Hoepfl v. Barlow

• Decision Date: 02 November 1995
• Docket Number: Civ. A. No. 95-903-A.
• Citation: 906 F. Supp. 317
• Parties: Michelle HOEPFL, Plaintiff v. Haven J. BARLOW, M.D. and Healthplus, Inc., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

906 F. Supp. 317

Michelle HOEPFL, Plaintiff v. Haven J. BARLOW, M.D. and Healthplus, Inc., Defendants.

Civ. A. No. 95-903-A.

United States District Court, E.D. Virginia, Alexandria, Virginia.

November 2, 1995.

Lynn Perry Parker, Robins, Kaplan, Miller & Ciresi, Washington, DC, for Plaintiff.

Tara M. McCarthy, Merrifield, VA, for Haven J. Barlow, M.D.

Mark C. Hansen, James E. Boasberg, Kellogg, Huber, Hansen, Todd & Evans, Washington, DC, Ronald L. Lord, Gardner, Carton & Douglas, Washington, DC, for HealthPlus, Inc.

MEMORANDUM OPINION

ELLIS, District Judge.

This case presents the question, novel in this circuit, of whether allegations of past discrimination alone establish standing to sue for injunctive relief under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12181 et seq. Plaintiff seeks ADA injunctive relief against defendant on the basis of allegations that defendant, a physician, refused to perform surgery on plaintiff because she is HIV positive. She has since had the surgery performed by another physician, but nonetheless still seeks an injunction against this defendant under the ADA ordering him not to discriminate against other disabled persons in the future. For the reasons that follow, plaintiff's allegations of past discrimination do not provide her with standing to sue for injunctive relief under the ADA.

I.¹

Plaintiff Michelle Hoepfl, now a resident of North Carolina, had breast implant surgery in 1989. She is HIV positive. Defendant Haven J. Barlow, M.D. is a licensed physician practicing surgery in Virginia.

In 1993, Ms. Hoepfl, then a Virginia resident, began to experience breast pain, joint stiffness, skin rashes, and chronic fatigue. An MRI revealed that her breast implants had ruptured. She immediately began a search for a doctor who was both covered by her insurance² and qualified to remove the implants. After being referred to him by Healthplus, Ms. Hoepfl met with Dr. Barlow in July of 1994 to discuss her condition and the possibility of Dr. Barlow treating it. At some point in the examination, Ms. Hoepfl disclosed her HIV-positive status to Dr. Barlow. He then replied that he would "not touch an HIV patient with a ten-foot pole." This comment shocked Ms. Hoepfl and caused her to become visibly upset. Yet, in a parting remark made as he accompanied Ms. Hoepfl back to the waiting room a few minutes later, Dr. Barlow offered to treat her if no one else would. Dr. Barlow's secretary then followed up with a telephone call to Ms. Hoepfl in which the secretary offered to set an appointment for Dr. Barlow to perform the surgery Ms. Hoepfl needed.

According to Ms. Hoepfl, Dr. Barlow's parting statement to her and the follow-up phone call were not enough to overcome the extremely negative impact of his earlier statement about AIDS patients. She therefore persevered in her search for a physician to remove her breast implants. In the meantime, her pain continued. In addition, she felt intense anxiety about the surgery becoming more risky as time passed and her T-cell blood count dropped. This anxiety led to insomnia and depression, both of which became so severe that she sought counselling. Meanwhile, her search for a physician finally succeeded, and the surgery was performed on October 31, 1994.

The complaint alleges that Dr. Barlow's "ten foot pole" statement to Ms. Hoepfl during the examination violated the ADA, 42 U.S.C. § 12101 et seq. (Count I) and the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. (Count II) and amounted to the negligent and intentional infliction of emotional distress under state law.³ At issue here is Ms. Hoepfl's ADA claim. As she conceded at oral argument, compensatory damages are unavailable under the plain language of the ADA. See 42 U.S.C. § 12188(a)(1), 42 U.S.C. § 2000a-3(a); see also Aikins v. St. Helena Hospital, 843 F.Supp. 1329, 1338 (N.D.Cal. 1994); Mayberry v. Von Valtier, 843 F.Supp. 1160, 1167 (E.D.Mich.1994). Hence, if she is to win any relief under the ADA, it must be in the form of an injunction. Ms. Hoepfl currently takes the position that her ADA claim is a request for injunctive relief ordering Dr. Barlow not to discriminate against disabled individuals in the future.

II.

Congress determined in 1990 that "discrimination against individuals with disabilities continues to be a serious and pervasive social problem," and that these persons "have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society." 42 U.S.C. § 12101(a)(2), (7). On the basis of these and similar findings, Congress enacted the ADA "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. § 12101(b)(1). The ADA thus specifically prohibits discrimination against disabled persons (i) in employment,⁴ (ii) in the provision of public services,⁵ and (iii) in the enjoyment of public accommodations.⁶ Ms. Hoepfl's complaint falls under the third category, which statutorily defines "public accommodations" to include doctors' offices. See 42 U.S.C. § 12181(7)(F) (including "professional office of a health care provider" as public accommodation). She alleges that Dr. Barlow's statements to her amounted to a denial of her right to benefit from the professional services offered at his office. If proved at trial, such a denial would constitute discrimination under the ADA.⁷ See 42 U.S.C. § 12182(a), (b)(1)(A)(i).

The public accommodations subchapter of the ADA does not itself set forth a remedial scheme. Rather, it provides that the remedies set forth in 42 U.S.C. § 2000a-3(a) are the remedies available for discrimination in public accommodations. See 42 U.S.C. § 12188(a). This statute is the remedial provision of the Civil Rights Act of 1964; it provides only "for preventive relief, including an application for a permanent or temporary injunction." See 42 U.S.C. § 2000a-3(a). The task at hand is to determine whether this definition fits the facts at bar.

To begin with, the discrimination Ms. Hoepfl allegedly suffered occurred entirely in the past. Moreover, because she now resides in a different state, it is highly unlikely that she will ever again be in a position where any discrimination by Dr. Barlow against disabled individuals will affect her personally. Thus, the precise issue presented here is whether a plaintiff alleging a past violation of § 12182 may sue for injunctive relief under the ADA without also showing a realistic possibility that any discriminatory conduct by the defendant in the future would cause the plaintiff harm.

III.

Because "federal injunctive relief is an extreme remedy," Simmons v. Poe, 47 F.3d 1370, 1382 (4th Cir.1995), courts have erected a number of barriers a plaintiff must overcome before she is entitled to an injunction. For instance, an injunction will not issue unless the right to relief is clear.⁸ And, it is axiomatic that a plaintiff cannot establish a clear right to a federal remedy without first meeting the threshold requirement of standing to bring her suit. It is this threshold requirement that is at issue here.⁹

The doctrine of standing is not without its perplexities, owing in substantial part to the doctrine's origins in the language of the Constitution. Article III mandates that federal courts sit only to decide true "cases or controversies." U.S. Const. art. III. This phrase has been interpreted to prohibit federal courts from hearing disputes that are not "consistent with a system of separate powers and ... traditionally thought to be capable of resolution through the judicial process." Flast v. Cohen, 392 U.S. 83, 97, 88 S.Ct. 1942, 1951, 20 L.Ed.2d 947 (1968). Specifically, in order to make out a "case or controversy," a plaintiff must demonstrate the existence of three elements: (1) that she has suffered an injury in fact, (2) that her injury was caused by the defendant's conduct, and (3) that her injury is capable of being redressed by a favorable ruling from the federal court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). These factors ensure that the federal courts confront only concrete disputes, ones that are live and ripe for adjudication, rather than mere requests for advisory opinions. The standing requirements also ensure that courts can indeed resolve the live disputes consistently with the judiciary's legitimate and limited role, thereby avoiding usurpation of legislative or executive functions.

In suits involving injunctive relief, this mandate of a live dispute translates into the requirement that a plaintiff face a threat of present or future harm. Lyons, 461 U.S. 95, 103 S.Ct. 1660 (1984). In other words, established standing rules preclude a plaintiff from obtaining injunctive relief based only on events that occurred in the past, even if the past events amounted to a violation of federal law. In Lyons, for example, the plaintiff was injured when Los Angeles police officers used an allegedly unprovoked and unnecessary chokehold on him during a routine traffic stop. In addition to damages under 42 U.S.C. § 1983, the plaintiff sought injunctive relief to prohibit the Los Angeles Police Department ("LAPD") from using chokeholds except where the proposed victim reasonably appeared to be threatening the immediate use of bodily force. Lyons, 461 U.S. at 97-98, 103 S.Ct. at 1662-63. On these facts, the Supreme Court held that Lyons had no standing to seek an injunction because, given the very remote possibility that he would ever again be subjected to a chokehold by the LAPD, he had failed to make out a live case or controversy with respect to injunctive relief. Id. at 102-05, 103 S.Ct. at 1665-67. In the Supreme Court's words, the operative principle is that "past exposure to illegal conduct does not in itself show a present case or controversy...