Marla Renea Smith v. Kay Ivey
20-14765
| 11th Cir. | Jul 21, 2021Background
- Plaintiff Marla R. Smith (by next friend Jasmine Smith) is profoundly mentally disabled and relies on her sister for care.
- Alabama’s 2017 Emergency Operations Plan included an ADPH Annex with ventilator-triage guidance stating persons with “severe or profound mental retardation” are unlikely candidates for ventilator support.
- The Annex was removed from Alabama’s Crisis Standards of Care in 2019 but remained briefly available online.
- In March 2020 HHS Office for Civil Rights investigated; Alabama agreed to remove the offending criteria from the internet and publicly declare the criteria no longer in effect, and OCR closed its investigation.
- Smith sued state officials seeking declaratory and injunctive relief; the district court dismissed for lack of Article III standing.
- The Eleventh Circuit affirmed, concluding Smith failed to show a substantial likelihood of future injury traceable to the Annex.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Article III standing to seek prospective relief | Smith argued the Annex remains legally effective (not formally repealed), so she faces a substantial, imminent risk of discrimination in ventilator allocation | State argued the Annex was renounced, not a binding rule under AAPA, and was never filed to have force of law under the Emergency Management Act, so Smith lacks a realistic risk of future injury | Dismissal affirmed for lack of standing: no substantial likelihood of future injury |
| Whether Annex is a binding "rule" under Alabama Administrative Procedure Act | Smith: Annex fits AAPA definition of "rule" and thus must be formally repealed under notice-and-comment procedures | State: Annex is nonbinding guidance (template/recommendation), so AAPA rulemaking does not apply | Court: Annex is not a binding legislative rule; AAPA procedures not required |
| Whether Annex had force of law under Alabama Emergency Management Act | Smith: Annex promulgated under the Act and thus remains effective unless formally revoked | State: To have force of law under the Act a copy must be filed with Secretary of State; Annex was never filed | Court: Annex was not filed with Secretary of State and thus lacks statutory force; state’s renunciation suffices |
Key Cases Cited
- Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (U.S. 2016) (Article III injury-in-fact requirements)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (U.S. 1992) (standing standards for prospective relief)
- Malowney v. Fed. Collection Deposit Grp., 193 F.3d 1342 (11th Cir. 1999) (substantial likelihood requirement for future injury)
- Taylor v. Polhill, 964 F.3d 975 (11th Cir. 2020) (standard of review for standing dismissal)
- Stalley ex rel. United States v. Orlando Reg'l Healthcare Sys., Inc., 524 F.3d 1229 (11th Cir. 2008) (treatment of factual attacks on subject-matter jurisdiction)
- Lawrence v. Dunbar, 919 F.2d 1525 (11th Cir. 1990) (no presumptive truthfulness in factual jurisdictional attacks)
- Families Concerned About Nerve Gas Incineration v. Ala. Dep't of Envtl. Mgmt., 826 So.2d 857 (Ala. Civ. App. 2002) (agency guidance not a binding rule when not establishing a binding norm)
- Ala. Dep't of Envtl. Mgmt. v. Coosa River Basin Initiative, Inc., 826 So.2d 111 (Ala. 2002) (adopting Families reasoning on binding norms)