LCAP Project 2.3 Final Memo Draft

MEMORANDUM To: Professor Farrer From: Cydney Bailey Date: October 23, 2023 Re: If Nevermore Health Services files suit, on what basis could the city file a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1)? _____________________________________________________________________________ Question Presented If Nevermore Health Services files suit, on what basis could the city file a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1)? Brief Answer If Nevermore Health Services files suit, the city could file a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction on the ground that NHS lacks standing. NHS is not likely to be able to overcome the motion because it will be unable to substantially prove it has experienced a necessary requirement for standing: injury in fact. Factual Background Nevermore Health Services is a nonprofit organization operating out of downtown Nevermore that offers free or low-cost drug addiction services, a needle exchange program, and other general health resources to a diverse body of clientele. Welcome, N EVERMORE H EALTH S ERVS . (March 16, 2005), http://www.NevermoreHealthSvcs.org/welcome . Its needle exchange program services members of the community who struggle with drug addiction by providing them with the opportunity to bring in their used needles to NHS’s facility in exchange for fresh ones, which has shown to have combatted HIV and other bloodborne diseases amongst intravenous drug users in Nevermore. Id . Members of the community can drop used needles into a proper bin and receive unused needles in return. Id . The used needles are then safely disposed of by a medical waste disposal company that NHS contracts with. Id . The organization also offers other services such as medical screenings, emergency overdose medication and training, disease prevention training, and more. Id .

Ordinance 23-930, which will soon be passed by City Council, will prohibit the unauthorized transportation of used needles or syringes with the goal of protecting the community’s best interest by keeping unsterile needles, and the people that use them, off the streets of downtown Nevermore. N EVERMORE , J ERICHO , M UN . C ODE ch. 17, art. X, § 138.1 (2023). The ordinance will do this by affectively making it unlawful for NHS to carry out their needle exchange program as is. Id . Without a permit issued by JCEQ, Nevermore Health Services does not qualify as an authorized medical waste disposal facility, as the ordinance requires, and does not otherwise qualify as a medical facility. 25 Jericho Admin. Code § 101 (1955). This means the organization cannot partake in medical waste management activities, such as their needle exchange program requires. ch. 17, art. X, § 138.1. Secondly, §138.3(b) of the ordinance creates an exception for individuals if they do not qualify for §138.3(a). Id. This portion of the ordinance explains that an individual can transport up to eight personally used needles using their own motor vehicle, with the needles stored in a proper container in the proper area of said vehicle, to an authorized medical waste disposal facility. Id . NHS’s clients are largely low-income individuals who would not have access to their own vehicle. Welcome, N EVERMORE H EALTH S ERVS . (March 16, 2005), http://www.NevermoreHealthSvcs.org/welcome . Due to this factor, § 138.3(b) further prohibits NHS’s ability to carry out their needle exchange program as is. ch. 17, art. X, § 138.1. As a whole, Ordinance 23-930 would render Nevermore Health Services’ needle exchange program as it currently operates unlawful. ch. 17, art. X, § 138.1. As a result, the organization may find it a viable option to file suit against the City in federal court. If this were to occur, the following discussion explains on what basis the City could then file a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1). Fed. R. Civ. P. 12(b)(1). Discussion The first section of Article III of the United States Constitution establishes federal judicial power, and the second section limits that judicial power to be held only over cases or controversies. U.S. Const. art. III, § 2. In order for a case or controversy to be established, the courts must have jurisdiction over the issue in question. Id . One way a party can raise a defense to another party’s

prove that it has experienced a frustration of its purpose/s and/or a diversion of its resources. Havens Realty 455 U.S. 363. In Havens Realty , the Court held that an organization may establish standing by showing that its ability to carry out its mission was hindered as well as by showing that its resources were diverted or drained, resulting in an economic harm. Id . In that case, HOME, an organization that focused on equal opportunity housing, had two of its members act as testers to probe into the potential racial steering being purported by a Havens Realty Corp, a housing complex that denied potential black renters property but served white potential renters. Id . The court reasoned that because HOME was able to demonstrate that its ability to provide counseling and resources to its members was impaired as a result of the defendant’s conduct, the organization had standing. Id . While Havens Realty determines how an organization can show injury in fact, it does not state whether both prongs, frustration of purpose and diversion of resources, must be proven or if just evidence of one prong will suffice to establish injury in fact for standing. Havens Realty 455 U.S. 363. Nevertheless, the City could use this case to establish requirements that Nevermore Health Services may not be able to meet. Id . As discussed above, circuit courts have not definitively determined if both or just one of the aforementioned prongs must be shown for injury in fact and tend to reach different conclusions when it comes to these elements. Id . In Southern Walk v. OpenBand, both prongs are required. S. Walk at Broadlands Homeowner’s Ass’n, Inc. v. OpenBand at Broadlands, LLC , 713 F.3d 175, 183 (4th Cir. 2013). In Fair Employment , only the prong regarding the impairment of the organization’s mission was required. Fair Employment Council v. BMC Mktg. Corp . 28 F.3d 1268 (1994). In Dwivedi , the Court only requires the diversion of resources prong. Vill. of Bellwood v. Dwivedi , 895 F.2d 1521 (7th Cir. 1990). II. Nevermore Health Services may establish an injury in fact by showing frustration of purpose (or demonstrable injury to the organization’s activities). To show frustration of purpose, or a demonstrable injury to the organization’s activities, the organization must experience aggrievement by an unlawful practice that impairs its business or mission. BMC Mktg. 28 F.3d 1268. In order to establish standing, an organization must demonstrate that its ability to carry out its mission, whatever it may be, was compromised as a result of the defendant’s actions. Id . In BMC Mktg. , the Court held that an organization had

standing to the extent its business suffered as a result of BMC’s actions. Id . In this case, the Council sent testers to BMC’s corporation to determine if BMC was partaking in racial discrimination. Id . The court reasoned that because BMC interfered with the Council’s efforts to promote civil rights, they suffered frustration of purpose, and therefore, and injury in fact. Id . The City’s ordinance would effectively prohibit Nevermore Health Services from carrying out its mission to provide a needle exchange program to the city of Nevermore, and for this reason, NHS will use BMC Mktg. as a persuasive argument in its complaint because it sets the organization up to be able prove it has standing. Id . However, a valid counter to NHS’s probable argument is that its purpose is more than just the needle exchange program and prohibiting that portion of its organization is not a substantial hindrance of its mission. As expressed in Sierra Club v. Morton , a simple interest in the matter does not equate to an injury and does not establish standing. Sierra Club v. Morton , 405 U.S. 727 (1972). Additionally, as stated in Southern Walk v. OpenBand , both prongs, rather than solely the frustration of purpose prong, are essential to form standing. Southern Walk , 713 F.3d 175, 183. It may also be the case that NHS leans on the ruling in Northeastern Fla. Chapter of the Associated Gen. Contractors of America v. Jacksonville , where the court held that denying a certain group equal treatment establishes injury in fact. The difference, on the other hand, is that operating a needle exchange program is not a legally protected right. Northeastern Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville , 508 U.S. 656 (1993). It will be difficult for Nevermore Health Services to prove that its purpose, one that is not protected under any statute, was frustrated. Id . In sum, NHS may be able to prove standing by showing frustration of purpose, and it will be necessary for the City to use the aforementioned cases in its motion to dismiss to prove to the court why NHS has not successfully met the requirements. III. Nevermore Health Services may establish an injury in fact by showing diversion of resources (or consequent drain on resources). To show a diversion or drain of resources, an organization must provide evidence that its resources were spread too thinly or significantly depleted as a direct result of the defendant’s conduct. Dwivedi , 895 F.2d 1521. The only injury that needs to be shown in order to prove an organization has standing is an economic one, specifically an economic harm caused by a

Conclusion An organization needs to prove 1) some concrete, particularized, and imminent injury in fact, 2) a causal relationship between its injury and the defendant’s conduct, and 3) that the injury is redressable by the court. Lujan , 504 U.S. 555. If Nevermore Health Services files suit against the City, its issue will arise out of its ability, or lack thereof, in proving injury in fact. To prove injury in fact, Nevermore Health Services will have to show it is experiencing a frustration of its purpose and/or a diversion or drain of its resources. Havens Realty , 455 U.S. 363. If Nevermore Health Services does move forward with filing suit against the City because of the adopted ordinance, the City, in response, will be able to file a motion to dismiss for lack of subject matter jurisdiction for want of standing under Federal Rule of Civil Procedure 12(b)(1). Fed. R. Civ. P. 12(b)(1). In conclusion, the City will need to sufficiently prove – by referencing to the previously discussed cases in section one and two of this memorandum – that Nevermore Health Services has not substantially established each prong mentioned in the Havens case in order for its motion to dismiss to be granted by the Court. Havens Realty , 455 U.S. 363.