Brokamp v. James

• Decision Date: 22 November 2021
• Docket Number: 1:21-cv-00389-DNH-ATB
• Citation: 573 F.Supp.3d 696
• Parties: Elizabeth BROKAMP, Plaintiff, v. Letitia JAMES; Betty Rosa; New York State Education Department Board of Regents; New York State Board of Mental Health Practitioners; and Thomas Biglin, Helena Boersma, Sargam Jain, Rene Jones, Susan L. Boxer Kappel, Sara Lin Friedman McMullian, Rodney Means, Timothy Mooney, Angela Musolino, Michele Landers Meyer, Natalie Z. Riccio, Holly Vollink-Lent, Jill R. Weldum, Susan Wheeler Weeks, Defendants.
• Court: U.S. District Court — Northern District of New York

573 F.Supp.3d 696

Elizabeth BROKAMP, Plaintiff,

v.Letitia JAMES; Betty Rosa; New York State Education Department Board of Regents; New York State Board of Mental Health Practitioners; and Thomas Biglin, Helena Boersma, Sargam Jain, Rene Jones, Susan L. Boxer Kappel, Sara Lin Friedman McMullian, Rodney Means, Timothy Mooney, Angela Musolino, Michele Landers Meyer, Natalie Z. Riccio, Holly Vollink-Lent, Jill R. Weldum, Susan Wheeler Weeks, Defendants.

No. 1:21-cv-00389-DNH-ATB

United States District Court, N.D. New York.

Signed November 22, 2021

OF COUNSEL: JEFFREY REDFERN, ESQ., ROBERT JOHNSON, ESQ., ROBERT McNAMARA, ESQ., ALAN J. PIERCE, ESQ., INSTITUTE FOR JUSTICE, Attorneys for Plaintiff, 901 N. Glebe Road, Suite 900, Arlington, VA 22203.

HON. LETITIA JAMES, Attorney General for the State of New York, OF COUNSEL: MARK G. MITCHELL, ESQ., Ass't Attorney General, Attorneys for Defendants, The Capitol, Albany, New York 12224.

MEMORANDUM-DECISION and ORDER

DAVID N. HURD, United States District Judge

I. INTRODUCTION

Plaintiff Elizabeth Brokamp ("Brokamp" or "plaintiff") brings this action against defendants Letitia James, in her official capacity as Attorney General of the State of New York (the "Attorney General"), Betty Rosa, in her official capacity as the New York State Commissioner of Education (the "Education Commissioner"), the New York State Education Department Board of Regents (the "Board of Regents"), the New York State Board of Mental Health Practitioners (the "Board of Mental Health Practitioners"), and the following individuals sued in their official capacity as members of the Board of Mental Health Practitioners: Thomas Biglin, Helena Boersma, Sargam Jain, Rene Jones, Susan L. Boxer Kappel, Sara Lin Friedman McMullian, Rodney Means, Timothy Mooney, Angela Musolino, Michele Landers Meyer, Natalie Z. Riccio, Holly Vollinik-Lent, Jill R. Weldum, and Susan Wheeler Weeks (the "Mental Health Board defendants" and, together with the Attorney General, the Education Commissioner, the Board of Regents, and the Board of Mental Health Practitioners, "defendants").

Plaintiff, a Virginia-licensed professional counselor, seeks a declaratory judgment providing that N.Y. Educ. Law sections 8402 - 8405 violate the First and Fourteenth Amendments to the United States Constitution. Plaintiff also seeks a permanent injunction prohibiting defendants and their agents from applying New York's licensing requirements for mental health counselors to prevent plaintiff from providing teletherapy services to New York residents. Defendants have moved to dismiss the complaint in its entirety and against all defendants under Federal Rule of Civil Procedure ("Rule") 12(b)(1) and 12(b)(6). The motion having been fully briefed, the Court will now consider it on the basis of the parties’ submissions without oral argument.

II. BACKGROUND

A. Brokamp and her Counseling Services

Brokamp is a Virginia-licensed professional counselor with over twenty years’ experience. Dkt. 24 ("Am. Compl.") ¶ 1. Professional counselors like plaintiff "talk to their clients about their feelings, their relationships, and their lives." Id. ¶ 1. Her services consist entirely of conversations with her clients; plaintiff does not prescribe any medication or conduct medical procedures. Id. ¶¶ 28-29.

Brokamp provides counseling out of her home in Virginia, but she has moved all her counseling online due to the COVID-19 pandemic. Am. Compl. ¶ 8. While her move online was initially driven by the pandemic, plaintiff has found that this arrangement is beneficial for clients because it allows them to seek out help without making a trip to her office. Id. ¶ 25. Consequently, plaintiff intends to continue providing online teletherapy for the indefinite future, including after the pandemic is over. Id. ¶ 23.

During the pandemic, one of Brokamp's clients relocated to New York. Am Compl. ¶ 36. As explained below, New York temporarily suspended its requirement that out-of-state counselors obtain New York counseling licenses before providing teletherapy to New York residents, so plaintiff was able to continue counseling her client for a time. Id.

Another of Brokamp's former clients who lives in New York also contacted her seeking to resume therapy. Am. Compl. ¶ 39. Concerned that she may have to terminate therapy with this client when New York's licensing exemption expired, plaintiff felt ethically obligated to turn this individual down. Id.

B. New York's Licensing Requirement and Enforcement

N.Y. Educ. Law § 6512(1) makes it a felony to practice certain professions without a license issued by the New York State Education Department (the "Education Department"). One such profession this statute covers is "mental health counseling."¹

To obtain a mental health counseling license, one must satisfy several requirements, which include passing an exam, completing an internship and supervised experience, obtaining a master's degree or higher, and paying a fee. N.Y. Educ. Law § 8402(3). In addition, New York's licensing laws contain various exemptions, which allow certain professions to provide services falling within the definition of "mental health counseling" without obtaining a mental health counselor license. See N.Y. Educ. Law § 8410.²

Early in the COVID-19 pandemic, New York issued an executive order temporarily suspending its requirement that out-of-state counselors obtain New York licenses before providing teletherapy to New York residents, so Brokamp was able to continue counseling her New York clients. See Am. Compl. ¶ 36 (citing N.Y. Exec. Ord. 202.15). On March 9, 2020, the Board of Mental Health Practitioners confirmed to plaintiff that, after N.Y. Exec. Ord. 202.15 expired, she would no longer be able to provide teletherapy to New York residents. Id. ¶ 38. On June 25, 2021, a subsequent executive order, N.Y. Exec. Ord. 210, confirmed that N.Y. Exec. Ord. 202.15 expired.

III. LEGAL STANDARD

1. Subject Matter Jurisdiction

"A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States , 201 F.3d 110, 113 (2d Cir. 2000). "A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists." Id. "In resolving a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), a district court ... may refer to evidence outside the pleadings." Id. at 113. Subject matter jurisdiction is a threshold issue and, thus, when a party moves to dismiss under both Rules 12(b)(1) and 12(b)(6), the motion court must address the 12(b)(1) motion first." Hartwick v. Annucci , 2020 WL 6781562, at *4 (N.D.N.Y. Nov. 18, 2020).

2. Failure to State a Claim

"To survive a Rule 12(b)(6) motion to dismiss, the ‘[f]actual allegations must be enough to raise a right to relief above the speculative level.’ " Ginsburg v. City of Ithaca , 839 F. Supp. 2d 537, 540 (N.D.N.Y. 2012) (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "[T]he complaint must contain sufficient factual matter that it presents a claim to relief that is plausible on its face." Hartwick , 2020 WL 6781562, at *4 (citing Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ).

In assessing the plausibility of the plaintiff's complaint, "the complaint is to be construed liberally, and all reasonable inferences must be drawn in the plaintiff's favor." Ginsburg , 839 F. Supp. 2d at 540 (citing Chambers v. Time Warner, Inc. , 282 F.3d 147, 152 (2d Cir. 2002) ).

A plaintiff may support her complaint with "any written instrument attached to it as an exhibit, materials incorporated in it by reference, and documents that, although not incorporated by reference, are ‘integral’ to the complaint." L-7 Designs, Inc. v. Old Navy, LLC , 647 F.3d 419, 422 (2d Cir. 2011) (citing Sira v. Morton , 380 F.3d 57, 67 (2d Cir. 2004) ).

IV. DISCUSSION

In her Amended Complaint, Brokamp advances three causes of action: (i) an as-applied First Amendment challenge; (ii) a facial First Amendment challenge; and (iii) an as-applied First & Fourteenth Amendment vagueness challenge.³

In response, defendants raise the following objections: (1) plaintiff lacks standing; (2) plaintiff's claims must be dismissed for lack of subject matter jurisdiction because defendants have sovereign immunity; (3) the Attorney General is not a proper defendant in this action; and (4) plaintiff's claims must be dismissed for failure to state a claim upon which relief can be granted.

A. Standing ⁴

Defendants argue that Brokamp lacks standing over each of her claims. As to her as-applied claims, the Court agrees with defendants.

Standing limits the jurisdiction of federal courts to decide only actual "Cases" or "Controversies." Smith v. Hochul , 568 F.Supp.3d 190, 196–97 (N.D.N.Y. Oct. 26, 2021). To establish standing, a plaintiff must show: (1) an injury-in-fact; (2) a sufficient causal connection between the injury and the conduct complained of; and (3) a likelihood that the injury "will be redressed by a favorable decision." Knife Rts., Inc. v. Vance , 802 F.3d 377, 383 (2d Cir. 2015). If any of these three elements is missing, a federal court lacks jurisdiction to entertain the claim. Libertarian Party of Erie County v. Cuomo , 970 F.3d 106, 121 (2d Cir. 2020).

1. Plaintiff lacks standing to bring her as-applied First Amendment and Vagueness claims.

(i) Plaintiff has not submitted to the challenged licensure requirement.

"To establish standing to challenge an allegedly unconstitutional policy, a plaintiff must submit to the challenged policy." Jackson-Bey v. Hanslmaier , 115 F.3d 1091, 1096 (2d Cir. 1997). However, a plaintiff may be excused from the threshold standing requirement that she submit to the challenged policy if she "makes a substantial showing that application for the benefit ... would have been futile."...