MERLE JANES, MD, a physician licensed in the State of Washington; v. Peter J. Harris;

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MERLE JANES, MD, a physician licensed
in the State of Washington; et al.,
Plaintiffs - Appellants,
v.
PETER J. HARRIS; et al.,
Defendants - Appellees.
No. 09-35602
D.C. No. 2:08-cv-00200-EFS
MEMORANDUM*
MERLE JANES, MD, a physician licensed
in the State of Washington; et al.,
Plaintiffs - Appellees,
v.
PETER J. HARRIS; et al.,
Defendants - Appellants.
No. 09-35640
D.C. No. 2:08-cv-00200-EFS
Appeals from the United States District Court
for the Eastern District of Washington
Edward F. Shea, District Judge, Presiding
FILED
JUL 26 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Argued and Submitted July 12, 2010
Seattle, Washington
Before: REINHARDT, GRABER, and PAEZ, Circuit Judges.
Plaintiffs appeal the grant of summary judgment to Defendants on the
ground that Plaintiffs lacked Article III standing. Defendants cross-appeal. We
have jurisdiction under 28 U.S.C. § 1219. We affirm the grant of summary
judgment and dismiss Defendants’ cross-appeal as moot.
1. Plaintiffs invoked federal court jurisdiction and, therefore, bore the burden
of establishing Article III standing. Lujan v. Defenders of Wildlife, 504 U.S. 555,
561 (1992). To establish Article III standing, Plaintiffs were required to show that
Defendants’ allegedly unlawful conduct caused them to suffer an actual or
imminent injury—not a hypothetical, conjectural, or abstract injury—that a
favorable decision would redress. See Elk Grove Unified Sch. Dist. v. Newdow,
542 U.S. 1, 12 (2004). Furthermore, in response to Defendants’ summary
judgment motion, Plaintiffs could no longer rest on the allegations contained in
their complaint, but were required to set forth by affidavit or other admissible
evidence specific facts showing that there is a genuine issue for trial. See Fed. R.
Civ. P. 56(e); Lujan, 504 U.S. at 561.

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Plaintiffs allege an injury based on the Agency of Medical Directors Group’s
publication of the Interagency Guideline on Opioid Dosing for Chronic Non-
cancer Pain (“Dosing Guidelines”). Plaintiffs, however, have failed to present any
evidence that the Dosing Guidelines restrict the authority of doctors to prescribe, or
the ability of chronic pain patients to obtain, opioids in the manner alleged.
Indeed, the Dosing Guidelines state that they are “advisory.” Because Plaintiffs
allege an injury that is no more than conjectural or hypothetical, they have failed to
establish an injury in fact and, therefore, lack Article III standing to challenge the
Dosing Guidelines. See Lujan, 504 U.S. at 560.
2. Next, Plaintiffs claim that the Medical Quality Assurance Commission
(“Medical Commission”) impermissibly enforces the advisory Dosing Guidelines
and threatened discipline against Dr. Janes for prescribing opioids. We do not,
however, reach the question of whether Plaintiffs have standing to challenge the
Medical Commissions’ alleged enforcement of the Dosing Guidelines because we
conclude that this claim is not ripe. Like standing, ripeness can be raised at any
time and is not waivable. See Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 58
n.18 (1993).
To date, Dr. Janes has received at most a threat of formal investigation and a
suggestion of sanction, but no formal administrative action has been taken. The

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parties do not dispute that a formal Medical Commission investigation includes
many intervening steps, including an opportunity for an evidentiary hearing, which
must occur before a disciplinary sanction, such as a license suspension, can be
imposed. See Wash. Rev. Code § 18.130 et seq. This administrative process has
not begun let alone concluded; therefore, any challenge to the actions taken by the
Medical Commission with respect to Dr. Janes is not ripe. See Loma Linda Univ.
Med. Ctr. v. Leavitt, 492 F.3d 1065, 1074 (9th Cir. 2007). Finally, evidence that
the Medical Commission suspended another Washington doctor’s license for
failure to keep adequate records does not establish impermissible enforcement of
the Dosing Guidelines.
3. In light of our disposition of Plaintiffs’ appeal, Defendants’ cross-appeal is
moot. We therefore dismiss it.
No. 09-35602: AFFIRMED
No. 09-35640: DISMISSED

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