Doe v. Stincer

REPRINTED OPINION

Chris DOE, et al., Plaintiffs,

Advocacy Center For Persons With Disabilities, Inc., Plaintiff-Appellee,

v.

Carlos E. STINCER, Dr., et al., Defendants,

Attorney General, Attorney for the State of Florida, Defendant-Appellant.

No. 98-4027.

United States Court of Appeals,

Eleventh Circuit.

May 4, 1999.

Appeal from the United States District Court for the Southern District of Florida. (No. 96-2191-CV-FAM),
Federico A. Moreno, Judge.

Before HATCHETT, Chief Judge, BARKETT, Circuit Judge, and RONEY, Senior Circuit Judge.

BARKETT, Circuit Judge:

The Attorney General of the State of Florida appeals the district court's order permanently enjoining

the enforcement of Fla. Stat. Ann. § 395.3025(2) as preempted by the Americans with Disabilities Act, 42

U.S.C. § 12101, et seq. ("ADA"). The Attorney General argues that the district court erred in enjoining the

statute because the Advocacy Center for Persons With Disabilities, Inc. ("Advocacy Center") lacked standing

and because the grant of injunctive relief was an abuse of discretion. We vacate the injunction granted by

the district court and remand for further proceedings.

BACKGROUND

On August 7, 1996, Chris Doe filed this action against the Attorney General of Florida, Mercy

Hospital, and two psychiatrists, Dr. Carlos Stincer and Dr. Hugo Gonzalez, who examined and treated Doe

at Mercy Hospital. Doe claimed that the failure of the hospital and its doctors to provide her with her medical

records violated the ADA and that the Florida statute permitting them to do so, § 395.3025(2), was preempted

by the ADA. In an amended complaint, Doe added as plaintiffs the American Civil Liberties Union and the
Advocacy Center, a federally-authorized protection and advocacy organization established under the

Protection and Advocacy for Mentally Ill Individuals Act ("PAMII"), 42 U.S.C. § 10801, and the Protection

and Advocacy of Individual Rights Act ("PAIR"), 29 U.S.C. § 794e.

Section 395.3025 provides hospital patients with a right to obtain their medical records. Under its

terms, "[a]ny licensed facility, shall, upon written request, and only after discharge of the patient, furnish, in

a timely manner, without delays for legal review, to any person admitted therein for care or treatment or

treated thereat ... a true and correct copy of all patient records, ..., which ... are in the possession of the

licensed facility...." § 395.3025(1). However, § 395.3025(2) states that "[t]his section does not apply to

records maintained at any licensed facility the primary function of which is to provide psychiatric care to its

patients, or to records of treatment for any mental or emotional condition at any other licensed facility...."

While this case was pending in the district court, the Florida legislature enacted § 394.4615, spelling out a

patient's right of access to mental health records, amending § 395.3025(1) in accordance with § 394.4615.1

Under § 394.4615,

Patients shall have reasonable access to their clinical records, unless such access is determined by
their patient's physician to be harmful to the patient. If the patient's right to inspect his or her clinical
record is restricted by the facility, written notice of such restriction shall be given to the patient and
the patient's guardian, guardian advocate, attorney, and representative. In addition, the restriction
shall be recorded in the clinical record, together with the reasons for it. The restriction of a patient's
right to inspect his or her clinical record shall expire after 7 days but may be renewed, after review,
for subsequent 7-day periods.

§ 394.4615(9).

This case was resolved on motions for summary judgment. On December 2, 1997, the district court

granted Advocacy Center's motion for summary judgment, concluding that the Advocacy Center had standing

to sue and that Fla. Stat. § 395.3025(2) was preempted by the ADA. Accordingly, the district court

permanently enjoined its enforcement. On the same day, the district court denied summary judgment both

1
Prior to the enactment of § 394.4615, Florida law left to the unfettered discretion of hospitals and
their physicians the decision whether to provide a patient with a copy of his or her mental health records.

2
to Doe and the American Civil Liberties Union, concluding that additional discovery was necessary to

determine whether either of them had standing to sue. The district court also dismissed Doe's complaint

against Dr. Gonzalez, finding that it did not state a claim under the ADA. The Attorney General then filed

this interlocutory appeal. We have jurisdiction over the Attorney General's appeal under 28 U.S.C. §

1292(a)(1), which gives us appellate jurisdiction over orders granting injunctions. Because the district court

did not enter a final judgment as to the claims of Doe and the American Civil Liberties Union, their claims

are not before us.

DISCUSSION

I.

This case presents the question, one of first impression in this Circuit, whether a federally-authorized

protection and advocacy organization established under PAMII and PAIR has standing to challenge a state

statute limiting access to mental health records on behalf of individuals with mental health disabilities.

Before turning to PAMII and PAIR and their grant of standing to protection and advocacy systems, we review

the well-established general principles governing associational or organizational standing.

A.

It has long been settled that an organization has standing to sue to redress injuries suffered by its

members without a showing of injury to the association itself and without a statute explicitly permitting

associational standing. In Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975), the Supreme

Court first explicitly recognized that "[e]ven in the absence of injury to itself, an association may have

standing solely as the representative of its members." Id. at 511, 95 S.Ct. 2197. The Court stated that "[t]he

association must allege that its members, or any one of them, are suffering immediate or threatened injury

as a result of the challenged action of the sort that would make out a justiciable case had the members

themselves brought suit." Id. "So long as this can be established, and so long as the nature of the claim and

of the relief sought does not make the individual participation of each injured party indispensable ..., the

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association may be an appropriate representative of its members, entitled to invoke the court's jurisdiction."

Id.

In Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d

383 (1977), the Supreme Court refined Warth 's requirements into a three-part test for associational standing.

Under Hunt, "an association has standing to bring suit on behalf of its members when: (a) its members would

otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the

organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation

of individual members in the lawsuit." Id. at 343, 97 S.Ct. 2434; see also United Food and Commercial

Workers Union v. Brown Group, Inc., 517 U.S. 544, 552-53, 116 S.Ct. 1529, 134 L.Ed.2d 758 (1996). These

are the sole requirements. Accordingly, under Hunt, an association may bring suit on behalf of its members

or constituents despite the fact that individual members have not actually brought suit themselves. Nor must

the association name the members on whose behalf suit is brought. As we have stated, "neither unusual

circumstances, inability of individual members to assert rights nor an explicit statement of representation are

requisites." Church of Scientology v. Cazares, 638 F.2d 1272, 1279 (5th Cir.1981).

In United Food, the Supreme Court considered associational standing under an explicit congressional

grant of standing. The Court indicated that the first two prongs of the Hunt test are Article III requirements

which must always be satisfied to establish standing, but that the third prong is only a prudential requirement,

which may be eliminated by Congress. United Food, 517 U.S. at 555-58, 116 S.Ct. 1529. The Court

explained that

[t]here are two ways in which Hunt addresses the Article III requirements of injury in fact, causal
connection to the defendant's conduct, and redressability. First and most obviously, it guarantees the
satisfaction of these elements by requiring an organization suing as representative to include at least
one member with standing to present, in his or her own right, the claim ... pleaded by the
association.... Hunt 's second prong is ... complementary to the first, for its demand that an
association plaintiff be organized for a purpose germane to the subject of its member's claims raises
an assurance that the association's litigators will themselves have a stake in the resolution of the
dispute, and thus be in a position to serve as the defendant's natural adversary.

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Id. at 555-56, 116 S.Ct. 1529. However, "once an association has satisfied Hunt 's first and second prongs

assuring adversarial vigor in pursuing a claim for which member Article III standing exists, it is difficult to

see a constitutional necessity for anything more." Id. at 556, 116 S.Ct. 1529. Thus, "the third prong of the

associational standing test is best seen as focusing on ... matters of administrative convenience and efficiency,

not on elements of a case and controversy within the meaning of the Constitution." Id. at 557, 116 S.Ct.

1529.

B.

With this framework in mind, we turn to PAMII and PAIR. Congress, recognizing that "individuals

with mental illness are vulnerable to abuse and serious injury," enacted PAMII in 1986 "to ensure that the

rights of individuals with mental illness are protected" and "to assist States to establish and operate a

protection and advocacy system for individuals with mental illness which will ... protect and advocate the

rights of such individuals through activities to ensure the enforcement of the Constitution and Federal and

State statutes...." 42 U.S.C. § 10801(a)(1), (b)(1), (2)(A). Under PAMII, a protection and advocacy system,

such as the Advocacy Center, is vested with

the authority to ... pursue administrative, legal, and other appropriate remedies to ensure the
protection of individuals with mental illness who are receiving care or treatment in the State; and
pursue administrative, legal, and other appropriate remedies on behalf of an individual who ... was
an individual with a mental illness; and ... is a resident of the State, but only with respect to matters
which occur within 90 days after the date of discharge of such individual from a facility providing
care or treatment.

§ 10805(a)(1)(B), (C).

Supplementing PAMII's protections, Congress enacted PAIR in 1992. PAIR authorizes protection

and advocacy organizations, such as the Advocacy Center, to provide services to individuals with disabilities

who are not eligible for services under pre-existing protection and advocacy legislation, including PAMII.

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See 29 U.S.C. § 794e(a)(1) (providing that PAIR is applicable when individuals are not eligible for services

under PAMII because they do not meet PAMII's definition of "individuals with mental illness").2

Under PAMII and PAIR, there are two theories under which a protection and advocacy system may

sue. First, it may seek to establish that the defendant's actions caused injury to the protection and advocacy

system itself. We implicitly recognized a protection and advocacy system's standing to redress injuries to

itself in Alabama Disabilities Advocacy Program v. J.S. Tarwater Developmental Ctr., 97 F.3d 492 (11th

Cir.1996). There, we held that a protection and advocacy organization had a right to sue under the

Developmental Disabilities Assistance and Bill of Rights Act to obtain records relating to the deaths of two

residents at a facility for mentally retarded persons. Because the organization itself had a right to the records,

it had standing to sue to redress the injury to itself caused by the facility's refusal to provide those records.

However, in this case, the Advocacy Center does not seek to establish standing based on injuries to itself.

Although PAMII includes detailed provisions granting a protection and advocacy organization a right to

obtain records, including mental health records, and provides a means to disclose those records to the

individual described in the records under certain circumstances, see 42 U.S.C. § 10805(a)(4), § 10806(b), the

Advocacy Center has not sought to use these provisions in this case. Second, as the text of PAMII indicates,

a protective and advocacy organization may sue on behalf of its constituents during the course of their

treatment or within ninety days after being discharged from a treatment facility pursuant to § 10805(a)(1)(B),

(C), subject, of course, to the requirements of Article III as laid out in Hunt and its progeny. It is this latter

type of standing with which we concern ourselves here.

II.

We turn now to the Attorney General's argument that the Advocacy Center lacks standing in this case.

First, the Attorney General argues that the Advocacy Center lacks standing under PAMII because it has not

brought suit on behalf of a specific individual who has been denied records pursuant to Fla. Stat. Ann. §

2
Because the parties and the district court focus first and foremost on PAMII, we do so as well.

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395.3025(2). According to the Attorney General, because PAMII authorizes a protection and advocacy

system to bring suit "to ensure the protection of individuals with mental illness," § 10805(a)(1)(B), there can

be no standing under PAMII in the absence of a specific individual. Second, the Attorney General argues

that the Advocacy Center cannot sue as an association under the first prong of Hunt because it has no

members who would have standing to bring suit in their own right. Consequently, the Attorney General

argues that, because the first prong of Hunt is a mandate of Article III, even assuming that the Advocacy

Center has standing under PAMII, PAMII's grant of standing offends Article III. We reject these arguments.

A.

As to the Attorney General's first argument, nothing in PAMII can reasonably be read to require the

Advocacy Center to name a specific individual in bringing suit to redress violations of the rights of

individuals with mental illness. The text of PAMII grants standing to protection and advocacy systems to

pursue legal remedies to "ensure protection of individuals with mental illness." § 10805(a)(1)(B).

Considering the statute as a whole, we cannot read this language to requires a protection and advocacy system

to name a specific individual in order to have standing to sue. The very purpose of PAMII was to confer

standing on protection and advocacy systems, such as the Advocacy Center, as representative bodies charged

with the authority to protect and litigate the rights of individuals with mental illness. As the district court

correctly recognized, the standing of protection and advocacy systems as representatives of the segment of

our society afflicted with mental illness is well-established in the law. See Trautz v. Weisman, 846 F.Supp.

1160, 1162-63 (S.D.N.Y.1994); Rubenstein v. Benedictine Hosp., 790 F.Supp. 396, 407-09 (N.D.N.Y.1992);

Goldstein v. Coughlin, 83 F.R.D. 613, 614-15 (W.D.N.Y.1979); Naughton v. Bevilacqua, 458 F.Supp. 610,

616 n. 3 (D.R.I.1978), aff'd on other grounds, 605 F.2d 586 (1st Cir.1979); S.Rep. No. 103-120, at 39 (1994),

reprinted in 1994 U.S.C.C.A.N. 164, 202 ("[T]he current statute is clear that [protection and advocacy]

systems have standing to pursue legal remedies to ensure the protection of and advocacy for individuals with

[mental illnesses] within the State.").

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 Moreover, under Article III's established doctrines of representational standing, we have never held

that a party suing as a representative must specifically name the individual on whose behalf the suit is brought

and we decline to create such a requirement in PAIMI. See Cazares, 638 F.2d at 1278 ("[T]he requisite for

representational standing ... is not necessarily an explicit statement of representation but a close nexus

between the organization and its members and an allegation of injury to its members as a result of the action")

(citations omitted); Congress of Racial Equality v. Douglas, 318 F.2d 95, 102 (5th Cir.1963) (upholding right

of civil rights organization to assert the constitutional rights of its members despite the fact that pleadings did

not seek relief on behalf of any specific member).3 As these cases hold, it is enough for the representative

entity to allege that one of its members or constituents has suffered an injury that would allow it to bring suit

in its own right.

B.

Nor do we agree with the Attorney General's second argument—that the Advocacy Center lacks

standing under Article III to sue as an association under Hunt because it is not a membership organization.

The Attorney General argues that the Advocacy Center cannot meet the first prong of Hunt—an Article III

requirement—because it is not suing on behalf of any members of the Advocacy Center.4 He principally

relies on the Fifth Circuit's decision in Association of Retarded Citizens v. Dallas County Mental Health &

Retardation Ctr. Bd. of Trustees, 19 F.3d 241 (5th Cir.1994). In that case, the Fifth Circuit held that a

protection and advocacy organization lacked standing to sue on behalf of persons with developmental

disabilities. The court held that the organization lacked standing because the individual the organization

sought to represent "is not a 'member' of Advocacy, Inc." Id. at 244. The court stated that "[t]he organization

bears no relationship to traditional membership groups because most of its 'clients'—handicapped and

3
Decision of the former Fifth Circuit decided prior to September 30, 1981 are binding on this court.
Bonner v. City of Prichard, Ala., 661 F.2d 1206 (11th Cir.1981) (en banc).
4
There is no suggestion that the Advocacy Center cannot satisfy Hunt 's second prong, which is the
other Article III requirement for associational standing.

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disabled people—are unable to participate in and guide the organization's efforts." Id. However, we cannot

subscribe to the Fifth Circuit's reasoning because we think that, as was the case in Hunt, the fact that the

Advocacy Center has constituents rather than members does not deprive it of Article III standing here.

In Hunt, the Supreme Court held that the Washington State Apple Advertising Commission had

standing to challenge a North Carolina statute prohibiting the display of Washington State apple grades. The

Apple Advertising Commission, like the Advocacy Center here, was established by the Washington

legislature to protect and advance the interests of a particular segment of the community—the State's apple

growers and dealers. Like the Advocacy Center, the Apple Advertising Commission was not a membership

organization. The Court nonetheless held that the Commission could sue on behalf of the state's apple

growers, specifically rejecting the argument that the Apple Advertising Commission lacked standing because

it did not have any members.

The Court explained that the "Commission, while admittedly a state agency, for all practical purposes

performs the function of a traditional trade association representing the Washington apple industry.... It ...

serves a specialized segment of the State's economic community which is the primary beneficiary of its

activities, including the prosecution of this kind of litigation." Hunt, 432 U.S. at 344, 97 S.Ct. 2434. The

Court also pointed out that the apple growers and dealers, while not members of the Apple Advertising

Commission, "possess all the indicia of membership in an organization. They alone elect the members of the

Commission; they alone may serve on the Commission; they alone finance its activities, including the costs

of this lawsuit, through the assessments levied upon them." Id. at 344-45, 97 S.Ct. 2434. Finally, the Court

noted that "the interests of the Commission itself may be adversely affected by the outcome of this litigation"

since a reduction in apple sales would lead to reduced assessments due to the Commission. Id. at 345, 97

S.Ct. 2434.

We find the Advocacy Center to be analogous to the Apple Advertising Commission in Hunt. To

begin with, as in Hunt, Congress designated the Advocacy Center, like other protection and advocacy

9
systems, to "serve[ ] a specialized segment of the ... community which is the primary beneficiary of its

activities, including prosecution of this kind of litigation." Id. at 344, 97 S.Ct. 2434. Specifically, under

PAMII, Congress authorized protection and advocacy organizations such as the Advocacy Center to act as

agencies to protect and enforce the rights of individuals with mental illness, "perform[ing] the functions of

a traditional ... association representing [individuals with mental illness]." Id.

Further, under PAMII, individuals with mental illness possess "the indicia of membership in an

organization." Id. In PAMII, Congress directed that multi-member governing boards of protection and

advocacy organizations such as the Advocacy Center must be composed of "members who broadly represent

or are knowledgeable about the needs of clients served by the system" and must "include individuals who

have received or are receiving mental health services and family members of such individuals." 42 U.S.C.

§ 10805(c)(1)(B); see also 42 C.F.R. § 51.22(b)(2). Moreover, protection and advocacy organizations must

have advisory councils, sixty percent of whose membership as well as the chair of the council must be

"comprised of individuals who have received or are receiving mental health services or who are family

members of such individuals." § 10805(a)(6)(B), (C); 42 C.F.R. § 51.23(b)(1), (2). Additionally, PAMII

provides that a protection and advocacy organization must afford the public with an opportunity to comment

on the priorities and activities of the protection and advocacy system and must establish a grievance

procedure for clients and prospective clients "to assure that individuals with mental illness have full access

to the services of the system" and "that the eligible system is operating in compliance with [PAMII]." §

10805(a)(8), (9); 42 C.F.R. §§ 51.24, 51.25. Much like members of a traditional association, the constituents

of the Advocacy Center possess the means to influence the priorities and activities the Advocacy Center

undertakes. "In a very real sense," therefore, as in Hunt, "the [Advocacy Center] represents the State's

[individuals with mental illness] and provides the means by which they express their collective views and

10
protect their collective interests." Hunt, 432 U.S. at 345, 97 S.Ct. 2434.5 Accordingly, we conclude that the

Advocacy Center may sue on behalf of its constituents like a more traditional association may sue on behalf

of its members.

C.

The right to sue on behalf of its constituents, however, does not relieve the Advocacy Center of its

obligation to satisfy Hunt 's first prong by showing that one of its constituents otherwise had standing to sue

to support the district court's grant of summary judgment and injunctive relief. See Lujan v. Defenders of

Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (noting that elements of standing "must

be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e. with

the manner and degree of evidence required at successive stages of the litigation"). In support of its summary

judgment motion, the Advocacy Center relied solely on the affidavit of Dana Farmer, the director of the

Advocacy Center's PAMII program.

The Farmer affidavit contains two allegations pertinent to the Advocacy Center's standing. Paragraph

seven states that "[b]ased on complaints and information received by the Advocacy Center, many Floridians

who want to see their mental health records are denied access. Others do not even try to gain access to their

records because they believe that such efforts would be futile, given the statutory protection available to

licensed facilities under Florida law." Paragraph eight of Farmer's affidavit states that "[o]n August 1, 1997,

the Advocacy Center received a complaint from an individual that she had been denied access to her treatment

5
We also note that, as in Hunt, "the interests of the [Advocacy Center] itself may be adversely affected
by the outcome of this litigation." Id. In Hunt, the Court recognized this interest in terms of the
possibility that the challenged statute, if enforced, might reduce the assessment owed to the Apple
Advertising Commission. Although the Advocacy Center has no similar direct financial interest in this
litigation, the issue of access to records is an important issue for the Advocacy Center's clients and, to the
extent that the Advocacy Center devotes its work to assisting clients in obtaining records, other needs
may go unmet. This "nexus between the interests of the [Advocacy Center] and its constituents coalesces
with the other factors noted above to 'assure that concrete adverseness which sharpens the presentation of
issues upon which the court so largely depends for illumination of difficult ... questions.' " Id. (quoting
Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962)).

11
records, as permitted by § 395.3025(2)." Attached to the affidavit is a fax cover sheet stating that a specific

authorization is required to release psychiatric, drug, alcohol, or HIV information and that records of such

information cannot be released to a patient.

The Attorney General argues that the Farmer affidavit was insufficient to support the Advocacy

Center's standing. We agree. These two paragraphs do not contain any evidence that any of the Advocacy

Center's constituents have been denied access to mental health records based on the Florida statute at issue

here. Without such allegations, the Advocacy Center cannot show that any of its clients suffered a concrete

injury that is traceable to the challenged statute and could be redressed by a favorable decision in this

action—as it must to establish standing under Hunt. See United Food, 517 U.S. at 555, 116 S.Ct. 1529.6 The

Farmer affidavit tells us that many Floridians have been denied access to mental health records and that others

do not request their records, believing such efforts to be futile. It does not, however, state that any of these

persons were clients of the Advocacy Center and it does not state that the health care facility denied them

access on the basis of the Florida statute at issue here. Nor does the affidavit state that these persons were

currently receiving treatment or that they had been discharged in the past ninety days—the class of persons

with mental illness whom the Advocacy Center may represent under PAMII. Likewise, the paragraph

detailing a recent complaint received by the Advocacy Center does not state that the individual in question

was seeking mental health records and does not state that the denial was based on the Florida statute at issue

here. As the Attorney General points out, the hospital that denied the request may have been acting in

6
The Attorney General suggests that the Advocacy Center cannot establish the redressability prong of
Article III standing because the Attorney General has no enforcement authority over the Florida statute at
issue here. However, even assuming that the Attorney General lacks the necessary enforcement authority
to support the grant of injunctive relief enjoining the statute's enforcement, it does not follow that any
injuries to the Advocacy Center's constituents cannot be redressed by a favorable ruling in this action.
The amended complaint in this action requested both declaratory and injunctive relief. Even if injunctive
relief is not appropriate, a favorable ruling could result in a declaratory judgment against the Attorney
General holding the Florida statute invalid under the ADA. Thus, although we vacate the injunction
entered by the district court, we do not agree that the Advocacy Center lacks standing under the
redressability prong of Article III.

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violation of Florida law. Consequently, as to this individual, the Advocacy Center has not established that

this patient's injury was caused by the Florida statute at issue and that the injunctive relief requested by the

Advocacy Center will redress this injury.

The Advocacy Center may well be able to establish its standing to sue in this case. On this record,

however, it has not done so. Accordingly, the district court erred in enjoining the Florida statute at issue here.

The judgment of the district court is therefore VACATED and the case is REMANDED for further

proceedings consistent with this opinion.

RONEY, Senior Circuit Judge, concurring specially:

I concur in the decision of the court that the injunction against the Attorney General cannot stand.

The sole issue before us on this appeal is whether the district court erred in entering a judgment that

"Defendant Bob Butterworth, Attorney General of the State of Florida, is permanently enjoined from

enforcing section 395.3025(2), Florida Statutes, and is further enjoined from promulgating any regulation,

rule, policy, procedure, practice or guideline which is based on or relies upon section 395.3025(2), Florida

Statutes."

In my judgment, this injunction must be reversed on two independent grounds argued by the Attorney

General on this appeal.

First, and this is a reason relied upon by the Court's opinion, the Advocacy Center for Persons With

Disabilities, Inc. ("Advocacy Center") has not established that there is no genuine issue of material fact

concerning alleged actions under section 395.3025(2), Florida Statutes, which would violate the Americans

with Disabilities Act, 42 U.S.C. § 12101, et seq. ("ADA"). I agree with the Court's decision that the two

paragraphs in the Dana Farmer affidavit:

do not contain any evidence that any of the Advocacy Center's constituents have been denied access
to mental health records based on the Florida statute at issue here. Without such allegations, the
Advocacy Center cannot show that any of its clients suffered a concrete injury that is traceable to the
challenged statute and could be redressed by a favorable decision in this action.

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 There are three sources of authority that the Advocacy Center can assert in bringing this action.

First, it may seek redress for injuries to itself from defendant's actions. See Alabama Disabilities Advocacy

Program v. J.S. Tarwater Developmental Ctr., 97 F.3d 492 (11th Cir.1996). Second, under the Protection

and Advocacy for Mentally Ill Individuals Act ("PAMII"), 42 U.S.C. § 10805(a)(1)(B), it may

"pursue...legal...remedies to ensure the protection of individuals with mental illness who are receiving care

and treatment in the State." This provision relates to litigation concerning the general population of

individuals with mental illness, the Advocacy Center's constituents as a whole or certain constituents as a

group, so to speak, and would not seem to require that the action be brought on behalf of a specific individual.

Third, under section 10805(a)(1)(C), it may "pursue...legal...remedies on behalf of an individual with mental

illness" who "is a resident of the State" and who meets certain qualifications. This subsection requires that

the action be brought on behalf of a specific individual.

As the Court has held, the Advocacy Center has not sought redress under the first or third of these

sources of authority, and has not established that there are individuals who need a remedy or protection under

the second source of authority.

Second, regardless of the standing of the Advocacy Center to challenge the constitutionality of the

Florida statute, the injunction entered by the district court should be reversed for entirely independent reasons.

It should be kept in mind that to the extent the district court's judgment can be read as a declaratory decree

concerning the validity of the Florida statute, that aspect of the decision is not now before us on this

interlocutory appeal. We only have jurisdiction to consider the entry of the injunction against the Attorney

General.

The injunction must be reversed for one reason argued by the Attorney General.

The defendant Bob Butterworth, neither individually nor as Attorney General of the State of Florida

has any authority to enforce the statute challenged nor can he either prevent action pursuant to the statute or

redress any injury allegedly suffered because of the invalidity of the statute. That he may be the proper

14
defendant in a declaratory decree action challenging the validity of a Florida statute does not mean that it is

proper to enter an injunction against him.

In ACLU v. Florida Bar, 999 F.2d 1486 (11th Cir. 1993) and Socialist Workers Party v. Leahy, 145

F.3d 1240 (11th Cir. 1998), relied upon in this Court's opinion, the appellate court found that the

governmental defendants had specific enforcement authority over the challenged statutes. The other case

cited in the Court's opinion, Florida ex rel. Shevin v. Exxon Corp., 526 F.2d 266 (5th Cir.), cert. denied sub

nom. Standard Oil Co. v. Florida ex rel. Shevin, 429 U.S. 829, 97 S.Ct. 88, 50 L.Ed.2d 92 (1976) simply held

that the Attorney General was the proper state official to bring an antitrust action under the Sherman Act on

behalf of the State of Florida.

In this case, the Advocacy Center has failed to point out any action which the Attorney General

would or could take to enforce the statute against any doctor, hospital or mental institution. It is improper

to bring the full force of a federal injunction against the Attorney General in the absence of any showing that,

but for the injunction, he would either take steps to enforce section 395.3025(2), Florida Statutes, or would

promulgate any regulation, rule, policy, precedure, practice or guideline which is based on or relies upon

section 395.3025(2), Florida Statutes.

I thus concur in the reversal of the injunction.

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