453.
• Citation: 791 F.Supp.2d 383
• Parties: David BEHAR, M.D., Plaintiffv.PENNSYLVANIA DEPARTMENT OF TRANSPORTATION and Allen Biehler, Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

791 F.Supp.2d 383

David BEHAR, M.D., Plaintiff

v.PENNSYLVANIA DEPARTMENT OF TRANSPORTATION and Allen Biehler, Defendants.

Civil Action No. 1:09–CV–2453.

United States District Court, M.D. Pennsylvania.

March 31, 2011.

Alan S. Gold, Gold & Robins, P.C., Jenkintown, PA, Brian P. Moquin, Law Offices of Brian P. Moquin, San Jose, CA, for Plaintiff.Sean A. Kirkpatrick, Office of Attorney General of the Commonwealth of PA, Robert B. Hoffman, Eckert Seamans Cherin & Mellott, LLC, Harrisburg, PA, for Defendants.

MEMORANDUM

CHRISTOPHER C. CONNER, District Judge.

Presently before the court is the report (Doc. 37) of the Honorable William T. Prince, United States Magistrate Judge, recommending that the motion for judgment on the pleadings (Doc. 18) filed by defendants, the Pennsylvania Department of Transportation (“PennDOT”) and Allen Biehler, Secretary of Transportation for the Commonwealth of Pennsylvania, be granted in part, and denied in part. Plaintiff David Behar, M.D. (“Dr. Behar”) has filed objections (Docs. 43–44) to the magistrate judge's report and recommendation (“R & R”). The Pennsylvania Medical Society, the American Medical Association, and the Pennsylvania Psychiatric Society filed a brief of amici curiae (Doc. 42) in support of Dr. Behar's objections. For the reasons set forth below, the court will adopt the R & R in its entirety.

I. Background

Dr. Behar, a licensed psychologist and health care provider in the Commonwealth of Pennsylvania, filed the instant action challenging a PennDOT regulation that requires health care professionals to report to the Department of Transportation every patient over the age of fifteen who is affected by any of a number of listed medical conditions which could impact their ability to safely operate a motor vehicle. See 75 Pa. Cons.Stat. §§ 1517, 1518, 6103; 67 Pa.Code § 83.1. The regulation provides, in relevant part:

Disqualification on provider's recommendation. A person who has any of the following conditions will not be qualified to drive if, in the opinion of the provider, the condition is likely to impair the ability to control and safely operate a motor vehicle:

...

(7) Use of any drug or substance, including alcohol, known to impair skill or functions, regardless whether the drug or substance is medically prescribed.

(8) Other conditions which, in the opinion of a provider, is [sic] likely to impair the ability to control and safely operate a motor vehicle.

67 Pa.Code § 83.5(b).

Physicians and other persons authorized to diagnose and treat disorders and disabilities defined by the Medical Advisory Board shall report to the Department, in writing, the full name, date of birth and address of every person 16 years of age and older diagnosed as having any specified disorder or disability within 10 days, under 75 Pa.C.S. § 1518 (relating to reports on mental or physical disabilities or disorders).

67 Pa.Code § 83.6. A provider who fails to report such individuals is subject to a summary offense and fine of $25.00. 75 Pa. Cons.Stat. § 6502. Dr. Behar contends that this regulation violates numerous provisions of the federal constitution, the Pennsylvania state constitution and federal law including: the Supremacy Clause, the Due Process Clauses under the Fifth and Fourteenth Amendments, the First and Fourteenth Amendment right to association, privacy rights under the Ninth and Fourteenth Amendment, Article I, § 1 of the Pennsylvania Constitution, the Americans with Disabilities Act, 42 U.S.C. § 12135, et seq., and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a) et seq. (Doc. 1).

Defendants filed a motion for judgment on the pleadings (Doc. 18) on February 16, 2010. By order dated August 3, 2010 (Doc. 35) this court referred the motion to Magistrate Judge Prince to prepare a Report and Recommendation. On October 6, 2010, 2010 WL 6428640, Magistrate Judge Prince filed his report recommending that this court grant judgment in favor of defendants on all counts except for the Supremacy Clause challenge in Count I of the complaint to the extent the PennDOT regulation seeks disclosure of the medical record of any individual participating in a federally assisted alcohol or drug treatment program pursuant to the Drug Abuse Prevention, Treatment and Rehabilitation Act, 42 C.F.R. §§ 2.1 et seq. (Doc. 37, at 13–16, 44). Dr. Behar filed numerous objections to the R & R on November 8, 2010. (Doc. 43). The Pennsylvania Medical Society, the American Medical Association, and the Pennsylvania Psychiatric Society filed a brief of amici curiae (Doc. 42) in support of Dr. Behar's objections with respect to the privacy claim on November 8, 2010.¹ Defendants filed their brief in opposition (Doc. 48) to the objections on November 26, 2010. The matter is now ripe for disposition.

II. Standard of ReviewA. Standard of Review for a Motion for Judgment on the Pleadings

A motion for judgment on the pleadings is the procedural hybrid of a motion to dismiss and a motion for summary judgment. Rule 12(c) of the Federal Rules of Civil Procedure provides: “After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings.” Fed.R.Civ.P. 12(c). To succeed on a motion under Rule 12(c), the movant must clearly establish that no material issue of fact remains to be resolved and that “he is entitled to judgment as a matter of law.” Sikirica v. Nationwide Ins. Co., 416 F.3d 214, 220 (3d Cir.2005); see also 5C Charles A. Wright et al., Federal Practice and Procedure § 1368 (3d ed.). When deciding a motion for judgment on the pleadings, the court is directed to view “the facts presented in the pleadings and the inferences to be drawn therefrom in the light most favorable to the nonmoving party.” Sikirica, 416 F.3d at 220.

B. Standard of Review for a Magistrate Judge's Recommendation

Where objections to a magistrate judge's report and recommendation are filed, the court must perform a de novo review of the contested portions of the report. Supinski v. United Parcel Serv., Civ. A. No. 06–0793, 2009 WL 113796, at *3 (M.D.Pa. Jan. 16, 2009) (citing Sample v. Diecks, 885 F.2d 1099, 1106 n. 3 (3d Cir.1989); 28 U.S.C. § 636(b)(1)(c)). “In this regard, Local Rule of Court 72.3 requires ‘written objections which ... specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for those objections.’ ” Id. (citing Shields v. Astrue, Civ. A. No. 07–417, 2008 WL 4186951, at *6 (M.D.Pa. Sept. 8, 2008)).

III. Discussion

Dr. Behar claims, in essence, that Judge Prince erred in each and every one of his conclusions. The court respectfully disagrees with each and every objection.

A. Dr. Behar's Standing

Dr. Behar argues that Magistrate Judge Prince erred in concluding that he lacks individual standing to challenge the PennDOT regulation. (Doc. 43, at 2–3; Doc. 44, at 12–14). Judge Prince concluded that Dr. Behar satisfies third-party standing requirements to challenge the regulation on behalf of his patients. (Doc. 37, at 7–8). However, he found that Dr. Behar lacks individual standing to bring a pre-enforcement review of the regulation because Dr. Behar does not claim that he has been threatened with prosecution or that prosecution is even a remote possibility. ( Id. at 8 (citing Younger v. Harris, 401 U.S. 37, 42, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971))).

To establish the constitutional minimum requirements of standing a party must show: (1) an injury in fact that is concrete and particularized and actual or imminent, not hypothetical or conjectural; (2) a causal connection between the injury and the challenged action; and (3) a likelihood that a favorable decision of the court will redress the injury. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Judge Prince correctly concluded that Dr. Behar lacks individual standing, as he has shown no injury in fact. Dr. Behar, practicing under the challenged regulation for thirty years, does not claim that he has been threatened with prosecution. In fact, the regulation has never been enforced against health care providers who fail to disclose the information required under the regulation.

It is well-settled that part and parcel of pre-enforcement challenge to a criminal statute is a credible threat of prosecution. See Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979). “ ‘[P]ersons having no fears of state prosecution except those that are imaginary or speculative, are not to be accepted as appropriate plaintiffs.’ ” Id. (quoting Younger, 401 U.S. at 42, 91 S.Ct. 746). Dr. Behar directs the court's attention to a PennDOT physician reporting fact sheet that states “providers who do not comply with their legal requirement to report may be convicted of a summary criminal offense.” ( See Doc. 26, at 25 n. 1 (citing Pa. Dep't of Transp., Physician Reporting Fact Sheet, http:// www. dmv. state. pa. us/ pdotforms/ fact_ sheets/ fs- pub 7212. pdf)). Standing alone, the fact sheet fails to create a credible threat of prosecution, particularly in the absence of any history of prosecution. Hence, the court adopts Judge Prince's conclusion that Dr. Behar lacks individual standing.

B. The Appropriate Standard for a Facial Challenge

Dr. Behar's asserts that Judge Prince failed to apply the correct standard in analyzing his facial Supremacy Clause challenge to PennDOT's regulation. (Doc. 43, at 3–5; Doc. 44, at 14–16). Judge Prince utilized the standard in United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). (Doc. 37, at 12). Pursuant to Salerno, a statute is facially unconstitutional only if “no set of circumstances exists under which the [statute] would be valid.” Salerno, 481 U.S. at 745, 107 S.Ct. 2095. Dr. Behar claims that the Supreme Court has since adopted a different standard, finding that a facial challenge...