Schwarz v. Georgia Composite Medical Board

Filing 64

OPINION AND ORDER granting 36 Motion to Dismiss for lack of subject matter jurisdiction; denying as moot 29 Motion for a Settlement Conference; denying as moot 45 Motion for Injunction; denying as moot 51 Motion to Transfer Case. Signed by Judge Michael L. Brown on 12/30/2020. (dob) Modified on 12/30/2020 to edit text (dob).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
Steven Benjamin Schwarz, MD,
Plaintiff,
Case No. 1:18-cv-1142-MLB
v.
Georgia Composite Medical Board,
Defendant.
________________________________/
OPINION & ORDER
Plaintiff Steven Benjamin Schwarz, MD, brings this pro se action
against Defendant Georgia Composite Medical Board under Title II of the
Americans with Disabilities Act (“ADA”). Defendant moves to dismiss for
lack of subject matter jurisdiction or, alternatively, for failure to state a
claim. (Dkt. 36.) The Court grants Defendant’s motion and dismisses
this case for lack of subject matter jurisdiction. As a result, the Court
also denies as moot the other motions pending in this case: Plaintiff’s
Motion for a Settlement Conference (Dkt. 29), his Motion for an
Injunction (Dkt. 45), and his Motion to Transfer to Alternative Dispute
Resolution Center (Dkt. 51).

I.

Background
Plaintiff is a psychiatrist who suffers from bipolar disorder. (Dkt.

28 at 1.) In 2009, he surrendered his medical license after the DeKalb
County Probate Court declared him mentally incompetent and appointed
a guardian for him.

(Id.)

In 2013, the Probate Court terminated

Plaintiff’s guardianship after finding that he had “sufficient capacity to
make or communicate significant responsible decisions” about his health,
safety, and property.

(Id. at 9–10.)

reinstatement of his medical license.

Plaintiff then applied for
(Id. at 1.)

Defendant denied

Plaintiff’s application because he failed a competency exam known as the
“SPEX.” (Id.) In November 2017, Plaintiff retook and passed the SPEX
exam. (Id. at 2.) Shortly thereafter, he again applied for reinstatement
of his medical license. (Id.)
Plaintiff filed this lawsuit in March 2018 while his reinstatement
application was still pending. (Id.) He claimed Defendant functionally
rejected his application by “tabling” it “indefinitely,” in violation of the
ADA. (Dkts. 1 ¶ 16; 16 ¶¶ 1, 5–8, 13.) Just three months later, however,
Defendant reinstated Plaintiff’s medical license pursuant to a consent
agreement signed by the parties. (Dkt. 28 at 20–24.) Plaintiff then filed

2

other documents purporting to challenge the terms of the consent
agreement, including its requirement that Plaintiff (for at least one year)
“only practice medicine in the same office as and under the direct
supervision

of

a

Board

approved

psychiatrist”

(“Supervision

Requirement”). (Id. at 21; see Dkts. 20; 22.)1
In February 2020, the Court ordered Plaintiff to file a single
amended complaint consolidating and clarifying his allegations and
claims. (Dkt. 27 at 1.) Plaintiff has now done so. (Dkt. 28.) His amended
complaint says Defendant violated Title II of the ADA by requiring him
to comply with the Supervision Requirement. (Id. at 2–3, 8.) He seeks
damages and asks the Court to terminate the Supervision Requirement.
(Id. at 8.)2

The agreement says Plaintiff can petition Defendant to terminate this
requirement once he has “been under direct supervision for a period of
one (1) year.” (Dkt. 28 at 23.) Plaintiff has not practiced psychiatry since
his license was reinstated, and he has not petitioned Defendant to lift the
Supervision Requirement. (See Dkts. 36-1 at 7 n.3; 43 at 9; 50 at 4.)
2 Plaintiff’s complaint alleges other potential misconduct, but his briefing
and requested relief both confirm he is focused only on the Supervision
Requirement. (See, e.g., Dkts. 28 at 8; 46 at 5.) To the extent he includes
allegations and theories in his briefing that do not appear in his
complaint, those allegations and theories do not change the operative
claims in this case. See Garcia v. Diaz, 752 F. App’x 927, 929–30 (11th
Cir. 2018) (“We do not consider, however, new factual allegations that
1

3

Defendant moved to dismiss in April 2020. (Dkt. 36.) It says
Plaintiff’s request for relief from the Supervision Requirement is moot
because his medical license has now lapsed, meaning he has no right to
practice medicine at all — with or without the Supervision Requirement.
Defendant also says Plaintiff’s damages request is barred by sovereign
immunity under the Eleventh Amendment.

Finally, Defendant says

Plaintiff’s claims fail on the merits even if the Court has subject matter
jurisdiction over this case.
II.

Discussion
A.

Plaintiff’s Request for Relief from the Supervision
Requirement
1.

Legal Standard

Article III of the Constitution limits the subject matter jurisdiction
of federal courts to “actual, ongoing cases or controversies.” Checker Cab
Operators, Inc. v. Miami-Dade Cnty., 899 F.3d 908, 915 (11th Cir. 2018).
To invoke this jurisdiction, “a plaintiff must show (1) [he or she] has
suffered an injury in fact that is (a) concrete and particularized and

Garcia raises in his brief on appeal but failed to plead in his Complaint.”);
Morgan v. Dick’s Sporting Goods, Inc., 359 F. Supp. 3d 1283, 1292 n.4
(N.D. Ga. 2019) (“A plaintiff cannot amend the complaint by arguments
of counsel made in opposition to a motion to dismiss.”).
4

(b) actual or imminent, not conjectural or hypothetical; (2) the injury is
fairly traceable to the challenged action of the defendant; and (3) it is
likely, as opposed to merely speculative, that the injury will be redressed
by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000).

“[A] plaintiff must

demonstrate [these elements] for each claim he [or she] seeks to press
and for each form of relief that is sought.” Town of Chester v. Laroe
Estates, Inc., 137 S. Ct. 1645, 1650 (2017).
Plaintiff’s Article III injury “must be extant at all stages of review,
not merely at the time the complaint is filed.” Checker Cab Operators,
899 F.3d at 915. “If the injury ceases, or is rendered unamenable to
judicial relief, then the case becomes moot and thereby incapable of
further Article III adjudication.” Id. “Thus, even a once-justiciable case
becomes moot and must be dismissed when the issues presented are no
longer live or the parties lack a legally cognizable interest in the
outcome.” Flanigan’s Enters., Inc. of Ga. v. City of Sandy Springs, 868
F.3d 1248, 1255 (11th Cir. 2017). Put another way, “[i]f events that occur
subsequent to the filing of a lawsuit or an appeal deprive the court of the
ability to give the plaintiff or appellant meaningful relief, then the case

5

is moot and must be dismissed.” Al Najjar v. Ashcroft, 273 F.3d 1330,
1336 (11th Cir. 2001).

“[D]ismissal is required because mootness is

jurisdictional.” Id.
2.

Analysis

Plaintiff seeks “relief [from] the requirement for monitoring by
another psychiatrist contained in” his consent agreement. (Dkt. 28 at 8.)
Defendant claims this request is moot because Plaintiff’s medical license
has now been revoked. The Court agrees.
Plaintiff’s medical license expired on December 31, 2019. (Dkt. 362 at 1.) He had until March 31, 2020 to renew it. Ga. Comp. R. & Regs.
360-2-.05(3) (“Licensees have the right to obtain a late renewal of their
licenses during the three (3) month period immediately following the
expiration date.”). He did not do so. (Dkt. 36-2 at 1.) This resulted in
the “revocation of [his] license . . . subject to reinstatement in the
discretion of the board.” O.C.G.A. § 43-34-8(m). As Plaintiff concedes,
Defendant has not reinstated his license, which means he is no longer

6

authorized to practice medicine. (See Dkt. 50 at 4 (“Plaintiff’s license is
now in revocation.”).)3
Because Plaintiff now lacks a valid medical license, it makes no
difference whether he is subject to the Supervision Requirement or
whether the Court grants his request and terminates that provision. In
either case, he cannot practice medicine at all. Put differently, since he
cannot practice medicine, it makes no difference whether the Supervision
Requirement remains or not.

The requirement does not affect his

practice of medicine and, as a result, a decision by this Court terminating
the Supervision Requirement will also have no effect on him. It is not
even clear the Court could take any action towards a license that has
expired. Although Plaintiff applied for reinstatement in November 2020,
there is no evidence his application will ever be granted, much less that
it will be granted anytime soon. (Dkt. 60.) On the contrary, Plaintiff has
said his license will “likely” remain lapsed (absent judicial intervention)

See Ga. Comp. R. & Regs. 360-2-.05(4) (“The Board shall
administratively revoke any license not renewed prior to the expiration
of the late renewal period. Such revocation removes all rights and
privileges to practice medicine and surgery in this State.”);
https://gcmb.mylicense.com/verification/ (showing Plaintiff’s license as
“lapsed”).
3

7

including because Defendant “could again delay indefinitely reinstating
Plaintiff’s license or even permanently deny reinstatement.” (Dkt. 50 at
4, 6); see Ga. Comp. R. & Regs. 360-2-.07(6) (“Reinstatement of the license
is within the discretion of the Board.”). Moreover, even if Plaintiff’s
license was reinstated, the Supervision Requirement would still be
irrelevant because it explicitly applies only to Plaintiff’s 2018
reinstatement and would thus be superseded by the terms of any
subsequent reinstatement.

(See Dkt. 28 at 21.)

Maybe a new

reinstatement would include the same requirement, but maybe not.
Because Plaintiff asks the Court to terminate the Supervision
Requirement, and because that relief “would no longer have any practical
effect on [his] rights or obligations,” the Court lacks the ability to give
him “meaningful relief” and his request must be dismissed as moot.
Flanigan’s Enters., 868 F.3d at 1264; Ashcroft, 273 F.3d at 1336.4

To the extent Plaintiff claims his license should not have been revoked,
he offers no evidence or authority in support of that assertion. Nor does
he explain how an improper revocation would save this case from
mootness.

4

8

B.

Plaintiff’s Request for Damages

Plaintiff seeks damages under Title II of the ADA on the ground
that Defendant functionally prevented him from practicing medicine by
requiring him to comply with the Supervision Requirement. Defendant
says Plaintiff’s damages claim is barred by sovereign immunity. The
Court again agrees with Defendant.
“Absent waiver by the State or valid congressional override, the
Eleventh Amendment bars a damages action against a State in federal
court.” Odebrecht Const., Inc. v. Sec’y, Fla. Dep’t of Transp., 715 F.3d
1268, 1289 (11th Cir. 2013). This bar is jurisdictional. See Omanwa v.
Catoosa Cnty., 711 F. App’x 959, 961–62 (11th Cir. 2017) (“The Eleventh
Amendment prohibits federal courts from exercising subject matter
jurisdiction over a lawsuit against a state.”). The parties do not dispute
that Defendant, as a “state agency,” is an arm of the state. O.C.G.A. § 4334-6(a); see Omanwa, 711 F. App’x at 962 (“Eleventh Amendment
immunity extends to state agencies and other arms of the state.”); see
also Wood v. Jackson Hosp., 2018 WL 4655740, at *1 (M.D. Ala. Sept. 27,
2018) (“assuming the state medical board is an arm of the State” for the

9

purposes of sovereign immunity).5 Nor do they dispute that Georgia has
not waived immunity for ADA suits. See, e.g., McCauley v. Georgia
Superior Court in Bibb Cty., 2011 WL 13176722, at *7 (N.D. Ga. Feb. 14,
2011) (“Georgia has not waived immunity for claims under the ADA.”).
Thus, the only question is whether Congress has validly abrogated
sovereign immunity for Plaintiff’s Title II ADA claim. See Wallace v.
Georgia Dep’t of Transp., 2005 WL 2031111, at *15 (M.D. Ga. Aug. 23,
2005) (“Neither party has argued that Georgia has waived its Eleventh
Amendment immunity for ADA cases. Thus, this analysis shall focus on
abrogation.”).
“The only constitutional authority Congress may invoke in
abrogating Eleventh Amendment immunity is [Section] 5 of the
Fourteenth Amendment.” Nichols v. Ala. State Bar, 2015 WL 1710125,
at *3 (N.D. Ala. Apr. 15, 2015); see Nat’l Ass’n of the Deaf v. Florida, 945
F.3d 1339, 1347 (11th Cir. 2020) (“Congress has the power to abrogate

Georgia law defines Defendant as an “independent state agency
attached to the Department of Community Health for administrative
purposes.” O.C.G.A. § 43-34-6(a). The Department of Community Health
is responsible for Defendant’s budget. Id. Defendant’s members are
appointed by the Governor and confirmed by the Senate, id. § 43-34-2(a);
they “take the constitutional oath of office,” id. § 43-34-4; and they can be
removed by the Governor, id. § 43-34-2(d)(2).

5

10

Eleventh Amendment immunity pursuant to its powers under Section 5
of the Fourteenth Amendment.”). Section 5 authorizes Congress to enact
“appropriate legislation” to “enforce” the substantive provisions of the
Fourteenth Amendment, including the Due Process and Equal Protection
Clauses. Nat’l Ass’n of the Deaf, 945 F.3d at 1347; see U.S. Const. amend.
XIV, § 5. This enforcement power is “broad.” Tennessee v. Lane, 541 U.S.
509, 518 (2004). Obviously, it allows Congress to abrogate sovereign
immunity for “state action that actually and independently violates the
Fourteenth Amendment.” Nat’l Ass’n of the Deaf, 945 F.3d at 1348 n.2.
But it also allows Congress to “enact so-called prophylactic legislation
that proscribes facially constitutional conduct, in order to prevent and
deter unconstitutional conduct.”

Lane, 541 U.S. at 518; see id.

(Section 5 gives Congress “the authority both to remedy and to deter
violation of rights guaranteed by the Fourteenth Amendment by
prohibiting a somewhat broader swath of conduct, including that which
is not itself forbidden by the Amendment’s text”). This prophylactic
legislation may not, however, “work a substantive change in
constitutional protections.”

Id. at 520.

“Accordingly, [Section] 5

legislation reaching beyond the scope of [Section] 1’s actual guarantees

11

must exhibit congruence and proportionality between the injury to be
prevented or remedied and the means adopted to that end.”

Bd. of

Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356, 365 (2001).
The Supreme Court has established a three-part test to determine
whether Congress validly abrogated sovereign immunity for a Title II
ADA claim. Under this framework, the Court must determine “(1) which
aspects of the State’s alleged conduct violated Title II; (2) to what extent
such misconduct also violated the Fourteenth Amendment; and
(3) insofar as such misconduct violated Title II but did not violate the
Fourteenth Amendment, whether Congress’s purported abrogation of
sovereign immunity as to that class of conduct is nevertheless valid.”
United States v. Georgia, 546 U.S. 151, 159 (2006); see Miller v. King, 449
F.3d 1149, 1150 (11th Cir. 2006) (“[I]t is important for lower courts to
[apply this test] on a claim-by-claim basis.”); Atchison v. Bd. of Regents of
the Univ. Sys. of Ga., 2014 WL 12013430, at *4 (N.D. Ga. Nov. 13, 2014)
(“The Court in Georgia set forth a three-part test to determine whether a
plaintiff may sue a state for money damages under Title II of the ADA.”).
Plaintiff’s claim fails under the first prong of the analysis if he has
not shown a Title II violation. Atchison, 2014 WL 12013430, at *4.

12

Congress validly abrogated immunity under the second prong if
Defendant’s misconduct violated the Fourteenth Amendment.

Id.

Otherwise, abrogation is proper only if Plaintiff satisfies the third prong,
which involves a further multi-step inquiry described below. Id.
1.

Whether Defendant Violated Title II6

Plaintiff claims Defendant violated Title II of the ADA by requiring
him to comply with the Supervision Requirement. (See, e.g., Dkts. 28 at
2–3, 8; 46 at 5.)
In order to state a Title II claim, a plaintiff generally must
prove (1) that he is a qualified individual with a disability;
(2) that he was either excluded from participation in or denied
the benefits of a public entity’s services, programs, or
activities, or was otherwise discriminated against by the
public entity; and (3) that the exclusion, denial of benefit, or
discrimination was by reason of the plaintiff’s disability.
Bircoll v. Miami-Dade Cnty., 480 F.3d 1072, 1083 (11th Cir. 2007).7 If a
Title II plaintiff seeks damages, as Plaintiff does here, he must also show

The Court in this section considers whether Plaintiff has plausibly
alleged a Title II violation under the pleading standard established in
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v.
Iqbal, 556 U.S. 662 (2009).
7 Title II states: “[N]o qualified individual with a disability shall, by
reason of such disability, be excluded from participation in or be denied
the benefits of the services, programs, or activities of a public entity, or
be subjected to discrimination by any such entity.” 42 U.S.C. § 12132.
6

13

“intentional discrimination,” which is an “exacting standard” and
“requires a showing of deliberate indifference.” Silberman v. Miami
Dade Transit, 927 F.3d 1123, 1134 (11th Cir. 2019).
Plaintiff has not established a Title II violation for at least two
reasons. First, Defendant could not have discriminatorily imposed the
Supervision Requirement on Plaintiff because Defendant did not impose
the requirement at all; Plaintiff voluntarily agreed to it. Both parties
signed the consent agreement containing the Supervision Requirement.
(Dkt. 28 at 24.)

Plaintiff certified that he read and understood the

agreement, consented to it, and entered into it “freely, knowingly and
voluntarily.” (Id. at 23–24.) The fact that Plaintiff has now changed his
mind and no longer wants to comply with the Supervision Requirement
does not make that requirement discriminatory. Defendant is simply
holding Plaintiff to the agreement he signed.
Even assuming Defendant unilaterally imposed the Supervision
Requirement, Plaintiff has not alleged it did so “by reason of” his
disability or with discriminatory intent. The consent agreement does not
tie the Supervision Requirement to Plaintiff’s disability. It has another
requirement that seems tied to his disability, specifically the

14

requirement that he participate in psychotherapy. (Dkt. 28 at 22.) 8 But,
nothing in the agreement suggests the Supervision Requirement arose
from his disability, and Plaintiff does not allege any facts that plausibly
suggest that connection.9 Georgia law also explicitly allows Defendant to
“impose any remedial requirements” on reinstated doctors who have not
practiced medicine for at least thirty months. Ga. Comp. R. & Regs. 3602-07.(3).

When Defendant reinstated Plaintiff’s license, he had not

practiced medicine for more than nine years. (Dkt. 28 at 20.) This long
period of inactivity presents an “obvious alternative explanation” for
requiring Plaintiff to work under the supervision of another psychiatrist
during his first year back in practice. Iqbal, 556 U.S. at 682 (intentional
discrimination was “not a plausible conclusion” in the light of an “obvious
alternative explanation”). The plausibility of this explanation is only
enhanced by the terms of the consent agreement, which require

Plaintiff does not challenge this provision as violating the ADA.
9 The closest Plaintiff gets is his allegation that Defendant “issues
Consent Orders to mentally handicapped physicians with a history of
psychiatric treatment which are in fact restricted medical licenses that
target mentally handicapped physicians for elimination from the
profession.” (Dkt. 28 at 4; see also id. at 3, 6–7.) But Plaintiff offers
insufficient factual support for this general allegation and he does not tie
it (or others like it) to his own consent agreement.
8

15

Plaintiff’s supervisor to “function as an educational preceptor” and to
submit reports on Plaintiff’s “medical knowledge” and the quality of his
work.

(Dkt. 28 at 21–22.)

This suggests Plaintiff’s supervisor was

appointed as a “remedial” measure rather than a mental health one. In
other words, there are good reasons to think Defendant would still have
required Plaintiff to comply with the Supervision Requirement even if he
did not suffer from bipolar disorder (or some other alleged disability). In
the light of this, any conclusory suggestion in the complaint that
Defendant imposed the Supervision Requirement to discriminate against
Plaintiff is insufficiently plausible on its face to state an ADA claim.
2.

Whether Defendant Violated the Fourteenth
Amendment

Even if Defendant’s imposition of the Supervision Requirement
violated the ADA (or his allegations stated such a claim), Plaintiff has
not shown it also violated the Fourteenth Amendment. Plaintiff appears
to say the Supervision Requirement violated his equal protection rights
under the Fourteenth Amendment. (See, e.g., Dkt. 46 at 5–6 (claiming a
violation of Plaintiff’s “right to equal treatment in licensing” and
referring to “the Fourteenth Amendment (equal treatment and equal
protection under the law)”).) But he has not pled “discriminatory intent
16

or purpose,” which is “a necessary prerequisite to any Equal Protection
Clause claim.” Parks v. City of Warner Robins, 43 F.3d 609, 616 (11th
Cir. 1995).

Plaintiff also has not identified a similarly situated

comparator (a non-disabled doctor who had not practiced for nine years)
whose medical license was reinstated without conditions like the
Supervision Requirement. See Mann v. Joseph, 805 F. App’x 779, 785
(11th Cir. 2020) (“To plead a plausible claim that the officers violated his
right to equal protection, Mann had to allege that (1) he is similarly
situated with other persons who received more favorable treatment; and
(2) his discriminatory treatment was based on some constitutionally
protected interest, such as race.”); S&M Brands, Inc. v. Georgia ex rel.
Carr, 925 F.3d 1198, 1203 (11th Cir. 2019) (“If the plaintiff has not been
treated differently than a similarly situated comparator, no Equal
Protection violation exists.”); Amnesty Int’l, USA v. Battle, 559 F.3d 1170,
1180 (11th Cir. 2009) (“In order to state an equal protection claim, the
plaintiff must prove that he was discriminated against by establishing
that other similarly-situated individuals outside of his protected class
were treated more favorably.”); Garner v. Bryson, 2018 WL 9963836, at
*6 (M.D. Ga. Jan. 12, 2018) (dismissing equal protection claim because

17

“Plaintiff has provided no information about any possible comparators”);
Stewart v. Fla. Dep’t of Educ. & Voc Rehab Div., 2010 WL 3119790, at *2
(N.D. Fla. Aug. 5, 2010) (“Plaintiff must identify the existence of similarly
situated individuals or there is no basis for an equal protection claim.”).
Finally, “the disabled are not a suspect class, and thus a
government’s differential treatment of them is only entitled to rational
basis review.” Rylee v. Chapman, 316 F. App’x 901, 907 (11th Cir. 2009);
see Heller v. Doe by Doe, 509 U.S. 312, 319 (1993) (“[A] classification
neither involving fundamental rights nor proceeding along suspect lines
is accorded a strong presumption of validity.”). Under rational basis
review, there is no equal protection violation if “there is any reasonably
conceivable state of facts that could” suggest “a rational relationship
between the disparity of treatment and some legitimate governmental
purpose.” Heller, 509 U.S. at 320. When Defendant reinstated Plaintiff’s
medical license subject to the Supervision Requirement, Plaintiff had not
practiced medicine for more than nine years during a substantial portion
of which he was mentally incompetent. As a result, Defendant could
rationally have concluded the Supervision Requirement was necessary to
protect the public and ensure the safety and wellbeing of Plaintiff’s

18

patients. In other words, there was a rational basis for Defendant’s
alleged misconduct, which means there was no Fourteenth Amendment
violation. See Garrett, 531 U.S. at 367–68 (“States are not required by
the Fourteenth Amendment to make special accommodations for the
disabled, so long as their actions toward such individuals are rational.
They could [act] quite hardheadedly—and perhaps hardheartedly—”
without violating the Constitution).
3.

Whether Congress Validly Abrogated Immunity

Because Plaintiff has not shown Defendant violated the Fourteenth
Amendment by requiring him to comply with the Supervision
Requirement, Plaintiff must show that “Congress’s purported abrogation
of sovereign immunity as to that class of conduct is nevertheless valid.”
Georgia, 546 U.S. at 159. “Congress may validly abrogate [sovereign]
immunity if (1) it unequivocally expresses its intent to abrogate, and
(2) it possesses the power to effectuate its intent” under Section 5 of the
Fourteenth Amendment.

Nat’l Ass’n of the Deaf, 945 F.3d at 1347.

“Title II plainly expressed Congress’s intent to abrogate Eleventh
Amendment immunity.” Id.; see 42 U.S.C. § 12202 (“A State shall not be
immune under the eleventh amendment to the Constitution of the United

19

States from an action in Federal or State court of competent jurisdiction
for a violation of [the ADA].”). So the question is whether Congress had
the power to effectuate its intent to abrogate immunity for Plaintiff’s
specific Title II claim here.
That question is governed by yet another three-part test under
which the Court must (1) “identify[] the particular constitutional right at
stake” (i.e., the specific Fourteenth Amendment right sought to be
enforced by Title II on the facts of this case); (2) “look to whether there
was a history of unconstitutional discrimination to support Congress’s
determination that prophylactic legislation was necessary” to enforce
that right; and (3) “determine whether Title II is an appropriate response
to this history and pattern of unequal treatment.” Nat’l Ass’n of the Deaf,
945 F.3d at 1348. The Court must conduct this analysis “on an individual
or as-applied basis in light of the particular constitutional rights at stake
in the relevant category of public services.” Ass’n for Disabled Americans,
Inc. v. Fla. Int’l Univ., 405 F.3d 954, 958 (11th Cir. 2005); see Nat’l Ass’n
of the Deaf, 945 F.3d at 1348 (“We must . . . start by identifying the
particular constitutional right at stake and by analyzing the particular

20

services at issue.”).10 The test is designed to ensure that prophylactic
legislation abrogates immunity only where it “exhibits a congruence and
proportionality between the injury to be prevented or remedied and the
means adopted to that end.” Ass’n for Disabled Americans, 405 F.3d at
957.

It is not always clear that the second prong of the test requires this
“as-applied” analysis. In Lane, for example, the Supreme Court
“considered the [historical] record supporting Title II as a whole” rather
than focusing only on the history of discrimination surrounding the
specific right and services at issue. Nat’l Ass’n of the Deaf, 945 F.3d at
1350; Ass’n for Disabled Americans, 405 F.3d at 958. But the Eleventh
Circuit has not taken a clear position on this issue. Although it has
repeatedly noted the general historical discussion in Lane, it has also
considered the “history of discrimination for the [specific] rights
implicated” in the cases at hand. Nat’l Ass’n of the Deaf, 945 F.3d at 1350;
Ass’n for Disabled Americans, 405 F.3d at 958. And, even in Lane,
notwithstanding its broader historical discussion, the Supreme Court
also considered Congress’s historical findings “with respect to the
particular services at issue in th[e] case.” Lane, 541 U.S. at 527; see
Guttman, 669 F.3d at 1117–18. Ultimately, it makes no difference here
whether the second prong of the test focuses on the historical record of
disability discrimination in public services generally or on the at-issue
right specifically. The result in this case would be the same under either
approach, including because the specific historical record is relevant
under the third prong of the analysis even if it is not relevant under the
second. See Toledo v. Sanchez, 454 F.3d 24, 35 (1st Cir. 2006)
(“It is necessary to understand the specific constitutional rights and the
history of constitutional violations in the particular area at issue in order
to determine the congruence and proportionality of Title II's measures in
that area.”).
10

21

In Guttman v. Khalsa, 669 F.3d 1101 (10th Cir. 2012), the
Tenth Circuit applied this test to the same kind of Title II claim asserted
by Plaintiff here. The Guttman plaintiff was a physician with a history
of depression and post-traumatic stress disorder. Id. at 1106. The state
medical board revoked his medical license because his “inability to
interact professionally with others posed a danger to his patients” and
“further treatment of his mental health problems was unlikely to
succeed.” Id. at 1107. Plaintiff sued the medical board under Title II of
the ADA, claiming the board discriminatorily “revoked his medical
license on the basis of his mental disability.” Id. at 1108, 1116. The
Tenth Circuit held his claim was barred by sovereign immunity because
“Title II does not validly abrogate [states’] sovereign immunity in the
context of professional licensing.” Id. at 1125.
The court first found (as this Court has done) that plaintiff did not
establish an actual violation of the Fourteenth Amendment. See id. at
1113–16.11 The court then applied the complex three-part test described
above to determine whether Title II’s abrogation of sovereign immunity

Unlike in our case, the parties in Guttman stipulated that plaintiff
stated a viable Title II claim, which meant the court was not required to
resolve that issue. Guttman, 669 F.3d at 1113.
11

22

for plaintiff’s claim was nevertheless valid. See id. at 1116–25. The court
found it was not valid because:
(1) “[T]he right at issue [was] a disabled individual’s right to practice
in his chosen profession,” which “does not invoke heightened
scrutiny.”
(2) “Congress has never specified a longstanding pattern of disability
discrimination in professional licensing, much less any irrational
discrimination that rose to the level of a constitutional violation.”
(3) Title II was not “congruent and proportional to the specific class of
violations at issue” because:
a. “[S]tates have strong, historical interests in medical licensing,
which touches on the core governmental function of promoting
and protecting the general public welfare.”
b. “[T]he Constitution affords [states] significant discretion in
the realm of professional licensing” because that area “does
not implicate a traditional category of fundamental rights”
and “persons with disabilities do not compose a suspect class.”
c. There is “very little evidence of a widespread pattern of
irrational state discrimination in professional licensing.”
d. “Title II prohibits a significant range of state action in this
realm that would easily survive rational basis review.”
e. Title II “inhibits a state’s ability to safely and efficiently make
professional licensing decisions.”
Id. at 1118–20, 1123–24.
The Court agrees with the Tenth Circuit’s analysis, which is
thorough, well-reasoned, and persuasive, and which applies directly to
23

Plaintiff’s claim here. See Nichols v. Ala. State Bar, 2015 WL 3823929,
at *5–6 (N.D. Ala. June 19, 2015) (finding Guttman “instructive” and
relying on it to hold that “Congress did not abrogate the states’ Eleventh
Amendment immunity against ADA claims regarding regulation of
attorney conduct because the abrogation provision exceeds the scope of
congressional authority provided by § 5 of the Fourteenth Amendment”).
The Court thus holds, as Guttman did, that (1) “Title II does not validly
abrogate [Georgia’s] sovereign immunity in the context of professional
licensing” and (2) Plaintiff’s Title II claim for damages is barred by
sovereign immunity.

Id. at 1125.

As a result, the Court grants

Defendant’s motion to dismiss, dismisses this case for lack of subject
matter jurisdiction, and denies as moot the other motions pending in this
case.12

Plaintiff cites Hason v. Medical Board of California, 279 F.3d 1167 (9th
Cir. 2002), for the proposition that Title II validly abrogated sovereign
immunity in the context of professional licensing. But Hason is not
persuasive because it was decided before two key Supreme Court
decisions involving the abrogation of sovereign immunity (Lane and
Georgia), it provides little substantive discussion in support of its
conclusion, and, without engaging in the required case-by-case analysis,
it relies on general Ninth Circuit precedent that “in enacting Title II of
the ADA Congress validly abrogated state sovereign immunity, and thus
states and their agencies may be sued pursuant to Title II.” Id. at 1170–
12

24

III. Conclusion
The Court GRANTS Defendant’s Pre-Answer Motion to Dismiss
Plaintiff’s Amended Complaint (Dkt. 36) and DISMISSES this action for
lack of subject matter jurisdiction.

The Court DENIES AS MOOT

Plaintiff’s Motion for a Settlement Conference (Dkt. 29), Motion for an
Injunction (Dkt. 45), and Motion to Transfer to Alternative Dispute
Resolution Center (Dkt. 51).
SO ORDERED this 30th day of December, 2020.

71. Moreover, even if the Court had subject matter jurisdiction over this
case, it would dismiss Plaintiff’s complaint on the merits because
(as explained above) Plaintiff agreed to the Supervision Requirement and
he has not shown Defendant imposed that requirement with
discriminatory intent or “by reason of” Plaintiff’s disability. The Court
would also deny Plaintiff’s motions on the merits even if they were not
moot. Plaintiff’s Motion for an Injunction is one paragraph long and
includes no citation to authority or evidentiary support in violation of
Local Rule 7.1(A)(1). Plaintiff’s motions for mediation and a settlement
conference are premature because Defendant opposes them and they
were filed before the Court’s resolution of Defendant’s motion to dismiss.
Finally, Plaintiff’s allegations, claims, and theories are not always clear
or easy to follow. To the extent the Court has misconstrued them, they
violate the Court’s prior order requiring Plaintiff to plead his claims with
“clarity and precision.” (Dkt. 27 at 7.)
25