PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 10-4600
_____________
NEW JERSEY PHYSICIANS, INC.;
MARIO A. CRISCITO, M.D.; PATIENT ROE,
Appellants
v.
PRESIDENT OF THE UNITED STATES;
SECRETARY OF THE UNITED STATES TREASURY;
SECRETARY OF THE UNITED STATES DEPARTMENT
OF HEALTH AND HUMAN SERVICES;
THE ATTORNEY GENERAL OF THE UNITED STATES
_____________
On Appeal from the United States District Court
for the District of New Jersey
(Civil No. 10-cv-01489)
District Judge: Hon. Susan D. Wigenton
Argued June 22, 2011
Before: CHAGARES, JORDAN, and GREENAWAY, JR.
Circuit Judges.
(Filed: August 3, 2011)
Robert J. Conroy (Argued)
R. Bruce Crelin
Kern Augustine Conroy & Schoppmann, P.C.
1120 Route 22 East
Bridgewater, NJ 08807
Counsel for Plaintiffs-Appellants
Beth S. Brinkmann (Argued)
Mark B. Stern
Alisa B. Klein
Dina B. Mishra
Attorneys, Appellate Staff
Civil Division, Room 7531
U.S. Department of Justice
950 Pennsylvania Ave. NW
Washington, D.C. 20530
Counsel for Defendants-Appellees
____________
OPINION
____________
CHAGARES, Circuit Judge.
This appeal concerns a challenge to the Patient
Protection and Affordable Care Act (referred to as the
“Health Care Act” or the “Act”). The plaintiffs object
2
primarily to the Act’s minimum essential coverage provision,
more commonly referred to as the individual mandate. The
mandate, when it becomes effective in 2014, will require all
non-exempt applicable individuals either to maintain a certain
minimum level of health insurance or pay a monetary penalty.
The plaintiffs’ complaint asserts, generally, that the entire
Health Care Act is unconstitutional because the individual
mandate exceeds Congress’s authority to pass laws.
The District Court dismissed the complaint without
reaching the merits of this challenge. Rather, the District
Court held that the plaintiffs failed to plead adequately injury
in fact and, therefore, did not meet their burden to
demonstrate standing. The plaintiffs now appeal that
determination. For the reasons stated below, we will affirm.
I.
A.
The plaintiffs are Mario A. Criscito, M.D., a licensed
New Jersey physician, “Patient Roe,” a patient of Dr.
Criscito’s, and New Jersey Physicians, Inc., a non-profit
corporation that “has as a primary purpose the protection and
advancement of patient access to affordable, quality
healthcare.” Appendix (“App”) 32a. Dr. Criscito is the only
member of New Jersey Physicians, Inc. identified by the
plaintiffs in their pleadings. The defendants are four
governmental officials sued in their official capacities:
President Barack Obama; Timothy Geithner, the United
States Secretary of the Treasury; Eric Holder, the United
States Attorney General; and Kathleen Sebelius, the Secretary
of Health and Human Services.
3
The complaint contains minimal allegations pertaining
to the plaintiffs’ provision or receipt of health care. The
complaint alleges that Dr. Criscito “treats patients” “in the
course of his individual practice of medicine,” and that
“[s]ome of those patients pay [him] for his care and do not
rely on a third-party payor to do so on their behalf.” App.
32a-33a. The complaint also alleges that Roe “is a patient of
Dr. Criscito who pays himself for his care” and that he “is a
citizen of the State of New Jersey who chooses who and how
to pay for the medical care he receives from Dr. Criscito and
others.” App. 33a. Regarding New Jersey Physicians, Inc.,
the complaint asserts only that the organization’s “members
and their patients will be directly affected by the legislation at
issue [i.e., the Health Care Act] . . . should the [legislation]
become effective.” App. 32a.
B.
Only two sections of the Health Care Act1 are relevant
to this appeal.
The first is the previously mentioned individual
mandate, 26 U.S.C. § 5000A. When it takes effect in 2014,
the mandate will require all “applicable individual[s]” to
either obtain a level of health insurance that qualifies as
“minimum essential coverage” or pay a penalty. 26 U.S.C. §
5000A(a), (b), (c). The Act defines an “applicable
1
Pub. L. No. 111-148, 124 Stat. 119 (2010), as later
amended by the Health Care and Education Reconciliation
Act of 2010, Pub. L. No. 111-152, 142 Stat. 1029.
4
individual” to be any United States citizen, national, or
lawfully present alien unless that individual has a valid
religious exemption or is presently incarcerated. 26 U.S.C. §
5000A(d). Not all applicable individuals are subject to the
individual mandate, however. The Act exempts certain
“applicable individual[s],” including those whose household
income is insufficient to require them to file a federal income
tax return, those whose premium payments exceed eight
percent of their household income, and those who establish
that the individual mandate imposes a hardship. 26 U.S.C. §
5000A(e). All non-exempt applicable individuals must
comply with the individual mandate’s requirement and
acquire “minimum essential coverage.” This minimum
essential health insurance coverage may be obtained in
various ways, such as by enrolling in employer-sponsored
insurance plans, individual market plans, or certain
government-sponsored programs such as Medicare or
Medicaid. 26 U.S.C. § 5000A(f).
The second relevant provision is the employer
responsibility provision, 26 U.S.C. § 4980H. This provision
only applies to “applicable large employer[s],” which are
defined as employers that employ fifty or more full-time
employees on average over a calendar year. 26 U.S.C. §
4980H(c)(2)(A). The employer responsibility provision
penalizes such employers if they fail to offer their full-time
employees the opportunity to enroll in an employer-sponsored
insurance plan that satisfies the individual mandate’s
minimum essential coverage requirement. 26 U.S.C. §
4980H(a).2 Like the individual mandate, the employer
2
In addition, for an applicable large employer to be
penalized, at least one of the employer’s full-time employees
5
responsibility provision will take effect in 2014. 26 U.S.C. §
4980H(d).
C.
The plaintiffs initiated this action by filing a complaint
in the United States District Court for the District of New
Jersey on March 24, 2010. On March 30, 2010, the plaintiffs
filed their First Amended Complaint (referred to primarily as
the “complaint” throughout). The defendants challenged the
plaintiffs’ invocation of the District Court’s jurisdiction
pursuant to 28 U.S.C. § 1331, and in an opinion dated
December 7, 2010, the District Court granted the defendants’
motion to dismiss on the ground that it lacked subject matter
jurisdiction. Specifically, the District Court held that all three
of the plaintiffs failed to allege the requisite injury in fact and
thus did not meet their burden to demonstrate standing. The
District Court’s opinion did not address the defendants’
alternative jurisdictional arguments or the merits of the
plaintiffs’ constitutional challenge. This timely appeal
followed.
II.
Article III of the United States Constitution limits the
jurisdiction of federal courts to the resolution of “[c]ases” and
“[c]ontroversies.” U.S. Const. art. III, § 2. “This language
must receive a premium tax credit or cost-sharing reduction
through a health benefit exchange. 26 U.S.C. § 4980H(a).
6
restricts the federal judicial power to the traditional role of the
Anglo-American courts” and thereby prevents courts from
taking “possession of almost every subject proper for
legislative discussion and decision.” Ariz. Christian Sch.
Tuition Org. v. Winn, 131 S. Ct. 1436, 1441-42 (2011)
(citations and quotation marks omitted). “No principle is
more fundamental to the judiciary’s proper role in our system
of government than the constitutional limitation of federal-
court jurisdiction to actual cases or controversies.” Simon v.
E. Ky. Welfare Rights Org., 426 U.S. 26, 37 (1976).
“Courts enforce the case-or-controversy requirement
through the several justiciability doctrines,” which “include
standing, ripeness, mootness, the political-question doctrine,
and the prohibition on advisory opinions.” Toll Bros., Inc. v.
Twp. of Readington, 555 F.3d 131, 137 (3d Cir. 2009). This
appeal implicates standing, “[p]erhaps the most important of
these doctrines.” Id. (quotation marks omitted). Standing “is
every bit as important in its circumscription of the judicial
power of the United States as in its granting of that power.”
Valley Forge Christian Coll. v. Ams. United for Separation of
Church & State, Inc., 454 U.S. 464, 476 (1982).
The three “irreducible” constitutional elements of
standing are: (1) an “injury in fact”; (2) “a causal connection
between the injury and the conduct complained of – the injury
has to be fairly traceable to the challenged action of the
defendant, and not the result of the independent action of
some third party not before the court”; and (3) a showing that
it “be likely, as opposed to merely speculative, that the injury
will be redressed by a favorable decision.” Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)
(alterations, citations, and quotation marks omitted). The
7
only constitutional element at issue on this appeal is the first
one – “injury in fact.”
To establish injury in fact, a plaintiff must allege an
injury that is both (1) “concrete and particularized” and (2)
“actual or imminent, not conjectural or hypothetical.” Id.
(quotations omitted). Each of these definitional strands
imposes unique constitutional requirements. An injury is
“concrete” if it is “real,” City of L.A. v. Lyons, 461 U.S. 95,
102 (1983), or “distinct and palpable, as opposed to merely
abstract,” Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)
(quotation marks and citations omitted), while an injury is
sufficiently “particularized” if it “affect[s] the plaintiff in a
personal and individual way,” Lujan, 504 U.S. at 560 n.1.
The second requirement – “actual or imminent, not
conjectural or hypothetical” – makes plain that if a harm is
not presently or “actual[ly]” occurring, the alleged future
injury must be sufficiently “imminent.” Imminence is
“somewhat elastic,” Lujan, 504 U.S. at 564 n.2, but requires,
at the very least, that the plaintiffs “demonstrate a realistic
danger of sustaining a direct injury,” Babbitt v. United Farm
Workers Nat’l Union, 442 U.S. 289, 298 (1979) (emphasis
added); see also Lujan, 504 U.S. at 564 n.2 (requiring that an
imminent injury be “certainly impending” (quotation marks
omitted)). In other words, there must be a realistic chance –
or a genuine probability – that a future injury will occur in
order for that injury to be sufficiently imminent.3
3
The Supreme Court has indicated that there may be a
temporal component to imminence’s probabilistic limitation.
McConnell v. FEC, 540 U.S. 93, 226 (2003) (holding that an
alleged injury in fact that will not occur for at least six years
“is too remote temporally to satisfy Article III standing”),
8
III.
The defendants present a facial challenge to subject
matter jurisdiction, contesting the sufficiency of the plaintiffs’
pleadings. We exercise plenary review over the District
Court’s dismissal on this basis, Common Cause of Pa. v.
Pennsylvania, 558 F.3d 249, 257 (3d Cir. 2009), accepting all
allegations as true and construing those allegations in the light
most favorable to the plaintiffs, see Gould Elecs. Inc. v.
United States, 220 F.3d 169, 176 (3d Cir. 2000).4
Only one of the three named plaintiffs must establish
standing in order for a court to consider the merits of their
challenge to the Health Care Act. See Rumsfeld v. Forum for
Academic & Institutional Rights, Inc., 547 U.S. 47, 52 n.2
(2006). Each plaintiff bears the burden of demonstrating
standing “with the manner and degree of evidence required at
the successive stages of the litigation.” Lujan, 504 U.S. at
561. Accordingly, given the procedural posture of this case,
“general factual allegations of injury resulting from the
defendant’s conduct may suffice.” Id. Even at the motion to
dismiss stage, however, “[i]t is a long-settled principle that
standing cannot be inferred argumentatively from averments
in the pleadings but rather must affirmatively appear in the
record.” FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231
(1990) (internal citation and quotation marks omitted).
Ultimately, “[a] federal court is powerless to create its own
overruled on other grounds, Citizens United v. FEC, 130 S.
Ct. 876 (2010).
4
We have appellate jurisdiction under 28 U.S.C. § 1291.
9
jurisdiction by embellishing otherwise deficient allegations of
standing.” Whitmore, 495 U.S. at 155-56.
IV.
In light of the disposition below, the only issue before
this Court is whether the plaintiffs have met their burden in
pleading injury in fact. We will assess the allegations
relevant to each plaintiff in turn.
A.
The only allegations pertaining to any injury in fact
suffered by Patient Roe are as follows: (1) “Roe is a patient
of Dr. Criscito who pays himself for his care,” and (2) Roe “is
a citizen of the State of New Jersey who chooses who and
how to pay for the medical care he receives from Dr. Criscito
and others.” App. 33a. These allegations are factually barren
with respect to standing. The first apparently suggests that
Roe pays for his own health care. The second reveals only
that, before Roe pays, he chooses his doctor and his method
of payment. It provides no specifics as to whom Roe chooses
or how Roe pays.
These allegations are insufficient to establish injury in
fact. First, Roe fails to set forth any current “actual”
“concrete and particularized” injury. There are no facts
alleged to indicate that Roe is in any way presently impacted
by the Act or the mandate. This case is thus unlike some of
the other pending health care challenges, in which the
plaintiffs alleged or demonstrated that they were experiencing
some current financial harm or pressure arising out of the
individual mandate’s looming enforcement in 2014. See
10
Thomas More Law Ctr. v. Obama, No. 10-2388, --- F.3d ----,
2011 WL 2556039, at *3 (6th Cir. June 29, 2011) (“As to
actual injury, the declarations of [two of the individual
plaintiffs] show that the impending requirement to buy
medical insurance on the private market has changed their
present spending and saving habits.”); see also Liberty Univ.,
Inc. v. Geithner, 753 F. Supp. 2d 611, 624-25 (W.D. Va.
2010) (“Presently felt economic pressure, like that Plaintiffs
claim to experience from the employer and individual
coverage provisions, may originate from a future event that is
in some respects uncertain to occur.”).
Second, Roe’s allegations do not establish that a future
“concrete and particularized” injury is “imminent.”5 As an
initial matter, the complaint is entirely silent as to whether
Roe will be a non-exempt “applicable individual” subject to
the mandate’s requirement to obtain “minimum essential
coverage” in 2014. This omission, taken in isolation, would
not necessarily be fatal to the standing analysis if Roe was
otherwise able to establish a “realistic danger” that he would
be harmed by the individual mandate. Roe, however, has
alleged no predicate facts to demonstrate that his situation
will even change when the individual mandate takes effect on
5
In so holding, we do not adopt the defendants’ argument
that two related factors preclude individuals from relying on
the individual mandate to establish imminent harm: (1) the
passage of time before that mandate will be enforced, and (2)
the unpredictability that attends any such passage of time.
According to the defendants, the plaintiffs must wait until
shortly before the individual mandate’s 2014 effective date to
file suit in order to establish the requisite “imminence.” We
question that reasoning and so do not rely on it.
11
January 1, 2014. There is nothing inherent in the terms of the
mandate that will alter Roe’s current reality, at least as that
reality is set forth in the plaintiffs’ complaint. Roe will
continue to be free to choose “who and how” to pay for his
health care needs, including by paying for those needs out of
his own pocket. The individual mandate may, of course,
impact Roe depending on the precise “who and how” he
chooses. Absent more specific allegations, however, we
simply cannot conclude on the record before us that there is a
realistic danger or genuine probability that Roe will suffer a
cognizable imminent injury resulting from the individual
mandate.6
B.
The complaint is similarly deficient in regard to Dr.
Criscito. The only allegations pertaining to any injury in fact
suffered by Dr Criscito are as follows: (1) “Dr. Criscito, in
the course of his individual practice of medicine, treats
patients,” and (2) “[s]ome of those patients pay Dr. Criscito
for his care and do not rely on a third-party payor to do so on
their behalf.” App. 32a-33a. These allegations – as with the
allegations pertaining to Roe – state very little: only that Dr.
Criscito, as a doctor, treats patients, and that some of those
patients currently pay Dr. Criscito out of pocket.
6
This case is thus in contrast to Thomas More. In that case,
the plaintiffs demonstrated sufficient predicate facts to allow
the Court of Appeals for the Sixth Circuit to conclude that
“[t]he only developments that could prevent [an] injury from
occurring are not probable and indeed themselves highly
speculative.” Thomas More, 2011 WL 2556039, at *4.
12
The plaintiffs argue that Dr. Criscito has (or will)
suffer two kinds of injuries pursuant to these allegations.
First, the plaintiffs maintain that Dr. Criscito will suffer an
injury because “Dr. Criscito, as a citizen of the United States,
will be subject to the individual mandate in the same manner
and to the same extent as would Patient Roe.” Pls.’ Br. 14.
The plaintiffs, however, fail to meet their burden in
demonstrating injury in fact pursuant to this theory for the
same reasons just discussed with respect to Roe. The
complaint sets forth no facts to establish that Dr. Criscito is
suffering or will suffer an actual or imminent “concrete and
particularized” injury.
Second, the plaintiffs posit that, “[i]n addition to this
impact, as a physician, [the Health Care Act’s] provisions will
have a direct, substantial impact upon Dr. Criscito’s medical
practice, the manner in which he may, or may not, seek
payment for his professional services and the manner in
which he may render treatment to his patients.” Pls.’ Br. 14.
Again, the plaintiffs plead no facts in their complaint to
buttress these arguments and thus prove nothing more than an
impermissible “conjectural or hypothetical” injury in fact
suffered by Dr. Criscito.
The plaintiffs also do not plead any facts to
demonstrate that Dr. Criscito will be injured by the Health
Care Act’s employer responsibility provision, 26 U.S.C. §
4980H. As discussed above, this provision only applies to
employers that have at least fifty full-time employees, and the
plaintiffs’ complaint fails to specify how many employees
work for Dr. Criscito. Here, as with Dr. Criscito’s other
theories of standing, the complaint fails to allege the
necessary predicate facts.
13
C.
Finally, there is only one relevant allegation pertaining
to New Jersey Physicians, Inc.: “[New Jersey Physicians,
Inc.’s doctor-] members and their patients will be directly
affected by the legislation at issue . . . should the [legislation]
become effective.” App. 32a. In order to establish
associational standing, however, an organization must “make
specific allegations establishing that at least one identified
member ha[s] suffered or would suffer harm.” Summers v.
Earth Island Inst., 129 S. Ct. 1142, 1151 (2009).7 Here, the
only member of New Jersey Physicians, Inc. identified in the
complaint is Dr. Criscito, and for the reasons just stated, the
complaint fails to establish that Dr. Criscito has experienced
any injury in fact. Accordingly, the plaintiffs have failed to
meet their burden in proving New Jersey Physicians, Inc’s
associational standing.
V.
For the reasons discussed above, the plaintiffs have not
met their burden in pleading facts that establish the requisite
7
Additionally, “[t]here is no question that an association may
have standing in its own right to seek judicial relief from
injury to itself and to vindicate whatever rights and
immunities the association itself may enjoy.” Warth v.
Seldin, 422 U.S. 490, 511 (1975). New Jersey Physicians,
Inc., however, brings this suit only on behalf of its “members
and their patients [who] will be directly affected by the
legislation at issue.” App. 32a.
14
injury in fact and therefore fail to demonstrate standing. We
will affirm.8
8
In affirming, we note that the District Court’s dismissal for
lack of subject matter jurisdiction was by definition without
prejudice. Figueroa v. Buccaneer Hotel Inc., 188 F.3d 172,
182 (3d Cir. 1999). The plaintiffs may thus pursue a new
action and attempt to remedy the jurisdictional defects
discussed in this opinion.
15