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U.S. District Court Civ. No. 04-2126; United States District Court (DNJ); opinion by Bassler, U.S.D.J.; filed June 8, 2004. DDS No. 29-7-7084 Plaintiff’s motion to enjoin enforcement of the NJHCCIA, which provides for the maintenance and disclosure of medical-malpractice payment information, is denied since it does not violate any federal right to privacy provided by the Health Care Quality Improvement Act and does not violate the federal constitutional right to contact since it seeks to disclose information legally obtained by the State, any contractual impairment is not substantial, and there is a significant public purpose behind the Act. Plaintiff Medical Society of New Jersey (MSNJ) moves for an order enjoining Mary Lou Mottola, executive director of the Medical Practitioner Review Panel, and Reni Erdos, director of the Division of Consumer Affairs, from publishing information regarding settlements of malpractice claims entered into by New Jersey doctors. Specifically, it seeks to enjoin them from enforcing the New Jersey Health Care Consumer Information Act, N.J.S.A. 45:9-22.21 et seq. (NJHCCIA), which is scheduled to become effective June 23, 2004, and from complying with an order of Bergen County Superior Court Assignment Judge Sybil R. Moses, which ordered them to disclose to North Jersey Media Group, Inc., d/b/a The Record, certain information in medical-malpractice payment notices submitted to the state pursuant to N.J.S.A. 17:30D-17. The Health Care Quality Improvement Act of 1986 (HCQIA), 42 U.S.C. � 11101, et seq., requires that “[e]ach entity (including an insurance company) which makes payment under a policy of insurance, self-insurance, or otherwise in settlement (or partial settlement) of, or in satisfaction of a judgment in, a medical malpractice action or claim shall report . . . information respecting the payment and circumstances thereof.” � 11131(a). That information includes: “(1) the name of any physician or licensed health care practitioner for whose benefit the payment is made, (2) the amount of the payment, (3) the name of any hospital with which the physician or practitioner is affiliated or associated, (4) . . . the acts or omissions and injuries or illnesses upon which the action or claim was based, and (5) such other information as the Secretary determines is required . . . .” � 11131(b). The regulations promulgated pursuant to the HCQIA established the National Practitioner Data Bank to collect the information required by the HCQIA. Hospitals must request information from the data bank with respect to each physician or health-care practitioner who applies for staff membership or clinical privileges. The data bank also makes the information available to state licensing boards and other health-care entities (including health maintenance organizations) that have or may have a relationship with the physician or practitioner. Title 42 U.S.C. � 11137 provides that the information collected pursuant to the HCQIA is confidential and shall not be disclosed “(other than to the physician or practitioner involved) except with respect to professional review activity . . . or in accordance with regulations of the Secretary promulgated pursuant to subsection (a) of this section. Nothing in this subsection shall prevent the disclosure of such information by a party which is otherwise authorized, under applicable State law, to make such disclosure.” � 11137(b)(1). Thus, unless otherwise provided by state law, all information collected by the data bank and “reported under this subchapter” is presumed confidential and is released only as specifically mandated by the HCQIA. The Medical Practitioner Review Panel is a component of the Division of Consumer Affairs in the Department of Law and Public Safety of New Jersey. Three years before Congress passed the HCQIA, N.J.S.A. 17:30-D17 was enacted. It created reporting requirements similar to those in what would become the HCQIA. It originally required notice of malpractice settlements of more than $25,000 to be sent to the State Board of Medical Examiners. In 1989, N.J.S.A. 17:30D-17 was amended and other notable changes were made to the statutory framework. The panel was created pursuant to 45:9-19.8. It is required to receive notices from health-care facilities or health maintenance organizations detailing actions they may take against practitioners and notices “from an insurer or insurance association or a practitioner . . . regarding a medical malpractice claim settlement, judgment or arbitration award . . . .” N.J.S.A. 45:9-19.9(a)(1)-(2). The amendments also changed the reporting requirements in 17:30D-17 to require insurance companies and individual practitioners to report to the panel any malpractice claim settlement, judgment or award. New Jersey law requires that the panel maintain records of all such notices. Currently, these records are protected by privacy provisions, 45:9-19.3 and -19.10(c). The parties agree that the HCQIA requires insurers to provide to the federal government the same information that 17:30D-17 requires that they submit to the state. However, their interpretations of the interplay between the two statutory frameworks is significantly different. Plaintiff contends that the HCQIA amounts to a federal protection of privacy that supersedes rights afforded under the state statute, while defendants and The Record argue that the two statutes set forth obligations that are separate and distinct. Plaintiff also challenges the constitutionality of the NJHCCIA. It requires the Division of Consumer Affairs to create profiles for all licensed physicians and podiatrists in New Jersey and to make them available to the public. The profiles will include, inter alia, each practitioner’s medical school education and post-graduate medical training, the year of initial licensure, office practice sites, and information concerning criminal convictions, board disciplinary actions, and hospital privilege actions. The NJHCCIA also provides for the disclosure of medical-malpractice judgments and settlements as part of each profile. It mandates the publication of all medical-malpractice judgments, arbitration awards, and settlements reported to the board during the preceding five years. Pending medical-malpractice claims shall not be included in the profiles nor disclosed and the profiles will identify those judgments that are being appealed. Each profile shall categorize the number of judgments, arbitration awards and settlements against each physician or podiatrist as average, above average or below average, as compared to other physicians or podiatrists within the same specialty. Each profile shall also include a statement that “settlement of a claim and, in particular, the dollar amount of the settlement may occur for a variety of reasons, which do not necessarily reflect negatively on the professional competence or conduct of the physician (or podiatrist). A payment in settlement of a medical malpractice action or claim should not be construed as creating a presumption that medical malpractice has occurred.” N.J.S.A. 45:9-22.23(a)(10)(d). The purpose of the NJHCCIA is to make certain information about physicians more accessible to the public. As a result, the privacy provisions in 45:9-19.3 and 45:9-19.10(c), which currently provide limited confidentiality protection to information released to the panel under 17:30D-17, are not applicable to the information in the profiles under the NJHCCIA. Moreover, when the NJHCCIA becomes operative, 45:9-19.3 and 45:9-19.10(c) will not apply to information that is required to be included in the profiles. In March 2003, The Record began gathering information regarding medical-malpractice payments made by or on behalf of medical practitioners licensed in New Jersey. It learned of the panel and 17:30D-17′s requirements that notices of any medial-malpractice claim settlement, judgment or arbitration award involving any practitioner licensed by the State Board of Medical Examiners be submitted to it. A writer with The Record made a request under the New Jersey Open Public Records Act, 47:1A-1, et seq. (OPRA), to the Division of Consumer Affairs for, inter alia, every notice submitted to the panel regarding malpractice payments. That request was denied based in part on the confidentiality provisions in 45:9-19.3 and 45:9-19.10(c). The Record then filed North Jersey Media Group, Inc. v. State of New Jersey, Division of Consumer Affairs and the Medical Practitioner Review Panel, Docket No. BER-L-5771-03, seeking to compel the disclosure of the notices submitted to the panel, pursuant to OPRA and the common-law right to access. Defendants therein opposed the application. The Record amended its request to limit the information sought to: (1) name of physician; (2) license number; (3) date of payment; and (4) amount of payment. The parties agreed that certain notices were exempt from disclosure under OPRA because they were protected by 45:9-19.3 and 45:9-19.10(c). The Record, seeking disclosure of all the payment notices during the previous five years, proceeded with its common-law claim for access. Judge Moses granted the request for common law. She found that since insurers are required to submit the payment notices to the panel pursuant to 17:30D-17, the notices are common-law public records. She also found that The Record had the requisite interest in the payment notices. Finally, she held that the public interest in disclosing the payment notices outweighed any interest in confidentiality. Judge Moses entered an order granting access to the payment notices. Practitioners were given until May 10, 2004, to dispute any claimed inaccuracy in the files regarding all medical-malpractice payments made on their behalves. All undisputed notices and those notices for which a dispute had been resolved were ordered disclosed by May 11, 2004. Defendants were ordered to resolve any outstanding issues and release the notices to The Record by June 10. MSNJ did not take part in the state-court action. Three business days before Judge Moses’ order was to become effective, MSNJ filed this action seeking a temporary restraining order and preliminary injunction enjoining defendants from (1) disclosing to The Record, pursuant to Judge Moses’ order, information in medical-malpractice payment notices submitted to the state under 17:30D-17; and (2) enforcing the NJHCCIA. The court granted The Record‘s motion to intervene.
I. Jurisdiction and Justiciability Issues
A. Standing Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 343 (1977), held that an association has standing 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.” MSNJ brings this action on various grounds, including alleged violations of the right to contract under U.S. Constitution, Article I, Section 10, clause 1. Defendants object to MSNJ’s standing to raise claims based on allegations that contractual rights of individuals would be impaired by the disclosure of medical-malpractice payment notices. They argue that MSNJ’s claim does not satisfy Hunt‘s third factor since the individual members’ presence in court is necessary because it would be pure speculation to attempt to analyze how their rights would be affected by this action without having them appear and without examining their individual settlements. This claim is without merit. MSNJ does not ask this court to foresee how each individual settlement entered into by its members will be affected by this action. It simply asserts that it is standard procedure for medical-malpractice settlements to include confidentiality provisions, and that Judge Moses’ order and the NJHCCIA, once in effect, would void these provisions. It is safe to assume that every New Jersey physician who entered into a medical-malpractice settlement that includes a confidentiality provision has a real interest in an action bearing on that provision’s effectiveness. Therefore, the doctrine of associational standing provides MSNJ the right to seek injunctive relief to defend its members’ interest, and there is no need to require every individual member to appear. B. 11th Amendment and Abstention 1. 11th Amendment Defendants assert that this action should be dismissed because the 11th Amendment precludes federal jurisdiction over a state absent its consent to suit. This immunity extends to agencies or departments of the state. MSNJ correctly states that its claim for injunctive relief against defendants falls under Ex Parte Young‘s exception to the 11th Amendment. 209 U.S. 123 (1908). “In determining whether the doctrine of Ex Parte Young avoids an 11th Amendment bar to suit, a court need only conduct a ‘straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.’” Verizon Maryland Inc. v. Pub. Serv. Comm’n of Maryland, 535 U.S. 635, 645 (2002). MSNJ alleges that the disclosure of confidential information with regard to medical-malpractice payment notices would constitute a violation of the HCQIA and a constitutional violation of its members’ due process, privacy, equal protection and Contract Clause rights. These allegations meet Verizon‘s “straightforward inquiry” requirement. The Record and defendants suggest that MSNJ’s claim does not satisfy Ex Parte Young because Judge Moses’ order and the NJHCCIA are not inconsistent with the HCQIA and therefore no violation of federal law exists. However, even if this allegation is true, the “inquiry into whether suit lies under Ex Parte Young does not include an analysis of the merits of the claim.” Verizon, 535 U.S. at 646. Therefore, the Ex Parte Young exception to the 11th Amendment applies to this action, defendants are not immune from this suit, and this court is not precluded from hearing this action. However, an exception to the Ex Parte Young doctrine � and therefore an 11th Amendment bar to suit � does apply to certain aspects of plaintiff’s complaint. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984), held that the 11th Amendment bars federal courts from enjoining state officers from violating state laws. Accordingly, while plaintiff’s federal claims against defendants fall under Ex Parte Young and are therefore permissible, its state-law claims against state officials are barred by the 11th Amendment and may not be entertained by this court. 2. Younger Abstention Defendants also argue that this court should abstain from hearing this action pursuant to Younger v. Harris, 401 U.S. 37 (1971). A federal court should abstain under this doctrine when (1) there is an ongoing state proceeding that is judicial in nature; (2) the proceeding implicates important state interests; and (3) there will be an opportunity during the proceeding to raise constitutional challenges. Defendants’ argument fails on two grounds. First, the state proceeding is no longer ongoing. Judge Moses’ order signified the final action in the case and defendants chose not to appeal. Second, defendants contend that Younger and its progeny do not require the state-court action to be currently pending at the time the federal action is filed. Rather, it is sufficient that the federal plaintiff has had an adequate opportunity to resolve the federal issues in state court. This argument also fails. MSNJ was not a party to the state action. Therefore, it had no opportunity to present its federal claims in state court. Defendants contend that MSNJ should have intervened in the state-court action but points to no authority requiring it to intervene in order to protect its rights to bring the federal claims in this action. Therefore, this court will not abstain, pursuant to Younger, from deciding the current action. 3. The Rooker-Feldman doctrine Defendants further allege that plaintiff’s complaint is barred by the Rooker-Feldman doctrine. That doctrine bars federal jurisdiction if the claim was “actually litigated” in state court or if the claim is “inextricably intertwined” with the state adjudication. The Third Circuit has consistently held that for the doctrine to bar an action in federal court, the plaintiff must have been a party to the state proceeding or, at the very least, have been in privity with a party to the state-court action. MSNJ was neither a party, nor in privity with a party, to the action before Judge Moses and therefore cannot be barred by the Rooker-Feldman doctrine. Defendants argue that this case is “inextricably intertwined” with claims that were already litigated, citing ITT Corp. v. Intelnet Int’l, 366 F.3d 205, 211 (3d Cir. 2004), but their reliance on ITT Corp. is misplaced. First, the plaintiff in ITT Corp. was a party to the state-court proceeding. Second, this court need not determine that Judge Moses’ order was erroneously entered to find for plaintiff. None of the constitutional claims presented here were before Judge Moses. Accordingly, the Rooker-Feldman doctrine does not bar this action.
II. Motion for Preliminary Injunction
A. Application for Preliminary Injunctive Relief With Respect to the NJHCCIA 1. The NJHCCIA does not violate federal law Plaintiff claims that the NJHCCIA, in conjunction with the reporting requirements of 17:30D-17, violates a federal right to privacy provided by the HCQIA, since the confidentiality provisions in the HCQIA preclude defendants from releasing information about malpractice settlements under New Jersey law. Held: Plaintiff assumes that since the information collected pursuant to both statutory frameworks is the same, the federal privacy provisions trump state privacy provisions. This is not the case. There is no provision in the HCQIA that makes information independently collected by a state agency confidential. The information at issue is reported directly to the panel by insurance carriers to comply with both federal and state law and is not information that the panel obtains from the data bank. Accordingly, the confidentiality provisions in the HCQIA have no applicability to the information reported to the panel. This court need not consider the privacy protections afforded by the HCQIA with regards to information sent directly to the panel. There is simply no provision in the federal law deeming information that is independently collected by a state agency confidential. Without a consideration of the HCQIA, what remains is purely a question of New Jersey law. Further, the HCQIA provides a specific carve-out for state law. Once the NJHCCIA becomes effective, it is clear that New Jersey law will not preclude the public dissemination of medical-malpractice information setting forth the dates on which malpractice payments were made by a practitioner and the amount of those payments. Plaintiff agrees that once the NJHCCIA goes into effect, malpractice settlements will no longer be confidential under New Jersey law and will fall under the carve-out provision in � 11137(b)(1). However, it points to 45:9-19.3 and 45:9-19.10(c) that currently restrict the dissemination of medical-malpractice information and argues that their operation currently and for years past cuts against the retroactive nature of the NJHCCIA, which requires disclosure of information from the past five years. MSNJ asserts that medical professionals have had an expectation of privacy during this five-year period and many have entered into settlements only because of the confidentiality clauses therein. It contends that such confidentiality clauses have been effectively protected by 45:9-19.3 and 45:9-19.10(c). This argument presents an issue of New Jersey law that this court may not consider. 2. The NJHCCIA Is Not Unconstitutional a. Contract Clause Claim Plaintiff alleges that the NJHCCIA violates Article I, Section 10, clause 1 of the U.S. Constitution by requiring the disclosure of information subject to confidentiality agreements in existing contracts. This claim is wrong. First, New Jersey law provides that information about any malpractice judgment, award or settlement must be disclosed to the State Board of Medical Examiners. N.J.S.A. 17:30D-17 specifically provides that settlements that preclude the disclosure of such information to the board are void and unenforceable. Thus, the confidentiality requirement in existing settlements may bind the parties to the agreement, but does not bind the state board. Because the NJHCCIA seeks to disclose information legally obtained by the Panel, it cannot be viewed as “impairing the Obligation of Contracts.” U.S. Const., Art. I, � 10, cl. 1. Second, the magnitude of the NJHCCIA’s impairment effect on medical-malpractice agreements does not meet the constitutional threshold under existing case law. Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U.S. 400 (1983), enunciated a three-part test to determine whether a state’s exercise of its police power violates the impairment-of-contracts clause. “The threshold inquiry is ‘whether the state law has, in fact, operated as a substantial impairment of a contractual relationship.’” Id. at 411. If it does, “the State, in justification, must have a significant and legitimate public purpose behind the regulation, such as the remedying of a broad and general social or economic problem.” Id. at 411-12. If a legitimate public purpose exists, “the next inquiry is whether the adjustment of ‘the rights and responsibilities of contracting parties [is based] upon reasonable conditions and [is] of a character appropriate to the public purpose justifying [the legislation's] adoption.’” Id. at 412. Plaintiff fails to meet the first factor of the Energy Reserves test. The primary purpose of medical-malpractice settlements is to resolve disputes between the parties. Confidentiality is a collateral aspect of the settlement. Plaintiff failed to show how this collateral aspect is a fundamental and necessary part of such settlements. Even if the NJHCCIA did cause a substantial impairment to existing contracts, this disservice does not amount to a violation of the Contract Clause because the state has “a significant and legitimate public purpose” behind the legislation. Id. at 411-12. Providing relevant information about physicians’ backgrounds helps consumers make informed choices with regard to medical services. Because the NJHCCIA is grounded in a legitimate public purpose and the state is not a party to the medical-malpractice agreements, this court must respect the New Jersey Legislature’s policy-making authority with regards to the necessity and the reasonableness behind disclosure of statutorily mandated medical-malpractice information. Accordingly, plaintiff’s constitutional claim for violation of the Contract Clause fails. b. Right to Privacy Citing Roe v. Wade, 410 U.S. 113 (1973), MSNJ claims that enforcement of the NJHCCIA and Judge Moses’ order would amount to a constitutional infringement on the fundamental privacy rights of New Jersey’s physicians. It does not demonstrate how Roe is applicable and has, in effect, abandoned this claim. Plaintiff’s claim that the NJHCCIA violates medical practitioners’ fundamental right to privacy must fail. c. Equal Protection MSNJ claims that the NJHCCIA improperly distinguishes between physicians and podiatrists and other types professionals. It also argues that the state has no compelling reason to require the disclosure of information concerning settlements of cases involving doctors, while permitting those involving other professionals to remain confidential. MSNJ does not provide any support for this claim. Gov’t of the Virgin Islands v. Harrigan, 791 F.2d 34, 36 (3d Cir. 1986), quoting Oyler v. Boles, 368 U.S. 448 (1962), held that in order to state an equal-protection claim, a claimant must show that others similarly situated have not been treated in the same manner, and that the state’s decisions were made pursuant to “an unjustifiable standard . . . ‘such as race, religion, or other arbitrary classification’ . . . or to prevent [the plaintiff's] exercise of a fundamental right.” New Jersey’s physicians do not fall under any of the categories enumerated in Oyler. Given that MSNJ’s constituents do not fall into one of these specifically delineated groups, its equal-protection argument must fail. 3. No Preliminary Injunction Because plaintiff fails to assert a cognizable claim that the NJHCCIA violates federal law, it does not meet the first requirement of the preliminary injunction standard. In addition, the extent to which the nonmoving party will suffer irreparable harm if the injunction is issued outweighs the extent to which the moving party will suffer irreparable harm without injunctive relief. Plaintiff cannot be heard to complain of disclosure of judgments since, by their very nature, judgments are public records. Any claim to irreparable injury with respect to the release of malpractice settlement information pursuant to the NJHCCIA is attenuated by the statement in each physician’s profile that settlements do not necessarily reflect negatively on professional competence. Moreover, the nonmoving party would suffer irreparable harm if the injunction were granted. The state’s interest in protecting consumers could be impaired by a patient choosing a doctor whose performance has been seriously compromised. The public would be deprived of information that could be vital in making an informed decision in one of the most important areas of life: one’s health. Finally, public policy weighs in favor of the NJHCCIA. Federal courts must give deference to laws passed by the state legislature. Plaintiff’s motion to enjoin the enforcement of the NJHCCIA is denied. C. Application for Preliminary Injunctive Relief With Respect to Judge Moses’ Order 1. Violation of Due Process MSNJ contends that Judge Moses’ order should not be enforced against it because it was not a party to the state action. It claims that its members cannot be bound by a state-court order when they were not a party to the case. In support of its position, MSNJ provides two anonymous declarations of doctors who entered into malpractice settlement agreements. One declared that he settled a particular suit rather that go through the time and expense of trial. He said that he would not have settled but for the clause requiring the parties to keep the settlement confidential. He declared that he only recently became aware of the action before Judge Moses. The second declaration contained similar statements. Although the court is sympathetic to the doctors’ plight, plaintiff’s arguments do not rest on a sound statement of the law. It alleges that because it was not a party to the state-court action, Judge Moses’ order violates the due process rights of its members. It cites no authority for this claim. Plaintiff was aware of the state litigation that lasted for more than five months, yet made no attempt to intervene in that action, or to challenge its outcome � or the constitutionality of the NJHCCIA on which the judgment partially relied � in state court. Further, Judge Moses found that The Record‘s request was limited to information held by the state, and that this information, under the common law, is a public record. There is no due process violation because Judge Moses ordered the release of information that the panel collects, not a release of information from the doctors themselves. Thus, The Record had no reason, and was under no obligation, to join MSNJ in the state action. In addition, by refuting defendants’ arguments regarding Younger abstention and the Rooker-Feldman doctrine, MSNJ emphasized that it was not bound to intervene in the action before Judge Moses. It cannot on the one hand claim it was not forced to intervene and on the other hand claim the rights of its members were violated because it did not choose to intervene. 2. Information at Issue in the Order Is Not Confidential Pursuant to the HCQIA Plaintiff contends that the information The Record sought released in the state-court action is information gathered and maintained by the federal government pursuant to the HCQIA and is therefore subject to the confidentiality protections in the HCQIA. However, The Record sought disclosure of malpractice payment notices required to be provided by insurers to the panel pursuant to 17:30D-17. While the HCQIA and 17:30D-17 require disclosure of the same type of information, the two statutory obligations are separate and distinct. Moreover, in granting The Record‘s application for access to the documents, Judge Moses held that the payment notices constituted common-law public records, based on the fact that insurers are required to submit the notices to the panel under 17:30D-17. Judge Moses based her decision on a sound interpretation of New Jersey common-law principles. Therefore, even if this court were to look to the plain language of the HCQIA, it does not apply. Its confidentiality provision states that “[n]othing in this subsection shall prevent the disclosure of such information by a party which is otherwise authorized, under applicable State law, to make such disclosure.” 42 U.S.C. � 11137(b)(1). Judge Moses has made the determination that the information may be disclosed under New Jersey common law. Therefore, even pursuant to the framework of the HCQIA, the information ordered released clearly falls under the carve-out provision of � 11137(b)(1). 3. No Preliminary Injunction MSNJ has failed to satisfy the first factor required for a preliminary injunction: it has not shown a likelihood of success on the merits. The other factors required for a preliminary injunction weigh in favor of defendants’ compliance with the order. Because there is no federal statutory or constitutional impediment to releasing the information at issue pursuant to the order, plaintiff’s motion for an injunction is denied. II. Motion to Dismiss A. Fed. R. Civ. P. 12(b)(1) Defendants move to dismiss plaintiff’s complaint for lack of subject-matter jurisdiction. Because the action is not barred by the 11th Amendment; the court need not abstain under Younger; the action is not barred by the Rooker-Feldman doctrine; and MSNJ has standing to bring this action, defendants’ motion to dismiss under Rule 12(b)(1) is denied. B. Fed. R. Civ. P. 12(b)(6) Viewing plaintiff’s claims in the most favorable light, it is not entitled to any federal or statutory relief. The balance of the relief sought presents solely a question of state law. Therefore, plaintiff’s complaint must be dismissed for failure to state a claim. Defendants raise an additional question as to plaintiff’s ability to bring count one of the complaint, in which plaintiff alleges that Judge Moses’ order will deprive, under color of state law, its members of a right to privacy secured to them by the HCQIA. The complaint also alleges that MSNJ’s members would suffer immediate, irreparable harm by reason of a breach of their reasonable expectation of privacy and requests injunctive relief. Plaintiff may only maintain a � 1983 action where the rights sought to be vindicated are unambiguously conferred. Plaintiff fails to demonstrate that Congress intended the HCQIA to provide private individuals with the right to bring � 1983 actions. On a plain reading, the language of the statute does not provide such a right. Further, there is no case law interpreting the HCQIA to provide such right. Finally, since MSNJ fails to demonstrate that Judge Moses’ order would violate unambiguous constitutional or federal rights of its members, � 1983 cannot apply here. Defendants’ motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) is granted. Plaintiff’s motion for preliminary injunctive relief is denied. Defendants’ motion to dismiss for lack of subject-matter jurisdiction is denied. Defendants’ motion to dismiss for failure to state a claim is granted. Plaintiff’s complaint is dismissed in full. � Digested by Judith Nallin [The slip opinion is 53 pages long.] For plaintiff � Kern, Augustine, Conroy & Schoppmann (Robert J. Conroy). For defendants � Peter C. Harvey, Attorney General (Steven N. Flanzman, Deputy Attorney General). For intervener-defendant North Jersey Media Group, Inc. � Dina L. Sforza.

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