Oregon Advocacy Center et al v. Mink et al

1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DISABILITY RIGHTS OREGON,
METROPOLITAN PUBLIC DEFENDER
SERVICES, INC., and A.J. MADISON,
Plaintiffs,
v.
SEJAL HATHI, in her official capacity as Director
of the Oregon Health Authority, and JAMES
DIEGEL, in his official capacity as Interim
Superintendent of the Oregon State Hospital,
Defendants.
Case Nos.: 3:02-cv-00339-AN (lead)
3:21-cv-01637-AN
(consolidated)
6:22-cv-01460-AN
(consolidated)
OPINION AND ORDER
Plaintiffs Legacy Health System, Legacy Emanuel Hospital & Health Center (together with
Legacy Health System, "Legacy"), PeaceHealth, Providence Health & Services – Oregon ("Providence"),
and St. Charles Health System, Inc. ("St. Charles") bring this action against defendant Dr. Sejal Hathi ("Dr.
Hathi"), in her official capacity as Director of the Oregon Health Authority ("OHA").1 On October 21,
2024, proposed-intervenor National Alliance on Mental Illness-Oregon ("NAMI-Oregon") filed a motion
to intervene. On November 12, 2024, defendant filed a motion to dismiss for lack of subject matter
jurisdiction and failure to state a claim. On December 6, 2024, proposed-intervenor Mental Health
Association of Portland ("MHAP") filed a motion to intervene. The Court heard oral argument from the
parties and proposed-intervenors on August 27, 2025. For the reasons set forth below, defendant's motion
to dismiss is GRANTED in part and DENIED in part, and both NAMI-Oregon and MHAP's motions to
intervene are DENIED as moot.
1 The Court uses the lead case caption in this Opinion and Order, however, all references to "plaintiffs" and "defendant"
used herein refer to the named plaintiffs and defendant in consolidated case Legacy Health System v. Allen, No. 6:22-
cv-01460-AN ("Legacy Health System"), the case that is the subject of the instant motions to dismiss and intervene.
Similarly, all references to "this action" or "this case" refer to Legacy Health System.
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LEGAL STANDARD
A. Motion to Dismiss
1. Lack of Subject Matter Jurisdiction
Under Federal Rule of Civil Procedure 12(b)(1), a motion to dismiss for lack of jurisdiction
may be a facial or factual attack. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). A
factual attack involves a dispute as to the completeness or the truth of the facts underlying the complaint
that would, by themselves, otherwise invoke federal jurisdiction. See id. When a jurisdictional motion
"involv[es] factual issues which also go to the merits, the trial court should employ the standard applicable
to a motion for summary judgment [because] resolution of th[ose] jurisdictional facts is akin to a decision
on the merits." Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983). In other words, a court
interpreting a factual attack may rely on evidence outside the complaint and resolve factual disputes.
McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988) (citing Land v. Dollar, 330 U.S. 731, 735 n.4
(1947)); Safe Air for Everyone, 373 F.3d at 1039.
Summary judgment, and thus a factual attack under Rule 12(b)(1), may be granted when
"[v]iewing the evidence in the light most favorable to the nonmoving party," the Court determines that
"there are no genuine issues of material fact." Safe Air for Everyone, 373 F.3d at 1040 n. 4. However, "the
mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that there be no genuine issue of material fact."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphases omitted). Substantive law
determines which facts are material. Id. at 248. "Only disputes over facts that might affect the outcome of
the suit under the governing law will properly preclude the entry of summary judgment." Id. A dispute
about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party." Id.
When a "defendant raises a factual attack, the plaintiff must support [their] jurisdictional
allegations with 'competent proof'" under the same evidentiary standard that governs in the summary
judgment context." Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014) (internal citation omitted)
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(quoting Hertz Corp. v. Friend, 559 U.S. 77, 96-97 (2010)). The plaintiff therefore carries "the burden of
proving by a preponderance of the evidence that each of the requirements for subject-matter jurisdiction
has been met." Id.
2. Failure to State a Claim
A motion to dismiss for failure to state a claim may be granted only when "'there is no
cognizable legal theory'" or when the complaint lacks sufficient factual allegations to "'support a cognizable
legal theory'" or "state a facially plausible claim for relief." Shroyer v. New Cingular Wireless Servs., Inc.,
622 F.3d 1035, 1041 (9th Cir. 2010) (quoting Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001)) (citing
Ashcroft v. Iqbal, 556 U.S. 662 (2009)). In evaluating the sufficiency of a complaint's factual allegations,
the court must accept as true all well-pleaded material facts alleged in the complaint and construe them in
the light most favorable to the non-moving party. Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140
(9th Cir. 2012). To be entitled to a presumption of truth, allegations in a complaint "may not simply recite
the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair
notice and to enable the opposing party to defend itself effectively." Starr v. Baca, 652 F.3d 1202, 1216
(9th Cir. 2011). The court must draw all reasonable inferences from the factual allegations in favor of the
plaintiff. Newcal Indus. v. Ikon Office Sol., 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). The court need not,
however, credit a plaintiff's legal conclusions that are couched as factual allegations. Iqbal, 556 U.S. at
678.
A complaint must contain sufficient factual allegations to "plausibly suggest an entitlement
to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery
and continued litigation." Starr, 652 F.3d at 1216. "A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged." Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)).
"The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer
possibility that a defendant has acted unlawfully." Id. (internal quotation marks omitted).
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B. Motion to Intervene
1. Intervention as of Right
Rule 24(a)(2) requires a court to permit intervention when four requirements are met:
"(1) the motion must be timely; (2) the applicant must claim a 'significantly protectable'
interest relating to the property or transaction which is the subject of the action; (3) the
applicant must be so situated that the disposition of the action may as a practical matter
impair or impede its ability to protect that interest; and (4) the applicant's interest must be
inadequately represented by the parties to the action."
Wilderness Soc'y v. U.S. Forest Serv., 630 F.3d 1173, 1177 (9th Cir. 2011) (en banc). The applicant seeking
to intervene bears the burden of showing that all four requirements are met. Chamness v. Bowen, 722 F.3d
1110, 1121 (9th Cir. 2013). In making its determination, a court is "guided primarily by practical and
equitable considerations, and the requirements of intervention are broadly interpreted in favor of
intervention." United States v. Alisal Water Corp., 370 F.3d 915, 919 (9th Cir. 2004).
2. Permissive Intervention
Rule 24(b)(1)(B) grants courts discretion to permit intervention when an applicant makes
a timely motion to intervene and "has a claim or defense that shares with the main action a common question
of law or fact." The movant bears the burden of establishing three requirements: (1) the applicant "shares
a common question of law or fact with the main action;" (2) the applicant's "motion is timely;" and (3) "the
court has an independent basis for jurisdiction over the applicant's claims." Cooper v. Newsom, 13 F.4th
857, 868 (9th Cir. 2021). Even if all three requirements are met, "the district court must consider whether
intervention will unduly delay the main action or will unfairly prejudice the existing parties." Id.
BACKGROUND
A. Mink-Bowman
The present action is one of three consolidated cases. The other two cases are Oregon
Advocacy Center v. Mink, No. 3:02-cv-00339-AN ("Mink"), which is the lead case; and Bowman v.
Matteucci, No. 3:21-cv-01637-AN ("Bowman") (together with Mink, "Mink-Bowman").
The plaintiffs in Mink, who include two non-profits and an individual, brought suit in 2002,
seeking a federal court order compelling OHA and the Oregon State Hospital ("OSH") to expeditiously
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provide hospital admission and medical treatment to criminal defendants who were determined by Oregon
courts to be unfit to proceed to trial due to an inability to aid and assist in their own defense. Mink, No.
3:02-cv-00339-AN, Findings of Fact & Concls. of L., ECF [47], at 1. Despite orders to transfer aid-and-
assist individuals for admission and treatment, these individuals were instead being held in jail for lengthy
periods of time. Mink, No. 3:02-cv-00339-AN, Op. & Order of January 9, 2023, ECF [338], at 2. Then-
District Judge Owen M. Panner held a court trial on April 8, 2002, and then issued findings of fact and
conclusions of law on May 10, 2002, in which he ordered that OHA and OSH "ensure that persons who are
declared unable to proceed to trial [due to an inability to aid and assist in their own defense] be committed
to the custody of the superintendent of a state hospital designated by the Department of Human Services as
soon as practicable[,]" and that such admissions "be done in a reasonably timely manner, and completed
not later than seven days after the issuance of an order determining a criminal defendant to be unfit to
proceed to trial[.]" Mink, No. 3:02-cv-00339-AN, Mins. of Proceedings of April 8, 2002, ECF [37]; Mink,
No. 3:02-cv-00339-AN, Findings of Fact & Concls. of L. 1-2, 14. Judge Panner's May 10, 2002, ruling is
hereinafter referred to as the Mink permanent injunction. The Mink defendants appealed the Mink
permanent injunction, and the Ninth Circuit affirmed. Or. Advoc. Ctr. v. Mink, 322 F.3d 1101, 1121-22
(9th Cir. 2003). Since that time, the Mink defendants' efforts toward compliance with the permanent
injunction have been court-monitored.
As litigation in Mink went on, in 2021, two individuals found unfit to proceed to trial based
on court orders finding them to be "guilty except for insanity" ("GEI") filed Bowman, also against OHA
and OSH. See Bowman, No. 3:21-cv-01637-AN, Compl., ECF [1]. These individuals were later joined as
plaintiffs by one of the non-profit plaintiffs in Mink, and, similar to the plaintiffs in Mink, the plaintiffs in
Bowman alleged that the State of Oregon held individuals found GEI in jail for months despite orders from
state court judges directing these individuals' commitment to OSH. Mink, No. 3:02-cv-00339-AN, Op. &
Order of January 9, 2023, at 3. In 2022, several health systems operating community hospitals within the
state—specifically, the five named plaintiffs in this case—joined Mink-Bowman as amici. See Mink, No.
3:02-cv-00339-AN, Op. & Order of May 25, 2023, ECF [395].
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B. This Action
In addition to joining Mink-Bowman as amici, plaintiffs simultaneously filed the present
action, alleging various constitutional violations committed by defendant against both plaintiffs and their
civilly committed patients. See Compl., ECF [1].2 After conducting a hearing, then-presiding Senior
District Judge Michael W. Mosman consolidated the case with Mink-Bowman. See Op. & Order of January
9, 2023, ECF [41], at 4; Mink, No. 3:02-cv-00339-AN, Mins. of Proceedings of October 25, 2022, ECF
[306]. As a result of the consolidation, this case was reassigned to Judge Mosman from now-Chief District
Judge Michael J. McShane. Notice of Case Reassignment, ECF [9]. The three consolidated cases have
since been reassigned from Judge Mosman to District Judge Adrienne Nelson. Notice of Case
Reassignment, ECF [108]; Mink, No. 3:02-cv-00339-AN, ECF [476].
1. First Amended Complaint
Plaintiffs amended their complaint in this case for the first time on December 2, 2022. 1st
Am. Compl. ("FAC"), ECF [28]. The FAC sets forth seven claims for relief, for violations of (1) civilly
committed individuals' Fourteenth Amendment due process rights; (2) plaintiffs' Fourteenth Amendment
due process rights; (3) plaintiffs' rights under the Takings Clause of the Fifth Amendment; (4) plaintiffs'
rights under the Takings Clause of Article I, Section 18 of the Oregon Constitution; (5) civilly committed
patients' rights under ORS § 426.060; (6) civilly committed patients' rights under ORS § 426.150(1); and
(7) civilly committed patients' rights under ORS §§ 759A.142(5)(a) and (6)(a). Id. at 26-38. Ultimately,
plaintiffs sought in the FAC declaratory and injunctive relief, nominal damages, and attorneys' fees. Id. at
5, 38-40.
On December 22, 2022, defendant filed a motion to dismiss the FAC. Def. 1st Mot. to
Dismiss, ECF [30]. In that motion, defendant argued that (1) plaintiffs lacked Article III standing (a) to
bring their own claims, (b) to bring third-party claims on behalf of civilly committed patients, and
(c) because plaintiffs' claims were not ripe; (2) the FAC failed to state a claim for (a) substantive or
2 All citations without reference to another case number are to the docket in this case, Legacy Health System.
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procedural due process, (b) takings, or (c) violations of Oregon state law; and (3) the Eleventh Amendment
bars nominal damages. Id. Plaintiffs responded in opposition on January 26, 2023, ECF [43], and defendant
replied on February 16, 2023, ECF [55]. In addition, DRO filed an amicus brief regarding the third-party
standing issues on January 13, 2023, ECF [42], which plaintiffs responded to on January 26, 2023, ECF
[44].
Judge Mosman held oral argument and then took defendant's first motion to dismiss under
advisement. Mins. of Proceedings of April 25, 2023, ECF [74]. On May 25, 2023, Judge Mosman issued
an opinion and order granting defendant's motion and dismissing the FAC with prejudice (the "May 2023
opinion and order"), in which he found, in relevant part, that plaintiffs lacked third-party standing to bring
claims on behalf of their civilly committed patients. Op. & Order of May 25, 2023, ECF [88].
Plaintiffs first sought clarification of the May 2023 opinion and order, Pls. Unopposed Mot.
for Clarification, ECF [93], and then moved for its reconsideration, Pls. Mot. for Recons., ECF [96]. Upon
denial of the motion for reconsideration, see ECF [101], plaintiffs appealed the May 2023 opinion and
order, see ECF [103]. On appeal, the Ninth Circuit reversed in part, vacated in part, and remanded to the
district court "in light of the third-party standing principles discussed" in its decision, wherein it held that
the record was "insufficient to determine whether [plaintiffs have] third-party standing to assert claims on
behalf of civilly committed patients." Legacy Health Sys. v. Hathi, No. 23-35511, 2024 WL 2843034, at
*3 (9th Cir. June 5, 2024). Regarding the issue of third-party standing, the Ninth Circuit wrote:
"How the principles discussed in these cases and others should apply here is not
obvious. Doctors often have been found to have standing to assert the rights of their
patients. But [plaintiffs] do[] not seek to provide appropriate long-term treatment to civilly
committed patients [themselves]; rather, [plaintiffs] seek[] an injunction requiring OHA to
provide appropriate long-term care to these patients. Accepting as true the [FAC]'s
allegations, 'the outcome' that [plaintiffs] 'seek[] on the face of [their] complaint' would
benefit civilly committed patients by ensuring they receive appropriate long-term treatment
from OHA. But as [the FAC] acknowledges, bed space at OSH is limited, and OSH is
under competing pressure from the injunction upheld by our circuit in [Mink], which
requires OSH to admit criminal defendants who are found 'mentally incapacitated . . .
within seven days of the judicial finding of their incapacity to proceed to trial.' Whether
[plaintiffs'] interests are sufficiently aligned with the interests of [their] civilly committed
patients may depend on what outcome [plaintiffs] in fact [are] likely to achieve in this
litigation and whether that outcome would benefit the patients whom [plaintiffs] seek[] to
represent.
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. . .
"The district court also found that [plaintiffs] lacked third-party standing because
[they] 'complain about how much civilly committed patients are costing them and about
the harms the patients inflict on their staff members.' These allegations can be relevant to
third-party standing, especially to the extent they may reflect a prioritization of the
hospitals' financial concerns or indicate a potential disjunction of interests if the remedy
sought by [plaintiffs]—the creation or allocation of additional bed space at OSH for civilly
committed patients—proves unavailable. But some tension in [plaintiffs' FAC] between
the needs of civilly committed patients and [plaintiffs] is not necessarily enough to show
that [plaintiffs] lack[] a 'close relation' to the patients in light of our precedent instructing
that parties with some degree of adversity may nonetheless be 'sufficiently aligned' for
third-party standing purposes."
Id. at *2 (internal citations omitted).
2. Second Amended Complaint
On October 4, 2024, defendant filed a second amended complaint (the "SAC"). 2d Am.
Compl. ("SAC"), ECF [117]. The SAC sets forth the following allegations. Plaintiffs are some "of Oregon's
largest not-for-profit health systems" who all "provide hospital and healthcare services . . . [and] receive
patients who are detained or civilly committed pursuant to Oregon law." Id. ¶ 5. Plaintiffs "are not
designed, equipped, staffed, or intended to provide long-term mental health treatment for civilly committed
individuals." Id. ¶ 6. Indeed, "[o]nly some of [the] hospitals have behavioral health units," and units
occupied by civilly committed individuals "are highly restrictive, locked environments," wherein patients
may only leave "for short periods of time, if at all, because of environmental, regulatory, and staffing
limitations." Id. Additionally, plaintiffs "operate emergency departments and medical-surgical units within
their community hospitals," wherein "patients experiencing mental health crises often are left . . . pursuant
to Oregon civil commitment laws because of [defendant's] practices and conduct . . . , which has led to a
shortage of acute psychiatric beds." Id. ¶ 7. Plaintiffs assert that civilly committed patients are entitled to
"receive treatment calculated to lead to the end of their involuntary detention," id. ¶ 15 (citing Humphrey
v. Cady, 405 U.S. 504, 509 (1972)), i.e., they must be given "'a realistic opportunity to be cured or to
improve [the] mental condition' for which they were confined," id. ¶ 16 (quoting Ohlinger v. Watson, 652
F.2d 775, 779 (9th Cir. 1980)). Plaintiffs allege that although they are equipped only to provide acute,
short-term care, which necessarily requires a more restrictive patient environment, defendant's practices
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and conduct routinely leave civilly committed patients in plaintiffs' care for long periods of time. Id. ¶¶ 17-
19, 30-32. Plaintiffs assert "[t]here is no realistic way for [them] to realistically provide long-term treatment
in [acute care] environments." Id. ¶ 31.
Expounding on defendant's role, plaintiffs assert that defendant is responsible for providing
"civilly committed individuals with necessary treatment during their commitment in the most appropriate
and least restrictive setting possible to fulfill patients' constitutional rights." Id. ¶ 21. "By statute,
[defendant] must direct civilly committed persons 'to the facility best able to treat' them, or delegate to a
community mental health program director the responsibility for assignment of civilly committed persons
to a 'suitable' facility." Id. ¶¶ 22, 35 (emphases omitted) (quoting Or. Rev. Stat. § 426.060(2)(a), (d)).
Additionally, "[t]he director of OHA may assign or transfer the civilly committed person to any facility
'which, in the opinion of the director, will appropriately meet the mental health needs of the person under
civil commitment.'" Id. ¶ 23 (citing Or. Admin. R. 309-033-0290(1)(a)). Plaintiffs emphasize that although
"[t]he director of OHA may place the person in a community hospital . . . in doing so, the director of OHA
must 'consult' with the community hospital's admitting physician, and both must, together, 'determine
whether the best interests of a person under civil commitment are served by an admission to a community
hospital.'" Id. ¶ 23 (quoting Or. Admin. R. 309-033-0270(3)(a)).
In contrast to plaintiffs' facilities, plaintiffs allege that OSH, which is operated and
managed by OHA, contains
"multiple secure long-term residential treatment units which provide the long-term
treatment that many civilly committed patients need: fewer restrictions, more
independence, a calmer and more stable environment, more stable peer communities, less
patient turnover, more socialization and peer support, more group counseling, and more
training and education programs for patients to learn to care for their basic needs, maintain
employment, and sustain healthy relationships."
Id. ¶ 25. However, plaintiffs allege that "OHA has increasingly prioritized the admission of aid-and-assist
and [GEI] patients at OSH over civilly committed patients"—in part as a result of the permanent injunction
entered in Mink—and "has done virtually nothing to create additional capacity for civilly committed
patients to receive needed treatment in appropriate settings" or "to ensure that other entities authorized for
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civilly committed patients . . . can fill the gap left by the state." Id. ¶¶ 25-27. Plaintiffs assert that "[t]he
law prohibits OHA from prioritizing aid-and-assist and GEI patients over civilly committed patients if it
means giving civilly committed patients inadequate care," and in the Ninth Circuit, "when it comes to
providing constitutionally adequate treatment for involuntarily detained patients, '[l]ack of funds, staff or
facilities cannot justify the State's failure to provide [such persons] with [the] treatment necessary for
rehabilitation.'" Id. ¶ 28 (alterations in original) (quoting Ohlinger, 652 F.2d at 779).
Plaintiffs allege that defendant "has effectively outsourced its responsibilities to civilly
committed patients by leaving patients indefinitely in hospitals' emergency rooms, acute behavioral care
units, and medical-surgical units." Id. ¶ 29. Because "[h]ospitals are required by law, and as a condition
of licensure, to have an emergency department, or provide emergency services . . . [they] must accept all
patients who enter through their emergency rooms, regardless of whether they might later be civilly
committed or whether the hospital is approved to treat detained or civilly committed patients." Id. ¶ 33.
"Of the patients who are detained, some remain in emergency departments while others may be admitted
to the scarce number of inpatient psychiatric beds that exist in [p]laintiffs' hospitals, and still others may be
admitted to inpatient medical unit beds." Id. ¶ 34. Plaintiffs are prohibited "from discharging these patients
while they are psychiatrically unstable, lack a safe discharge plan, and are being detained under Oregon
civil commitment law," as well as from "discharg[ing] unstable patients in their emergency rooms[.]" Id.
Thus, despite their hospitals not being "equipped, staffed, or designed to house civilly committed
individuals for months at a time, let alone six months or more," plaintiffs nonetheless remain forced to do
so. Id. ¶¶ 36-38. And "[d]ue to the complex interplay between federal and state laws and regulations,
[p]laintiffs have no choice but to become certified for at least some" programs that entail the possibility of
treating civilly committed patients, in order "to avoid violating the law and jeopardizing [p]laintiffs'
licensure and funding." Id. ¶ 46.
Ultimately, plaintiffs assert that "OHA harms civilly committed patients by failing to meet
its duty to ensure patients in need of long-term treatment receive it, and deliberately leaving patients
indefinitely in community hospitals that are not equipped or staffed to provide such treatment." Id. ¶ 47.
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OHA's actions are also alleged to harm community hospitals because "[w]hen OHA abandons civilly
committed patients in community hospitals after the point at which they can no longer medically benefit
from receiving emergency and acute care," those hospitals are prevented "from being able to care for other
psychiatric patients in the community who are in need of emergency and acute care resources." Id. ¶ 50.
Plaintiffs further assert that OHA's conduct "deprives [them] of their property without due process of law
and effectuates a taking of [p]laintiffs' property[,]" thereby causing financial harms. Id. ¶ 52.
Based on these and some additional factual allegations, the SAC sets forth twelve claims
for relief, for violations of (1) civilly committed individuals' substantive due process rights; (2) civilly
committed individuals' procedural due process rights; (3) community hospitals' substantive due process
rights; (4) community hospitals' procedural due process rights; (5) community hospitals' rights under the
Takings Clause; (6) Title II of the Americans with Disabilities Act ("ADA"); (7) Section 504 of the
Rehabilitation Act; (8) Section 1557 of the Patient Protection and Affordable Care Act ("ACA");
(9) community hospitals' rights under Article I, Section 18 of the Oregon Constitution; (10) civilly
committed individuals' rights under Oregon Revised Statutes ("ORS") § 426.060; (11) civilly committed
individuals' rights under ORS § 426.150(1); and (12) civilly committed individuals' rights under ORS
§§ 659A.142(5)(a) and (6)(a). Id. ¶¶ 63-164. Plaintiffs seek in the SAC declaratory and injunctive relief,
and attorneys' fees and costs. Id. ¶¶ A-K.
On November 12, 2024, defendant filed a motion to dismiss the SAC. Def. 2d Mot. to
Dismiss ("Def. Mot."), ECF [128]. Plaintiffs responded in opposition on December 11, 2024. Pls. Resp.
Opp'n to Def. Mot. ("Pls. Resp."), ECF [140]. Defendant filed a reply in support of its motion on January
9, 2025. Def. Reply Supp. Mot. to Dismiss ("Def. Reply"), ECF [158].
3. Motions to Intervene
NAMI-Oregon and MHAP have both moved to intervene as proposed intervenor-plaintiffs.
See NAMI-Oregon Mot. to Intervene, ECF [121]; MHAP Mot. to Intervene, ECF [139].
4. Hearing
On August 27, 2025, the Court heard oral argument regarding defendant's motion to
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dismiss and NAMI-Oregon and MHAP's motions to intervene. Mins. of Proceedings of August 27, 2025,
ECF [268]. Following oral argument, the parties submitted supplemental briefing regarding updated
authority. See Pls. Notice of Suppl. Auth., ECF [269]; Def. Suppl. Br. Supp. Mot., ECF [270].
DISCUSSION
A. Defendant's Motion to Dismiss
Defendant argues that plaintiffs (1) lack third-party standing and (2) fail to state a claim as
to any of the twelve claims set forth in the SAC. Def. Mot. 1.
1. Third-Party Standing
To begin, the Court finds that plaintiffs lack third-party standing. As such, plaintiffs' first,
second, sixth, seventh, eighth, tenth, eleventh, and twelfth claims, all of which are asserted on behalf of
plaintiffs' civilly committed patients, are appropriately dismissed.
"Federal courts have traditionally been reluctant to grant third-party standing." Hong Kong
Supermarket v. Kizer, 830 F.2d 1078, 1081 (9th Cir. 1987); see Fleck & Assocs. v. Phoenix, City of, an
Arizona Mun. Corp., 471 F.3d 1100, 1105 n.3 (9th Cir. 2006) (noting that third-party standing is
"disfavored"). Accordingly, "[f]ederal courts must hesitate before resolving a controversy, even one within
their constitutional power to resolve, on the basis of the rights of third persons not parties to the litigation."
Singleton v. Wulff, 428 U.S. 106, 113 (1976). This is because (1) "courts should not adjudicate such rights
unnecessarily"; and (2) "third parties themselves usually will be the best proponents of their own rights,"
and "courts depend on effective advocacy, and therefore should prefer to construe legal rights only when
the most effective advocates of those rights are before them." Id. These principles have resulted in a
presumption against third-party standing. See Miller v. Albright, 523 U.S. 420, 445 (1998) (O'Connor, J.,
concurring). To overcome the presumption, a plaintiff must establish three criteria: (1) "'injury in fact'";
(2) "a close relation to the third party"; and (3) "some hindrance to the third party's ability to protect [their]
own interests." Powers v. Ohio, 499 U.S. 400, 410-11 (1991) (quoting Singleton, 428 U.S. at 112-16).
Defendant asserts that plaintiffs cannot establish either the second or third elements. Def. Mot. 8.
Here, plaintiffs have not established the close relationship element. "A litigant is granted
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third-party standing because the tribunal recognizes that her interests are aligned with those of the party
whose rights are at issue and that the litigant has a sufficiently close connection to that party to assert claims
on that party's behalf." Pony v. County of Los Angeles, 433 F.3d 1138, 1147-48 (9th Cir. 2006) (collecting
cases); see Harris v. Evans, 20 F.3d 1118, 1124-25 (11th Cir. 1994) ("Courts have repeatedly emphasized
that the key to third-party standing analysis is whether the interests of the litigant and the third party are
properly aligned, such that the litigant will adequately and vigorously assert those interests."). Close
relationships have been found, in certain situations, between healthcare providers and their patients. See
San Francisco A.I.D.S. Found. v. Trump, 786 F. Supp. 3d 1184, 1213 (N.D. Cal. 2025) (finding third-party
standing for healthcare providers to assert equal protection claim on behalf of transgender patients when
"many" of the providers "specifically [] serve transgender people"); see also Singleton, 428 U.S. at 115
(discussing doctor-patient relationship). However, a healthcare provider and their patients do not per se
have a close relationship; rather, the party seeking to establish third-party standing "must be able to
convince the court that it would be as effective a proponent of [the third parties'] rights as they would be."
Hong Kong Supermarket v. Kizer, 830 F.2d 1078, 1081 (9th Cir. 1987) (collecting cases). "Put simply, [a]
[p]laintiff must establish a '[m]utual interdependence of interests' between itself and the absent third
parties." Siskiyou Hosp., Inc. v. Cal. Dep't of Health Care Servs., No. 2:20-cv-00487-TLN-KJN, 2022 WL
118409, at *4 (E.D. Cal. Jan. 12, 2022) (quoting Hong Kong Supermarket, 830 F.2d at 1082).
Plaintiffs allege that their "interests as healthcare providers are closely aligned with the
interests of their patients[,]" with whom they "have inherently close, fiduciary, and confidential
relationships[.]" SAC ¶ 60. Plaintiffs emphasize that the relief they seek—"(1) for civilly committed
patients to have access to the most appropriate and least restrictive long-term treatment options once they
are ready for such care, and (2) for [p]laintiffs to be able to treat more civilly committed patients who enter
through their emergency rooms"—"will only benefit, and not harm," their patients. Id. ¶ 61. Put differently:
"[i]f [p]laintiffs are successful in this lawsuit, it will result in civilly committed patients having access to
the most appropriate and least restrictive long-term treatment options, while opening more beds for detained
and civilly committed patients in need of emergency and acute care." Id. Plaintiffs make clear that they
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"are not seeking any relief that will result in fewer placement options for civilly committed patients, the
creation of less-suitable placement options for [p]laintiffs' patients, or that will allow for the premature
discharge of [p]laintiffs' patients to inappropriate settings." Id. ¶ 62.
The Court finds that plaintiffs' allegations, even accepted as true, are not sufficient to
establish third-party standing. The Court is cognizant that this case is not clear-cut. Indeed, the Ninth
Circuit indicated that the third-party standing question in this case may be a "close[]" one, and that the
application of existing case law to the facts of this case—at least as alleged in the FAC—"is not obvious."
Legacy Health System, 2024 WL 2843034, at *1-2. Nonetheless, the Ninth Circuit's guidance leads the
Court to conclude that plaintiffs have not established third-party standing.
In its previous decision in this case, the Ninth Circuit counseled "that the 'close relation'
inquiry is nuanced and fact-dependent." Id. at *2. More specifically, the Ninth Circuit indicated that courts
must carefully consider the remedy sought by the party seeking to establish third-party standing and must
ask whether that remedy would benefit the group on whose behalf standing is sought. Id. (citing Viceroy
Gold Corp. v. Aubry, 75 F.3d 482 (9th Cir. 1996)). Expounding on this principle, the Ninth Circuit cited
Hong Kong Supermarket to explain that although "[v]endors generally have standing to assert claims on
behalf of their customers," third-party standing may not lie between a vendor and their customers if the
vendor seeks a remedy that would harm the customers. Id. This is because, on such facts, the vendor's and
customers' interests would not be "'inextricably' intertwined." Id. (quoting Hong Kong Supermarket, 830
F.2d at 1082).
Applying these principles to the case at hand, the Ninth Circuit recognized that although
"[d]octors often have been found to have standing to assert the rights of their patients," plaintiffs here "do[]
not seek to provide appropriate long-term treatment to civilly committed patients" themselves, but rather,
seek "an injunction requiring OHA to provide appropriate long-term care to these patients." Id. The Ninth
Circuit noted that "'the outcome' that [plaintiffs] 'seek[] on the face of [the FAC]' would benefit civilly
committed patients by ensuring they receive appropriate long-term treatment from OHA." Id. (citing Hong
Kong Supermarket, 830 F.2d at 1082). Nonetheless, "as [the FAC] acknowledges, bed space at OSH is
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limited, and OSH is under competing pressure from the injunction upheld by [the Ninth Circuit] in [Mink]."
Id. Thus, the Ninth Circuit reasoned that "[w]hether [plaintiffs'] interests are sufficiently aligned with the
interests of [their] civilly committed patients may depend on what outcome [plaintiffs] in fact [are] likely
to achieve in this litigation and whether the outcome would benefit the patients whom [plaintiffs] seek[] to
represent." Id. Because "[t]hese questions [were] not clearly answered in the [FAC] or the" briefing, the
Ninth Circuit remanded for reconsideration "in light of the third-party standing principles discussed[.]" Id.
Finally, the Ninth Circuit noted that plaintiffs' allegations regarding "how much civilly
committed patients are costing them and about the harms [the patients] inflict on their staff members" may
"be relevant to third-party standing, especially to the extent they may reflect a prioritization of the hospitals'
financial concerns or indicate a potential disjunction of interests if the remedy sought by [plaintiffs] . . .
proves unavailable," but that these allegations are not, alone, sufficient to defeat third-party standing. Id.
at *3. To the contrary, "parties with some degree of adversity may nonetheless be 'sufficiently aligned for
third-party standing purposes.'" Id.
Though the FAC and SAC are not identical, much of the two complaints are substantively
aligned. As was the case when the parties were before the Ninth Circuit, plaintiffs still "do[] not seek to
provide appropriate long-term treatment to civilly committed patients [themselves, but] rather, . . . an
injunction requiring OHA to provide appropriate long-term care to these patients," id. at *2, whether that
be by providing such care itself or by building out community placements for such care. Similarly, it
remains true that "'the outcome' that [plaintiffs] 'seek[] on the face of [their] complaint' would benefit civilly
committed patients by ensuring they receive appropriate long-term treatment from OHA." Id. The Court
must, however, focus on "what outcome [plaintiffs] in fact [are] likely to achieve in this litigation and
whether the outcome would benefit the patients whom [plaintiffs] seek[] to represent." Id. Just as these
questions were "not clearly answered" by the FAC, id., so too are they not by the SAC.
It is true that some of plaintiffs' allegations in the SAC regarding third-party standing are
new, however, none of those allegations address in sufficient detail the remedy that is likely to be achieved
by this litigation or whether it will benefit, and not harm, plaintiffs' patients. Plaintiffs allege that they have
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"inherently close, fiduciary, and confidential relationships" with their civilly committed patients, who
plaintiffs seek to ensure have access "to the most appropriate and least restrictive long-term treatment
options" so that plaintiffs may then "be able to treat more civilly committed patients who enter through
their emergency rooms." SAC ¶¶ 60-61. Plaintiffs state in a conclusory fashion that this requested relief
"will only benefit, not harm, [p]laintiffs' patients." Id. Finally, plaintiffs contend that they place greater
focus in the SAC on "OHA's failure to create, fund, and otherwise make available adequate bed space in
Oregon as a whole, at OSH, and in the community." Pls. Resp. 13 (emphasis in original) (citing SAC ¶¶ 26-
27, 29, 55, 61-62). These allegations are insufficient. Indeed, these allegations remain focused on shifting
long-term care of civilly committed patients out of plaintiffs' hands. In other words, this case does not
clearly mirror the cases in which a close relationship was found between healthcare providers and their
patients, whom those healthcare providers sought to continue to serve—in contrast to those cases, plaintiffs
here seek to have their patients be treated elsewhere, i.e., in simplest terms, for their patients to no longer
be their patients. Furthermore, without greater detail, plaintiffs' requested relief remains vague enough such
that it could still plausibly lead to a result that benefits plaintiffs only, e.g., by shifting the care for these
patients without establishing an adequate alternative. Finally, plaintiffs' "new" allegations were, at the least,
also alluded to in the FAC. See FAC ¶¶ 16, 21, 42, 66. Because the SAC does not address the outstanding
questions raised by the Ninth Circuit on appeal, the Court concludes that plaintiffs have not established a
close relationship with civilly committed patients, and thus, have not established third-party standing.
Plaintiffs' remaining arguments do not persuade the Court to the contrary. For example,
plaintiffs assert that third-party standing is not a matter of Article III standing analyzed under Rule 12(b)(1),
but rather, prudential standing analyzed under Rule 12(b)(6). Pls. Resp. 4 (citing Elizabeth Retail Props.
LLC v. KeyBank Nat'l Ass'n, 83 F. Supp. 3d 972, 985-86 (D. Or. 2015)). Plaintiffs argue that this means
the Court must construe their allegations as true, draw all reasonable inferences in their favor, and freely
give leave to amend when justice so requires. Id. This argument is a red herring. As defendant points out,
the court in Elizabeth Retail Properties—the sole case cited by plaintiffs on the subject—analyzed the
shareholder standing rule, not third-party standing, and in any event, because OHA does not here seek to
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introduce evidence beyond the SAC, see Def. Reply 2 n.2, "it makes no difference whether [the Court]
consider[s] the prudential standing argument under Rule 12(b)(1) or Rule 12(b)(6)," Nordisk Sys., Inc. v.
Sirius Comput. Sols., Inc., 156 F. Supp. 3d 1212, 1215 (D. Or. 2015). The Court's analysis is thus
unchanged. Likewise, plaintiffs argue that the third-party standing standard is a "liberal" one in the Ninth
Circuit, and that their allegations are thus sufficient. However, the Court cannot say that the third-party
standard is a "liberal" one where there is a presumption against third-party standing and where third-party
standing is "disfavored." See Miller, 523 U.S. at 445; Fleck & Assocs., 471 F.3d at 1105 n.3; Hong Kong
Supermarket, 830 F.2d at 1081.
Finally, plaintiffs argue that they need not "articulate specific relief" that "is 'likely' to solve
Oregon's longstanding behavioral health crisis," in part because the relief likely to be achieved in a given
case is "an issue that generally does not crystallize until late in litigation." Id. at 14-15 (quoting Def. Mot.
17). As such, plaintiffs assert they should, "[i]nsofar as a more specific request for equitable relief is
needed, [be] entitled to . . . develop their claims through discovery to support, based on facts learned in that
process, more specific requests for relief," and "[t]o the extent OHA speculates that [plaintiffs] may later
seek relief that might not benefit patients, this Court has broad discretion to craft relief to ensure patients
are protected." Id. at 16 (citing Porter v. Warner Holding Co., 328 U.S. 395, 399 (1946); Fed. R. Civ. P.
54). However, the issue of standing is generally a "threshold question" that "determin[es] the power of the
court to entertain the suit." Warth v. Seldin, 422 U.S. 490, 498 (1975). Here, the Ninth Circuit's guidance
indicates that the issue of plaintiffs' third-party standing may only be determined upon a sufficient
articulation of the remedy plaintiffs seek and how that remedy will benefit, and not harm, plaintiffs' civilly
committed patients. See Legacy Health System, 2024 WL 2843034, at *2. For this reason, plaintiffs' final
argument fails.
Having found that plaintiffs have not established the close relationship element, the Court
need not, and therefore does not, reach the final element of the third-party standing analysis. Likewise,
having found that plaintiffs have not established third-party standing to sue on behalf of their civilly
committed patients, the Court need not, and therefore does not, reach the merits of defendant's arguments
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that all of plaintiffs' claims brought on behalf of civilly committed patients should be dismissed for failure
to state a claim. Thus, plaintiffs' claims brought on behalf of their civilly committed patients, which include
plaintiffs' first, second, sixth, seventh, eighth, tenth, eleventh, and twelfth claims for relief, are dismissed.
2. Due Process
Defendant next argues that plaintiffs' third and fourth claims fail because plaintiffs do not
plausibly allege substantive or procedural due process violations on behalf of themselves or other
community hospitals. Def. Mot. 21. The Court addresses plaintiffs' substantive and procedural due process
claims in turn.
a. Substantive Due Process
Plaintiffs have adequately alleged a substantive due process claim. The substantive due
process clause "forbids the government from depriving a person of life, liberty, or property in such a way
that 'shocks the conscience' or 'interferes with rights implicit in the concept of ordered liberty.'" Nunez v.
City of Los Angeles, 147 F.3d 867, 871 (9th Cir. 1998) (quoting United States v. Salerno, 481 U.S. 739,
746 (1987)); see Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (internal quotation marks and
citations omitted) ("[T]he Due Process Clause specifically protects those fundamental rights and liberties
which are, objectively, deeply rooted in this Nation's history and tradition, and implicit in the concept of
ordered liberty, such that neither liberty nor justice would exist if they were sacrificed"). "To establish a
substantive due process claim, a plaintiff must, as a threshold matter, show a government deprivation of
life, liberty, or property." Nunez, 147 F.3d at 871. The plaintiff must then show that "the alleged
deprivation . . . 'shock[s] the conscience and offend[s] the community's sense of fair play and decency.'"
Sylvia Landfield Trust v. City of Los Angeles, 729 F.3d 1189, 1195 (9th Cir. 2013) (quoting Marsh v. County
of San Diego, 680 F.3d 1148, 1154 (9th Cir. 2012)). When analyzing a substantive due process claim,
courts must "focus on the allegations in the complaint to determine how [the plaintiff] describes the
constitutional right at stake[.]" Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992).
As an initial matter, plaintiffs have adequately alleged the deprivation of a protected
property interest. Plaintiffs' substantive due process claim asserts that "[t]he right to exclude others from
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an owner's property and to use the property as the owner sees fit is [a] fundamental right." SAC ¶ 80 (citing
Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 539 (2005)). Though defendant argues that a property right
cannot serve as the basis for a substantive due process claim, the sole citation defendant provides in support
of this assertion is to the syllabus in Glucksberg, which is not "part of the opinion of the Court but . . .
prepared by the Reporter of Decisions for the convenience of the reader," and which supports the
proposition that substantive due process protects fundamental liberty interests but does not appear to
address the issue of whether a property interest could satisfy the substantive due process test. 521 U.S. at
702 (citing United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337 (1906)); see Def. Mot. 18;
and see Def. Reply 15. Defendant does not address the case law cited by plaintiffs to the contrary. Based
on the controlling law cited herein, which makes clear that a property interest may serve as the basis of a
substantive due process claim, see Nunez, 147 F.3d at 871; see also Glucksberg, 521 U.S. at 721, the Court
concludes that plaintiffs have adequately alleged the deprivation of a protected property interest.
Plaintiffs have also satisfied the second step of the substantive due process analysis.
Plaintiffs allege in the SAC that defendant "deliberately leav[es] patients indefinitely in community
hospitals that are not equipped or staffed to provide such treatment," which "leads to an unconscionable
situation where individuals are denied the care that justifies their commitment in the first place and that
they are constitutionally entitled to receive." SAC ¶ 47. Plaintiffs allege that defendant "knows that it is
harming civilly committed patients but continues to do it anyways." Id. ¶ 48. Plaintiffs further allege that
"[d]espite knowing of its unlawful practices for years, [defendant] continues to engage in these practices,"
and in fact "benefits by passing the costs of Oregon's civil commitment system to private entities, enabling
[defendant] to avoid having to provide additional funding and resources to this most vulnerable population."
Id. ¶ 53. Despite this, defendant allegedly "has failed to provide a solution for the patients for whom it is
responsible." Id. ¶ 55. Plaintiffs allege that defendant "has indifferently indicated no serious intent or
interest in changing its ways," and that "OHA officials apathetically shrug their shoulders and say that they
lack funding to address the problem, that [p]laintiffs will simply have to keep forfeiting their property,
and . . . that civilly committed patients will simply have to continue foregoing needed long-term treatment,
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despite being entitled to it." Id. ¶ 58. Taken as true, these allegations are sufficient to allow a reasonable
factfinder to determine that the alleged deprivation "shock[s] the conscience and offend[s] the community's
sense of fair play and decency." Sylvia Landfield Trust, 729 F.3d at 1195. As such, plaintiffs have
adequately alleged a substantive due process claim.
Defendant's remaining arguments do not alter the Court's analysis. Defendant argues that
plaintiffs' substantive due process claim fails because it "is subsumed by [plaintiffs'] takings claim," and
because plaintiffs have not alleged facts that show defendant "infringed on [p]laintiffs' fundamental liberty
interests, let alone in a manner that shocks the conscience." Def. Mot. 21. Generally, "if a constitutional
claim is covered by a specific constitutional provision, . . . the claim must be analyzed under the standard
appropriate as to that specific provision, not under the rubric of substantive due process." United States v.
Lanier, 520 U.S. 259, 272 n.7 (1997). However, a substantive due process claim may still lie where a taking
results from conduct "that is 'so arbitrary or irrational that it runs afoul of the Due Process Clause,'" Shanks
v. Dressel, 540 F.3d 1082, 1087 (9th Cir. 2008) (quoting Lingle, 544 U.S. at 542; and citing Crown Point
Dev., Inc. v. City of Sun Valley, 506 F.3d 851, 855 (9th Cir. 2007)), such as where the alleged conduct was
deliberately indifferent or where the alleged deprivation "'shocks the conscience,'" Graham v. Connor, 490
U.S. 386, 393 (1989) (quoting Johnson v. Glick, 481 F.2d 1028, 1032-33 (1973)). Because the Court has
already found that plaintiffs have adequately alleged the deprivation of a fundamental property interest that
a factfinder could plausibly conclude shocks the conscience, defendant's arguments fail.
The Court is also not persuaded by defendant's argument that "[p]laintiffs cannot establish
a constitutionally protected liberty interest when they are voluntarily seeking to provide services to civilly
committed patients" and "have voluntarily sought certification to treat" those patients. Def. Mot. 22. As
plaintiffs point out, much of plaintiffs' argument is that their treatment of civilly committed patients is not
voluntary. For example, plaintiffs allege that "[d]ue to the complex interplay between federal and state
laws and regulations, [they] have no choice but to become certified for at least some of the program times
[defendant identifies] to avoid violating the law and jeopardizing [p]laintiffs' licensure and funding." SAC
¶ 46. Because defendant "requires hospitals to be approved and certified in order to provide 'care and
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treatment services for persons under civil commitment or for persons in custody,'" plaintiffs assert that their
"certifications are mandated by [defendant's] regulations, not sought voluntarily." Id. Indeed, plaintiffs
allege that if they "failed to become certified, [they] inevitably would be forced to, among other things,
provide treatment to civilly committed patients without certification to do so." Id. Similarly, plaintiffs
argue that even if their pursuit of certain certifications could be construed as voluntary, defendant far
exceeds the scope of any such voluntariness by leaving civilly committed patients in plaintiffs' care "long
past any understanding or agreement regarding th[at] care." Pls. Resp. 27; see SAC ¶¶ 55-56, 58, 90.
Plaintiffs' allegations are sufficient to refute defendant's arguments regarding voluntariness.
b. Procedural Due Process
Plaintiffs have also adequately stated a procedural due process claim. To state a procedural
due process claim, a plaintiff must allege "(1) a deprivation of a constitutionally protected liberty or
property interest, and (2) a denial of adequate procedural protections." Hufford v. McEnaney, 249 F.3d
1142, 1150 (9th Cir. 2001) (quoting Brewster v. Bd. of Educ. of Lynwood Unified Sch. Dist., 149 F.3d 971,
982 (9th Cir. 1998)). "The essence of procedural due process is that 'individuals whose property interests
are at stake are entitled to notice and an opportunity to be heard.'" Franceschi v. Yee, 887 F.3d 927, 935
(9th Cir. 2018) (quoting Dusenbery v. United States, 534 U.S. 161, 167 (2002)). Importantly, "because due
process is a flexible concept, '[p]recisely what procedures the Due Process Clause requires in any given
case is a function of context.'" Id. (alteration in original) (quoting Brewster, 149 F.3d at 983; and citing
Morrissey v. Brewer, 408 U.S. 471, 481 (1972)).
As stated above, plaintiffs have adequately alleged a protected property interest. The issue
remaining is whether plaintiffs have adequately alleged a denial of adequate procedural protections. To
determine whether a certain procedure satisfies due process requirements in a particular context, courts use
"the three-part balancing test described in Mathews v. Eldridge, 424 U.S. 319, 335 (1976)":
"First, the private interest that will be affected by the official action; second, the risk of an
erroneous deprivation of such interest through the procedures used, and the probable value,
if any, of additional or substitute procedural safeguards; and finally, the Government's
interest, including the function involved and the fiscal and administrative burdens that the
additional or substitute procedural requirement would entail."
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Hufford, 249 F.3d at 1150-51 (quoting Mathews, 424 U.S. at 334).
Plaintiffs have adequately alleged a denial of adequate procedural protections. With regard
to their procedural due process claim, plaintiffs allege that "[t]here is no adequate state law procedure for
community hospitals to contest being forced to house civilly committed individuals indefinitely during their
180-day commitment" because "[a]lthough Oregon civil commitment procedure involves a process by
which OHA or its delegee consults with the admitting physician of a hospital to 'determine whether the best
interests of a committed person are served by an admission to [that] community hospital,' that procedure is
not being followed." SAC ¶ 90 (citing OAR 309-033-0270(3)(a)). Rather than affording plaintiffs "a
meaningful opportunity to be heard regarding whether a civilly committed patient should be committed to
[p]laintiffs' community hospitals for long-term treatment lasting up to 180 days," defendant "is simply
leaving patients at [p]laintiffs' hospitals without any meaningful process." Id. "Nor is there a remedy
available for community hospitals to seek compensation from OHA or their contracted Coordinated Care
Organizations for most of [the] costs associated with" housing and caring for civilly committed patients.
Id. "As a result, an already difficult workforce shortage has become a crisis," and "[t]he strains on
[p]laintiffs' care providers and resources are not sustainable, [which] present[s] a risk of loss of critical
mental health services to members of the community who are in crisis." Id. Because "[p]laintiffs lack an
adequate remedy at law," they assert that declaratory and injunctive relief are appropriate and necessary to
stop the violation of community hospitals' procedural due process rights. Id. ¶ 86.
Plaintiffs' allegations are sufficient to allow the Court to conclude that plaintiffs are being
denied adequate procedural protections. With regard to the first Mathews factor, again, a property "owner's
right to exclude others from entering and using [their] property [is] perhaps the most fundamental of all
property interests." Lingle, 544 U.S. at 539. This factor favors plaintiffs. The second Mathews factor also
favors plaintiffs. Accepting plaintiffs' allegations as true, there is a risk of erroneous deprivation: by not
adhering to the requirements of OAR 309-033-0270(3)(a), civilly committed patients remain in plaintiffs'
care without regard to whether any determination has been made as to whether continued admission is in
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"the best interests of [the] committed person[s]." Similarly, these allegations indicate that the value of
additional or substitute procedural safeguards is probable. Finally, the third factor, the governmental
interest in the function involved and the potential fiscal and administrative burdens that additional or
substitute procedural safeguards would entail, weighs in favor of defendant. There can be no doubt that the
function involved here, the provision of care for civilly committed patients, is an important one, and that
additional or substitute procedural safeguards may entail substantial efforts by defendant. On balance,
however, the gravity of the private interest that is affected and the general lack of procedural safeguards
providing either notice or an opportunity to be heard—either pre- or post-deprivation—together lead the
Court to conclude that plaintiffs have adequately alleged a procedural due process claim. See Brewster,
149 F.3d at 985 (emphasizing notice and opportunity to be heard in discussing adequacy of both pre- and
post-deprivation procedures).
Defendant nonetheless argues that plaintiffs have failed to allege any "denial of adequate
procedural protections" because "[p]laintiffs admit there is an administrative procedure that would apply to
address [their] alleged harms," and plaintiffs have not alleged that they have "tried to engage in this
process."3 Def. Mot. 22-23 (citing SAC ¶ 90). However, this argument is not persuasive where that process
(1) is not being followed, and thus, practically speaking, can provide no recourse to plaintiffs; and (2) is not
one that plaintiffs are required to engage in. To the latter point, it is noteworthy that the plain language of
OAR 309-033-0270(3)(a) does not put the onus on community hospitals to determine appropriate
placements for civilly committed patients. In this context, plaintiffs have sufficiently alleged the denial of
adequate procedural protections.
For all these reasons, taking plaintiffs' allegations as true, as the Court must, plaintiffs have
adequately alleged a procedural due process claim.
3 Defendant also again argues that plaintiffs have not alleged "any deprivation of a constitutionally protected liberty
or property interest." Def. Mot. 22 (citing Franceschi, 887 F.3d at 935). However, because the Court has already
concluded that plaintiffs have adequately alleged the deprivation of a protected property interest, the Court does not
address this argument here.
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3. Takings
Defendant next argues that plaintiffs' fifth and ninth claims fail because (1) plaintiffs
cannot establish a taking where the SAC shows that plaintiffs have voluntarily chosen to obtain the
certifications that result in their admission and treatment of civilly committed patients; (2) plaintiffs fail to
state a takings claim because although they allege a physical taking, they have not "allege[d] any direct
invasion or appropriation of physical property"; and (3) "the only remedy [p]laintiffs seek," i.e., declaratory
and injunctive relief, "is not available in a takings claim." Def. Mot. 23-24. The Court addresses
defendant's third argument first.
"Equitable relief is not available to enjoin an alleged taking . . . when a suit for
compensation can be brought against the sovereign subsequent to the taking." Ruckelshaus v. Monsanto
Co., 467 U.S. 986, 1016 (1984) (footnote omitted); see Seven Up Pete Venture v. Schweitzer, 523 F.3d 948,
956 (9th Cir. 2008) ("From a remedial perspective . . . 'just compensation' is on all fours with traditional
monetary damages, which are the quintessential form of retrospective relief."). "As long as an adequate
provision for obtaining just compensation exists, there is no basis to enjoin government action effecting a
taking." Knick v. Township of Scott, Pa., 588 U.S. 180, 201 (2019). And indeed, "the federal and nearly
all state governments provide just compensation remedies to property owners who have suffered a taking,"
and thus, "equitable relief is generally unavailable." Id. Persuasive authority indicates the same. See, e.g.,
Or. Firearms Fed'n v. Kotek, 682 F. Supp. 3d 874, 942 (D. Or. 2023) ("[E]ven if [the plaintiffs] had viable
takings claims, injunctive relief is not generally a proper remedy for a takings claim, which can be remedied
with damages."); Atwood v. Strickler, No. 3:19-cv-01699-IM, 2020 WL 3549662, at *5 (D. Or. June 29,
2020) (quoting Knick, 588 U.S. at 205) ("'As long as just compensation remedies are available . . . injunctive
relief will be foreclosed.'"); Los Molinos Mut. Water Co. v. Ekdahl, 695 F. Supp. 3d 1174, 1189 (E.D. Cal.
2023) ("[T]he injunctive relief sought by [the plaintiffs]—even if alleged to be 'prospective'—is not
consistent with the remedies available in connection with their claim . . . . [The plaintiffs] have not alleged
that they are prevented from seeking just compensation for an alleged future taking of their [property] rights
in state court," and "[b]ecause there are no allegations indicating that [the] plaintiffs will be prevented from
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bringing suit to recover just compensation remedies for any alleged future takings, [they] cannot seek
injunctive or declaratory relief for the alleged violations of the takings clause."); Pakdel v. City & County
of San Francisco, 636 F. Supp. 3d 1065, 1077-78 (noting that "federal courts have consistently denied
equitable relief for takings claims" and dismissing the plaintiffs' claims for declaratory and injunctive relief
where the "[p]laintiffs d[id] not aver monetary damages would be inadequate to make them whole").
This plethora of authority cautions that plaintiffs' takings claims must be dismissed.
Plaintiffs offer no concrete reason why they cannot seek just compensation for the alleged takings they
suffer. Like the plaintiffs in Los Molinos Mutual Water Company, plaintiffs here have not alleged that they
are prevented from seeking just compensation. See 695 F. Supp. 3d at 1189-90. And like the plaintiffs in
Pakdel, plaintiffs here have not "aver[red that] monetary damages would be inadequate to make them
whole." 636 F. Supp. 3d at 1077-78. As such, the default rule that equitable and injunctive relief are not
available with respect to a takings claim remains applicable, and plaintiffs' fifth and ninth claims fail as a
matter of law.
Plaintiffs largely do not address the abundance of case law addressed herein. Instead,
plaintiffs assert that the procedures for acquiring compensation for the takings at issue in this case are
inadequate because "[s]eeking just compensation for [defendant's] repeated deprivations of [p]laintiffs'
property would require [p]laintiffs to repeatedly litigate a multiplicity of suits involving the same and
similar repeated deprivations of property as long as OHA's practices continue indefinitely." SAC ¶ 101. In
support of this assertion, plaintiffs argue that two other cases, an Eighth Circuit case and a case from this
district, indicate that "declaratory and injunctive relief may be appropriate where the available state
procedures for acquiring compensation for each taking is inadequate." Pls. Resp. 29 (citing Pharm. Rsch.
& Mfrs. of Am. v. Stolfi ("Stolfi"), 724 F. Supp. 3d 1174, 1188-91 (D. Or. 2024), rev'd & remanded on other
grounds, 153 F.4th 795 (9th Cir. 2025) ("Stolfi II"); Pharm. Rsch. & Mfrs. of Am. v. Williams ("Williams"),
64 F.4th 932, 945 (8th Cir. 2023)).
In Stolfi, the court considered whether a plaintiff could seek equitable relief for a regulatory
takings claim. 724 F. Supp. 3d at 1188-91. Specifically, the plaintiff alleged that Oregon's Prescription
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Drug Price Transparency Act violated the First Amendment by requiring that pharmaceutical manufacturers
publicly disclose pricing and product information online, which the plaintiff alleged amounted to a
mandated disclosure of its trade secret. Id. at 1183-84. The court concluded that the plaintiff was entitled
to seek equitable relief because the available procedure for receiving just compensation was not adequate.
Id. at 1190-91. More specifically, the court concluded that following the available procedures would
require the plaintiff to file "a multiplicity of suits involving the same underlying takings," which would be
"'incapable of compensating the manufacturers for the repetitive, future takings that w[ould] occur.'" Id. at
1190-91 (quoting Williams, 64 F.4th at 945). The court thus granted summary judgment in favor of the
plaintiff. Id. at 1190-91, 1202. On appeal, the Ninth Circuit reversed and remanded. Stolfi II, 153 F.4th at
805. The Ninth Circuit did not specifically address the district court's statements regarding the availability
of equitable relief with respect to a takings claim, or whether this question may differ between a physical
and regulatory takings claim. However, the Ninth Circuit's analysis centered entirely on the three-part
regulatory taking test set forth in Penn Central Transportation Company v. City of New York, 438 U.S. 104
(1978), which is not applicable to physical takings claims. See Stolfi II, 153 F.4th at 834-40. In this context,
Stolfi is simply of little aid here, where plaintiffs assert a physical, not regulatory, takings claim.
For all these reasons, the Court is not persuaded that it should ignore the great weight of
authority precluding the takings claim where monetary damages are available, as they appear to be here.
Because plaintiffs' takings claims fail for this reason, the Court need not reach the parties' remaining
arguments, including whether plaintiffs' voluntary certifications render meritless their takings claims and
whether plaintiffs have adequately "allege[d] a[] direct invasion or appropriation of physical property."
Def. Mot. 23-24.
B. NAMI-Oregon and MHAP's Motions to Intervene
Both NAMI-Oregon and MHAP move as interventor-plaintiffs to assert third-party claims
on behalf of civilly committed patients. Because the third-party claims are dismissed, the motions to
intervene are denied as moot.
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CONCLUSION
For the reasons discussed herein, defendant's Motion to Dismiss, ECF [128], is GRANTED
in part and DENIED in part. Plaintiffs' claims brought on behalf of civilly committed patients (claims one,
two, six, seven, eight, ten, eleven, and twelve), and plaintiffs' takings claims (claims five and nine), are
DISMISSED without prejudice and with leave to amend. Plaintiffs' remaining claims three and four, the
substantive and procedural due process claims, survive. Though the Court is skeptical that plaintiffs may
be able to set forth additional allegations sufficient to establish third-party standing or their takings claims,
in an abundance of caution, the Court grants plaintiffs thirty (30) days from the date of this Opinion and
Order to file a third amended complaint curing the deficiencies outlined herein. See Eminence Cap., LLC
v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) ("Dismissal with prejudice and without leave to amend
is not appropriate unless it is clear on de novo review that the complaint could not be saved by
amendment."). Based on the dismissal of plaintiffs' third-party claims, proposed-intervenors NAMI-
Oregon and MHAP's motions to intervene, ECF [121] and [139], are DENIED as moot. NAMI-Oregon
and MHAP are both granted leave to renew their motions to intervene in the event that any third amended
complaint adequately alleges third-party standing.
IT IS SO ORDERED.
DATED this 9th day of December, 2025.
______________________
Adrienne Nelson
United States District Judge
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