Filed: Oct. 26, 2021
Latest Update: Oct. 27, 2021
United States Court of Appeals
For the First Circuit
No. 21-1058
JOHN DOE; CHARLES COE; JANE ROE; DEBORAH A. TAYLOR, as guardian
for SCOTT STEPHEN JOHNSTONE, on behalf of themselves and all
others similarly situated,
Plaintiffs, Appellees,
NEW HAMPSHIRE HOSPITAL ASSOCIATION; ALICE PECK DAY MEMORIAL
HOSPITAL; ANDROSCOGGIN VALLEY HOSPITAL; CATHOLIC MEDICAL CENTER;
CHESHIRE MEDICAL CENTER; COTTAGE HOSPITAL; ELLIOT HOSPITAL;
FRISBIE MEMORIAL HOSPITAL; HCA HEALTH SERVICES OF NEW HAMPSHIRE,
(Parkland Medical Center and Portsmouth Regional Hospital);
HUGGINS HOSPITAL; LITTLETON HOSPITAL ASSOCIATION, (Littleton
Regional Hospital); LRGHEALTHCARE, (Franklin Regional Hospital
and Lakes Region General Hospital); MARY HITCHCOCK MEMORIAL
HOSPITAL; MONADNOCK COMMUNITY HOSPITAL; NEW LONDON HOSPITAL;
SPEARE MEMORIAL HOSPITAL; UPPER CONNECTICUT VALLEY HOSPITAL;
VALLEY REGIONAL HOSPITAL; WEEKS MEDICAL CENTER,
Intervenor-Plaintiffs, Appellees,
v.
LORI SHIBINETTE, in her official capacity as Commissioner of the
N.H. Department of Health and Human Services,
Defendant, Appellant,
SOUTHERN NEW HAMPSHIRE MEDICAL CENTER; CONCORD HOSPITAL; ST.
JOSEPH'S HOSPITAL, Nashua; MEMORIAL HOSPITAL, North Conway,
Defendants/Intervenor-Plaintiffs, Appellees,
NEW HAMPSHIRE CIRCUIT COURT DISTRICT DIVISION,
Defendant,
HONORABLE DAVID D. KING,
Third-Party Defendant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
Before
Lynch, Selya, and Barron,
Circuit Judges
Samuel R.V. Garland, Assistant Attorney General, with whom
Anthony J. Galdieri, Senior Assistant Attorney General, and Daniel
E. Will, Solicitor General, were on brief, for appellant Lori
Shibinette.
Aaron J. Curtis, with whom Gilles Bissonette, Henry
Klementowicz, American Civil Liberties Union of New Hampshire,
Theodore E. Tsekerides, Colin McGrath, and Weil, Gotshal & Manges
LLP were on brief, for class appellees.
Michael D. Ramsdell, with whom James P. Harris and Sheehan
Phinney Bass & Green, P.A. were on brief, for hospital appellees.
October 26, 2021
BARRON, Circuit Judge. This case comes to us on an
interlocutory appeal by the Commissioner of the New Hampshire
Department of Health and Human Services (the "Commissioner"). It
concerns the extent of the state's legal obligations to people who
are deemed to need emergency mental health treatment. The
plaintiffs are a class of individuals who claim to have been held
against their will for too long without due process on the basis
of a certification of their need for such treatment, and a group
of hospitals who claim to have been forced, in violation of their
federal constitutional rights, to retain persons certified to be
in need of such treatment.
The Commissioner challenges the District Court's denial
of her motion to dismiss the plaintiffs' complaints on the ground
that each set of plaintiffs lacks standing and that, in any event,
the Eleventh Amendment independently bars their claims against
her. The Commissioner now also contends to us that, in consequence
of the New Hampshire Supreme Court's recent ruling in Jane Doe v.
Commissioner of the New Hampshire Department of Health and Human
Services, ---A.3d----, No. 2020-0454, 2021 WL 1883165 (N.H. May
11, 2021), which was decided while this appeal was pending in our
Court, there is yet another jurisdictional bar to all the claims
of all the plaintiffs: they are moot.
We see no merit to the Commissioner's challenges to the
District Court's standing and Eleventh Amendment immunity rulings,
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and so we affirm the District Court's rulings in that regard. We
also are dubious of the Commissioner's mootness assertion, at least
given its sweep. Nonetheless, rather than resolve the mootness
issue on our own, we remand it for further consideration, given
that the District Court did not have occasion to consider it or
any of the factual questions that it may implicate.
I.
A.
New Hampshire law provides for the involuntary admission
to the state's mental health services system of anyone who "is in
such mental condition as a result of mental illness to pose a
likelihood of danger to himself or others." N.H. Rev. Stat. Ann.
§ 135-C:27; see also id. §§ 135-C:28(I), :34. New Hampshire law
further provides that an "involuntary emergency admission"
("IEA") -- the type of involuntary admission at issue in this
case -- "may be ordered upon the certificate of" an approved
healthcare professional. Id. § 135-C:28(I).
An "IEA certificate" must identify a "receiving
facility" to which a patient will be admitted for care, custody,
and treatment. Id. § 135-C:29(I); see also id. § 135-C:2(XIV).
Once an IEA certificate is completed, "a law enforcement officer"
must "take custody of the person to be admitted
and . . . immediately deliver such person to" that receiving
facility. Id.
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New Hampshire law defines "receiving facility" to
include hospitals designated by the Commissioner to provide mental
health treatment. Id. § 135-C:26(II)-(III). New Hampshire law
provides that, "[a]t the receiving facility, any person sought to
be involuntarily admitted for involuntary emergency admission
shall be given immediate notice" of certain rights, including the
right to representation. Id. § 135-C:30.
Private hospitals in New Hampshire are not themselves
"receiving facilities." But, a patient who is admitted to a
receiving facility from a private hospital is admitted only after
the private hospital completes an IEA certificate for that patient,
and the largest receiving facility, New Hampshire Hospital, does
not provide walk-in emergency or crisis services.
Crucial to this case, New Hampshire law provides that
"[w]ithin 3 days after an involuntary emergency admission . . .
there shall be a probable cause hearing in the [state] district
court having jurisdiction to determine if there was probable cause
for involuntary emergency admission." Id. § 135-C:31(I). The
state district court1 is required under New Hampshire law to render
1 The state district court is a division of the New Hampshire
Circuit Court, a state trial court, and should not be confused
with the United States District Court for the District of New
Hampshire. When we refer to the "District Court" in this opinion,
we mean the latter, federal court. We specify where we intend to
refer to state courts.
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a written decision by the end of the court's next regular business
day. Id.
B.
John Doe filed suit against the Commissioner in the
federal District Court on November 10, 2018, on behalf of himself
and all others similarly situated (the "class plaintiffs"). The
operative complaint alleged that Doe, a New Hampshire resident,
was detained pursuant to an IEA certificate at Southern New
Hampshire Medical Center on November 5, 2018 following a suicide
attempt and that he was not given a probable cause hearing within
the five days between that hospital's completion of an IEA
certificate naming Doe and the filing of this lawsuit. The
complaint further alleged that this delay exemplified a "systemic
pattern and practice in New Hampshire." Specifically, the
complaint alleged that the Commissioner interpreted state law to
require that involuntarily admitted patients receive a hearing in
the state district court three days after admission to a receiving
facility, rather than three days after completion of an IEA
certificate, and that, in consequence, members of the putative
class were being detained in hospital emergency departments for up
to twenty-seven days without procedural due process in violation
of the federal and state constitutions and the state law governing
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IEAs.2 The complaint requested declaratory and injunctive relief,
along with fees and costs. The plaintiffs filed a motion for class
certification along with the complaint.
A group of hospitals that admit patients pursuant to IEA
certificates that they complete (the "hospitals") intervened in
the suit. Like the class plaintiffs, the hospitals brought both
federal and state law claims. With respect to their federal law
claims, their operative complaint alleged that the Commissioner
violated their rights under the Takings and Due Process Clauses of
the U.S. Constitution and the Fourth Amendment's protection
against unreasonable seizures. The hospitals disclaimed any
request for compensatory damages and sought only injunctive and
declaratory relief, in addition to nominal damages, costs, and
attorneys' fees.
Both the class plaintiffs and the hospitals originally
named the state circuit court as a "necessary third party" under
Federal Rule of Civil Procedure 19(a) in their initial complaints
but did not do so in their amended complaints. The class
plaintiffs, however, did name the Administrative Judge of the state
circuit court as a defendant, citing the same rule, in their
2 The named plaintiffs also brought individual false
imprisonment claims against the hospitals where they were
detained, and John Doe sought a writ of habeas corpus in the
original complaint before voluntarily dismissing that count.
Those claims are not relevant to this interlocutory appeal, and we
do not discuss them further.
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amended complaint.3 All claims against the Administrative Judge
were later dismissed on Eleventh Amendment grounds.
The Commissioner moved to dismiss under Rule 12(b)(6)
primarily for failure to allege state action and filed an objection
to the motion for class certification. The class plaintiffs and
the hospitals amended their complaints and filed an amended motion
to certify the class in response. The Commissioner again moved
under Rule 12(b)(6) to dismiss both amended complaints for failing
to allege state action. The District Court denied the motions to
dismiss and granted the motion for class certification.
The Commissioner thereafter filed answers to both
complaints, in which she asserted as affirmative defenses Eleventh
Amendment immunity and that the plaintiffs lacked standing.
Following the granting of several extensions, the class plaintiffs
moved to compel the Commissioner to participate in a status
conference so that the case could proceed to discovery. The
District Court granted the motion, and the parties agreed to a
deadline to submit a discovery plan, which they met. Both sets of
plaintiffs voluntarily dismissed their state law claims against
the Commissioner. The Commissioner continued to assert her
jurisdictional defenses throughout these proceedings.
3The Administrative Judge oversees the state circuit court
system, and thus the administration of probable cause hearings.
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After the status conference, the District Court issued
an order holding the adoption of the discovery plan in abeyance
and requesting briefing on the Commissioner's jurisdictional
defenses. The Commissioner then filed motions to dismiss both
sets of plaintiffs' claims under Rule 12(b)(1) based on the
Eleventh Amendment and the plaintiffs' asserted lack of standing.
The District Court denied the motion to dismiss the class
plaintiffs' claims. The District Court largely denied the motion
to dismiss the hospitals' claims as well. However, the District
Court granted the motion to dismiss the hospitals' claims as to
their request for nominal damages based on the Commissioner's
assertion of Eleventh Amendment immunity.
C.
The Commissioner now appeals the District Court's
adverse standing and Eleventh Amendment rulings under the
collateral order doctrine. See P.R. Aqueduct & Sewer Auth. v.
Metcalf & Eddy, Inc., 506 U.S. 139, 141 (1993) (holding that "a
district court order denying a claim by a State or a state entity
to Eleventh Amendment immunity from suit in federal court may be
appealed under the collateral order doctrine"); Dantzler, Inc. v.
Empresas Berríos Inventory & Operations, Inc.,
958 F.3d 38, 43, 46
(1st Cir. 2020) (determining that, "[b]ecause standing is a
prerequisite to a federal court's subject matter jurisdiction, and
we must assure ourselves of our jurisdiction under the federal
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Constitution before we proceed to the merits of a case," we are
able to review a challenge to standing on an appeal from the denial
of immunity (internal citations and quotation marks omitted)).
There is, however, a new issue in the case that the Commissioner
asks us to address that stems from the New Hampshire Supreme
Court's opinion in Jane Doe, which was issued between the filing
of the appellees' briefs in this case and the filing of the
appellant's reply brief. We briefly describe how that ruling bears
on the matters before us in this appeal.
In Jane Doe, the New Hampshire Supreme Court confronted
a request for habeas relief under New Hampshire law by a single
petitioner who claimed that she had been denied her right to a
probable cause hearing within three days of the completion of an
IEA certificate that named her. Id. at *2. Jane Doe held that,
under New Hampshire law, a probable cause hearing must be held
within three days of the completion of an IEA certificate to
involuntarily admit a patient to the state mental health services
system, which Jane Doe defined to include certain approved medical
service providers at private hospitals who complete IEA
certificates.
Id. at *7, *10. Jane Doe thus rejected the
interpretation of New Hampshire law that the Commissioner had
advanced both to that court and to us in her opening brief, under
which such a hearing is said to be required to be held only within
three days of the patient named in the completed IEA certificate
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arriving at a "receiving facility" within the meaning of N.H. Rev.
Stat. Ann. §§ 135-C:2 and :26. Id. at *7, *12.
Following Jane Doe, moreover, the Governor of New
Hampshire issued Executive Order 2021-09 (the "Order"), which
directed "the State of New Hampshire [to] take immediate, targeted,
and direct action to ensure there is a system in place to help
individuals in mental health crisis have timely and appropriate
medical care." The Order further authorized and directed the New
Hampshire Department of Health and Human Services to use emergency
administrative rules to increase access to mental health services
and to "clarify the roles New Hampshire hospitals have in caring
for those patients who present at a hospital with mental health
concerns." The Order also required the Department "to review all
mental health services in the State of New Hampshire to determine
if current providers are equipped to meet the needs of New
Hampshire citizens and, where necessary, [to] identify new and/or
alternative providers," and to "expand the number of Designated
Receiving Facility ('DRF') beds on an expedited basis."
The Commissioner has issued certain emergency rules in
response to the Order. Neither the Order nor the emergency rules
set forth any express guarantee that either group of plaintiffs
will receive the relief that they seek.
The Commissioner asserts in her reply brief to us that
the New Hampshire Supreme Court's decision in Jane Doe has mooted
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this case, because it entitles both groups of plaintiffs to all
the relief that they seek. With our permission and without
opposition from the Commissioner, both sets of plaintiffs filed
sur-reply briefs, accompanied, on the hospitals' part, by data
showing that as of that time there continued to be a waitlist for
beds at receiving facilities.
II.
As we have explained, the Commissioner originally
presented only two issues to us on interlocutory appeal: standing
and Eleventh Amendment immunity. She now seeks to add a third
issue to the mix: mootness. Because each of these issues is
jurisdictional, we may take them up in any order. United States
v. Reid, 369 F.3d 619, 624 (1st Cir. 2004) ("[J]urisdictional
issues may be addressed in any sequence." (citing Ruhrgas AG v.
Marathon Oil Co., 526 U.S. 574, 584-85 (1999))).
The Commissioner invites us to remand without reaching
either the standing or Eleventh Amendment immunity issues on
account of the New Hampshire Supreme Court's new ruling in Jane
Doe. The record before us, however, is sufficiently developed for
us to resolve those issues now, thereby obviating the possible
need for wasteful future appeals. Thus, we start with the issue
of standing and then turn to the issue of Eleventh Amendment
immunity. We then circle back to the newly raised mootness issue
at the end.
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A.
Article III of the Constitution restricts our subject
matter jurisdiction to cases or controversies. See Penobscot
Nation v. Frey, 3 F.4th 484, 508 (1st Cir. 2021) (en banc). To
satisfy that constraint, a plaintiff must demonstrate that she has
standing to bring the claim that she seeks to have adjudicated.
See
id. A plaintiff has standing if she 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,
136 S.
Ct. 1540, 1547 (2016).
The Commissioner argues that the injuries alleged by
both the class plaintiffs and the hospitals are not fairly
traceable to her and that the requested relief would not redress
them. She thus contends that all their claims must be dismissed
for lack of standing.
Our review of the District Court's denial of the motions
to dismiss the plaintiffs' claims for lack of standing is de novo.
See Coggeshall v. Mass. Bd. of Registration of Psychs., 604 F.3d
658, 662 (1st Cir. 2010). At this stage of the litigation we must
construe the operative complaints "liberally and treat all well-
pleaded facts as true, according the plaintiff[s] the benefit of
all reasonable inferences." Murphy v. United States,
45 F.3d 520,
522 (1st Cir. 1995).
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1.
We start with the Commissioner's challenge to the
hospitals' standing. We note that the Commissioner does not
dispute that their complaint alleges an injury in fact. Nor do we
see how she could.
The complaint alleges that the hospitals have been
unlawfully forced to retain involuntarily admitted patients for
long periods of time in their facilities and thus to provide them
with rooms, medical care, food, security, and support from staff,
who also need to repeatedly fill out successive IEA certificates
every three days. In consequence, the complaint continues, the
hospitals have fewer beds to treat other patients who require
admission and are instead required "to perform the State's
obligations" and to undertake new construction to create the
necessary secure space. It alleges that one hospital retained
patients for an average length of five days in 2018.
The Commissioner contends, however, that the injuries
claimed by the hospitals are not fairly traceable to any violation
of law by her and thus are not redressable by the relief that the
hospitals seek in their suit against her. We are not persuaded.
The Commissioner argues that the costs that the
hospitals claim to have incurred in claiming to have been injured
are self-imposed. She points out that it is members of the
hospital staff who fill out the IEA certificates and that no
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statute compels them to complete those certificates. Thus, the
Commissioner contends, the costs to the hospitals of holding
patients at their facilities pursuant to IEA certificates are
incurred due to the hospitals' own decisions to admit them.
Furthermore, the Commissioner contends that there is a
traceability problem -- and thus a redressability problem -- for
yet another reason. She contends that "law enforcement" -- and
thus not her, as Commissioner -- is responsible for the transport
to "receiving facilities" of patients named in IEA certificates.
But, these arguments fail to address the fact that the
hospitals' complaint plausibly alleges that the Commissioner has
directed the hospitals not to release the patients named in IEA
certificates prior to their being given a probable cause hearing,
notwithstanding the undisputed existence of a state law
requirement for private hospitals in New Hampshire to have open
emergency rooms and to treat patients in line with professional
ethical standards, N.H. Rev. Stat. Ann. § 151:2-g; N.H. Code Admin.
R. Ann. Med. § 501.02(h). Thus, the Commissioner offers no
explanation for why the hospitals' alleged injuries are not fairly
traceable to her alleged failure to ensure that such a hearing is
held in the timely manner that they contend that federal law
requires, even though we understand each of the federal
constitutional claims at issue to be predicated necessarily --
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though not entirely -- on that alleged failure. Accordingly, we
see no merit in her traceability and redressability arguments.
2.
Turning to the class plaintiffs' standing, the
Commissioner once again does not dispute that the complaint at
issue alleges a clear injury in fact. Nor, again, do we see how
she could. The complaint alleges that the class plaintiffs are
being held against their will without having been afforded due
process for as many as twenty-seven days.
The Commissioner argues, however, that this injury, too,
is not traceable to any violation of law that she has committed
and thus is not redressable by the relief that the class plaintiffs
seek. In support of that contention, she argues that the state
circuit court system, law enforcement, the state legislature, and
private hospitals are responsible for the class plaintiffs'
claimed injury, because they are the ones responsible for failing
to hold a hearing, failing to transport patients to a hearing,
failing to appropriate enough money to expand the number of beds
at receiving facilities, and the control of emergency departments,
respectively.
But, the Commissioner does not dispute that the class
plaintiffs plausibly allege in their complaint that she is the one
who bars them from being released from the hospitals in which they
are being held until a probable cause hearing is conducted. Nor
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does she dispute that they have plausibly alleged that she has not
ensured that a probable cause hearing is held as soon as they
contend that it must be. Thus, because they have plausibly alleged
that she causes their alleged injury by failing to ensure that
such a hearing is held, her traceability and redressability
contentions are without merit.
B.
The Commissioner's remaining contention in her opening
brief is that the Eleventh Amendment makes her immune from the
claims of both the class plaintiffs and the hospitals. The
Eleventh Amendment generally bars suits against states and state
officials. However, the exception to Eleventh Amendment immunity
laid out in Ex parte Young, 209 U.S. 123 (1908), allows federal
courts to "'grant[] prospective injunctive relief to prevent a
continuing violation of federal law,' in part because 'a suit
challenging the constitutionality of a state official's action in
enforcing state law is not one against the State.'" Negrón-Almeda
v. Santiago,
528 F.3d 15, 24 (1st Cir. 2008) (quoting Green v.
Mansour,
474 U.S. 64, 68 (1985)).
"In determining whether the doctrine of Ex parte
Young avoids an Eleventh Amendment bar to suit, a court need only
conduct a 'straightforward inquiry into whether [the] complaint
alleges an ongoing violation of federal law and seeks relief
properly characterized as prospective.'" Verizon Md., Inc. v.
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Pub. Serv. Comm'n, 535 U.S. 635, 645 (2002) (quoting Idaho v. Coeur
d'Alene Tribe of Idaho,
521 U.S. 261, 296 (1997) (O'Connor, J.,
concurring in part and concurring in the judgment)). Our review
is de novo. Coggeshall,
604 F.3d at 662.
Both sets of plaintiffs seek prospective injunctive
relief, and the Commissioner does not contend otherwise.4 She
first contends, however, that neither set of plaintiffs alleges
that she has violated federal law and that, in fact, each set seeks
merely to require that she comply with state law. She thus
contends that the Eleventh Amendment bars her from being subjected
to suit on those claims under Pennhurst State School & Hospital v.
Halderman, 465 U.S. 89, 106 (1984). We do not agree with the
Commissioner's characterization of the claims that are at issue.
The class plaintiffs allege that the Commissioner has
deprived them of their liberty without the due process to which
they are entitled under the federal Constitution. Thus, at least
at first blush, the class plaintiffs seek to require the
Commissioner to comply with federal, not state, law and so, in
that respect, appear to bring claims that fall squarely within the
4The Commissioner does argue in her reply brief that
injunctive relief is inappropriate as a matter of law in light of
Jane Doe. Assuming without deciding that this argument is
jurisdictional and thus properly before us, we consider the
argument a strand of the Commissioner's mootness argument, which
we address infra.
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Ex parte Young exception, notwithstanding the Commissioner's
contrary contention.
The Commissioner responds that in fact the class
plaintiffs' claims are state law claims masquerading as federal
law claims. In her view, the class plaintiffs' claims merely seek
to require her to comply with their interpretation of the three-
day requirement for holding probable cause hearings under New
Hampshire law and so seek to compel her to comply with what is at
root a purely state law obligation, which is just what Pennhurst
precludes.
The problem with the Commissioner's argument is that the
class plaintiffs contend that, even if New Hampshire law were
different than it now is with respect to the duty of the
Commissioner to provide for a probable cause hearing within three
days of the signing of an IEA certificate, see Jane Doe, No. 2020-
0454, 2021 WL 1883165, at *12 (quoting John Doe v. Comm'r, N.H.
Dep't of Health and Hum. Servs., No. 18-cv-1039,
2020 WL 2079310,
at *11 (D.N.H. Apr. 30, 2020)) (providing that the Commissioner
has a legal duty to "provide for probable cause hearings within
three days of when an [involuntary emergency admission]
certificate is completed" (alteration in original)), they would
still be entitled under the Fourteenth Amendment to an injunction
directing the Commissioner to provide probable cause hearings
within the time that they contend due process demands that such
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hearings be held. They are thus plainly seeking more than just a
direction that state officials must "conform their conduct to state
law," Pennhurst, 465 U.S. at 106, regardless of whether their
contention about what the federal Constitution requires in terms
of setting such hearings has merit, see Vega v. Semple,
963 F.3d
259, 283-84 (2d Cir. 2020) ("Plaintiffs seek prospective relief
. . . to remedy alleged violations of both federal and state
law. . . . While any relief ultimately granted must serve to
remedy a violation of federal law, the Pennhurst doctrine does not
compel dismissal of claims for prospective relief against state
officers in their official capacities for alleged violations of
federal law simply because the party seeking such relief refers to
state law in order to bolster their federal claim.").
We turn, then, to the claims of the hospitals. Like the
class plaintiffs, they appear to be alleging violations of federal
rather than state law, despite what the Commissioner says. Indeed,
their complaint alleges that in violation of the Fourteenth
Amendment to the U.S. Constitution the Commissioner has taken their
private property for public use without just compensation,
deprived them of the right to due process of law, and unreasonably
seized their property.
The Commissioner nonetheless contends, much as she did
with respect to the claims of the class plaintiffs, that, despite
their federal veneer, the hospitals' claims are mere state law
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claims. She premises that contention on her assertion that each
of these supposed federal law claims is dependent on the allegation
that she has failed to comply with a purely state law obligation
to hold a probable cause hearing for a patient involuntarily
admitted based on an IEA certificate within three days of the
completion of that certificate. But, this contention overlooks
the fact that, like the class plaintiffs, the hospitals contend
with respect to each of their federal law claims that the
Commissioner's obligation to hold such hearings as quickly as they
contend that they must be held is itself rooted in the federal
Constitution rather than state law.5 Thus, for the same reason
that Pennhurst provides no basis for dismissing the claims of the
class plaintiffs, it also provides no basis for dismissing the
claims of the hospitals.
The Commissioner does separately argue that the Ex parte
Young doctrine is not applicable to either the class plaintiffs'
claims or the hospitals' because the State of New Hampshire is the
real, substantial party in interest, see Pennhurst, 465 U.S. at
101, and she advances two arguments to support that contention.
Neither one, however, is persuasive.
Although, as noted above, the hospitals seek only injunctive
5
relief, their takings claim is dependent on the State's failure to
provide "just compensation" as the federal Constitution requires
for a taking. See U.S. Const. amend. V.
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First, the Commissioner claims that the state is the
real, substantial party in interest because, to provide effective
relief for any of the claims by either set of plaintiffs, she would
need to exercise authority that, insofar as it resides anywhere
within state government, does not reside with her. But, we see no
basis for concluding that a request for the Commissioner to
exercise her authority to ensure that probable cause hearings are
held in the timely manner they contend is required is not a request
that seeks for her to exercise the powers of her office. See Jane
Doe, No. 2020-0454, 2021 WL 1883165, at *12.
Moreover, the hospitals contend that their injuries are
traceable to the Commissioner because she directs them to continue
to hold patients beyond the period that they contend she may, under
federal law, do so. Yet, the Commissioner does not explain how
she is without authority to comply with a federal law obligation
-- insofar as it exists -- to refrain from imposing such a
requirement on the hospitals.
The second reason that the Commissioner advances for
concluding that the state is the real, substantial party in
interest is that both sets of plaintiffs seek relief that, she
claims, would interfere with the public administration of the state
mental health system. See Pennhurst, 465 U.S. at 101 n.11. The
Commissioner premises this contention in her briefing to us,
however, solely on the assertion that she is not required to give
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probable cause hearings within three days of the completion of an
IEA certificate. The New Hampshire Supreme Court's decision in
Jane Doe, however, necessarily strips that contention of any force,
and she does not develop any argument in its place. See United
States v. Zannino, 895 F.2d 1, 17 ("[I]ssues adverted to in a
perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived.").
C.
The Commissioner does also argue in her reply brief that
both sets of plaintiffs' claims are moot because Jane Doe has
already granted them all the relief that they seek. Both sets of
plaintiffs take issue with the Commissioner on this score. They
point out that Jane Doe was a habeas case involving one plaintiff
and so resulted in no judgment against the Commissioner that they
may enforce. They also contend that their alleged injuries are
continuing because probable cause hearings continue to be delayed.
The hospitals add that the Commissioner's emergency rules seek to
require the hospitals to provide more services to the patients
awaiting transfer to receiving facilities whom they are holding.
The class plaintiffs, for their part, argue that they are entitled
to additional process that Jane Doe does not guarantee.
Given these contentions, we are dubious that every claim
in this case is moot, especially given the limited scope of Jane
Doe -- for example, Jane Doe did not address any issues implicated
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by the Takings Clause. But, rather than resolve this newly raised
issue on appeal, we conclude that it is prudent to leave it to the
District Court to address it in the first instance on remand. That
is especially so insofar as the assertion of mootness may implicate
any questions of fact that the District Court has not had an
opportunity to address.
III.
We affirm the rulings of the District Court. We remand
for further proceedings consistent with this opinion.
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