U.S. COURT OF APPEALS
THOMAS K. KAHN
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
D. C. Docket No. 96-2191-CV-FAM
CHRIS DOE, et al.,
ADVOCACY CENTER FOR PERSONS WITH DISABILITIES, INC.
CARLOS E. STINCER, Dr., et al.,
ATTORNEY GENERAL, Attorney for the State of Florida
Appeal from the United States District Court
for the Southern District of Florida
(May 4, 1999)
Before HATCHETT, Chief Judge, BARKETT, Circuit Judge, and RONEY, Senior Circuit
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.
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
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.
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.
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 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.
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.
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 (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. 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 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 (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; see
also United Food and Commercial Workers Union v. Brown Group, Inc., 517 U.S. 544, 552-53
(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. 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.
Id. at 555-56. 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. 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.
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
Because the parties and the district court focus first and foremost on PAMII, we do so
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. 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").
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.
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. § 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.
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.").
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,
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).
There is no suggestion that the Advocacy Center cannot satisfy Hunt's second prong,
which is the other Article III requirement for associational standing.
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).
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.
Nor do we agree with the Attorney General's second argument ⦣128;“ 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 ⦣128 -- an Article III requirement -- because it is not suing on behalf of any
members of the Advocacy Center.
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 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. 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. 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.
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 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. 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
§ 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
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 (1962)).
individuals who have received or are receiving mental health services or who are family
members of such individuals.⦣128; § 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 protect their collective interests." Hunt, 432 U.S. at 345.
conclude that the Advocacy Center may sue on behalf of its constituents like a more traditional
association may sue on behalf of its members.
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 (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
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 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
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.
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.
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 ⦣128;“ 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 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
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..
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
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
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
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 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 (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,
procedure, practice or guideline which is based on or relies upon section 395.3025(2), Florida
I thus concur in the reversal of the injunction.