PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
_______________ 11/05/99
THOMAS K. KAHN
No. 99-11177 CLERK
_______________
D. C. Docket No. 99-00253-CIV-T-24F
FLORIDA ASSOCIATION OF MEDICAL EQUIPMENT DEALERS,
MED-HEALTH CARE, et al.,
Plaintiffs-Appellants,
versus
KENNETH S. APFEL, Commissioner of
Health and Human Services,
NANCY-ANN MIN DEPARLE, Administrator, et al.,
Defendants-Appellees.
______________________________
Appeal from the United States District Court
for the Middle District of Florida
______________________________
(November 5, 1999)
Before CARNES and BARKETT, Circuit Judges, and PAINE*, Senior District Judge.
_______________________________________________
* Honorable James C. Paine, Senior U.S. District Judge for the Southern District of
Florida, sitting by designation.
BARKETT, Circuit Judge:
Medi-Health Care Inc., and C&C Homecare, medical equipment suppliers doing
business in Florida, as well as the Florida Association of Medical Equipment Dealers,
an association of 300 medical equipment suppliers (collectively “FAMED”), appeal
the district court’s denial of their petition for a preliminary injunction against Kenneth
Apfel, the commissioner of the Social Security Administration (“the government”).
On appeal, FAMED argues that the trial court erred in dismissing this suit on the
ground that FAMED had failed to establish Article III standing.
Background
In 1998, the Health Care Financing Administration (HCFA), the arm of the U.S.
Department of Health & Human Services with authority and responsibility for
administering Medicare, initiated a bidding process called a “competitive bidding
demonstration project” in Polk County, Florida to contract for medical equipment,
prosthetics, orthotics and other medical supplies pursuant to 42 U.S.C. § 1395w-3; see
also 42 U.S.C. § 1395b-1(a)(1). Under the demonstration project, those who wished
to sell such items to the government were required to compete by submitting bids.
Suppliers whose bids failed to meet competitive price and quality standards were
precluded from providing these items under Medicare. The bidding demonstration
project had been developed with the assistance of Palmetto GBA (Palmetto) with
whom HCFA had contracted for this purpose. To provide feedback regarding design
2
for the demonstration project and to serve as a liaison to interested members of the
public, a National Technical Expert Panel (NTEP), composed of representatives of
national organizations potentially interested in the Medicare bidding process, was
convened. The NTEP met three times for this purpose and was not expected to, and
did not, issue a report.
Rather than submitting bids, FAMED filed this lawsuit claiming that HCFA had
failed to comply with the Federal Advisory Committee Act (FACA), 5 U.S.C. App.
II, § 3, which provides that “advisory committee”1 meetings must comply with
requirements designed to ensure public access and participation. In its complaint,
FAMED claimed that the NTEP was an “advisory committee” within the meaning of
FACA whose advice was adopted in what is used today as the bidding demonstration
project. FAMED charged that it did not have the opportunity to participate because
it never received proper notice of the NTEP meetings which should have been
published in the Federal Register 15 days in advance of the meeting. See 5 U.S.C.
App. 2, § 10(a)(2); 41 C.F.R. Part 101-6.1015(b). FAMED also alleged that the NTEP
failed to comply with other FACA provisions such as making available to the public
1
FACA defines the term “advisory committee” to include “any committee,
board, commission, council, conference, panel, task force, or other similar group . .
. established or utilized by one or more agencies, in the interest of obtaining advice
or recommendations for the President or one or more agencies or officers of the
Federal Goverment. . . .” 5 U.S.C. App. II, § 3.
3
any minutes, transcripts, and other documents from the meeting. See 5 U.S.C. App.
2, §§ 10(c), 10(d). FAMED argues that it would not have lost its opportunity to
participate in the NTEP meetings and potentially to influence the structure of the
demonstration project, which might have afforded FAMED a better chance to succeed
in the bidding process had FACA’s requirements been followed.
In its claim for relief, FAMED sought a preliminary injunction enjoining the
HCFA from using or relying upon any advice, recommendations, or other materials
generated by the work of the NTEP or discussed during NTEP meetings. Plaintiffs
also sought to enjoin the bidding process “until HCFA complies with FACA’s
requirements.” The government opposed FAMED’s request for a preliminary
injunction, arguing first that the plaintiffs lacked subject matter jurisdiction, and
second that FAMED’s complaint failed to state a claim upon which relief may be
granted.
The district court denied the petition for a preliminary injunction on the basis
that FAMED had failed to establish Article III standing because FAMED had not
pointed to any injury traceable to the alleged FACA violation which could be
redressed by the requested injunctive relief. FAMED appeals this determination. This
Court reviews Article III standing, a question of law, de novo. Loggerhead Turtle v.
County Council of Volusia County, Florida, 148 F.3d 1231, 1236 (11th Cir. 1998).
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Discussion
In order to establish Article III standing, a plaintiff must demonstrate: (1) an
injury-in-fact, (2) a causal connection between the injury and the conduct complained
of, and (3) that the injury is likely to be redressed by a favorable decision. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 559 (1992); see also Erwin Chemerinsky,
Federal Jurisdiction 56 (1999).
FAMED argues that it has suffered three different injuries traceable to HCFA’s
alleged violation of FACA: (1) it was unable to participate in the NTEP, and therefore
to influence the configuration of the bidding project; (2) it would be disadvantaged in
a “tainted” bidding project where some bidders had more influence over the structure
of the demonstration project than others; and (3) the livelihood of FAMED’s
membership would be threatened if their bids proved unsuccessful.
In denying FAMED’s motion for a preliminary injunction, the district court
concluded that the only cognizable injury suffered by FAMED was its inability to
participate in the NTEP, but because the NTEP was no longer in existence, such an
injury could not be redressed by the issuance of an injunction. FAMED argues that
the district court erred in concluding that the only cognizable injury was FAMED’s
inability to participate in the NTEP, and that this Court’s decision in Alabama-
Tombigbee Rivers Coalition v. Department of the Interior, 26 F.3d 1103 (11th Cir.
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1994), expressly holds that a court may properly enjoin the government's use of a
product created by a committee that failed to comply with FACA.
We agree with FAMED that under Alabama-Tombigbee a court may properly
enjoin the government’s use of a product created by a committee that failed to comply
with FACA requirements. However, before we can address the underlying merits of
FAMED’s petition, we must first answer the threshold question of whether FAMED
has Article III standing to seek an injunction. FAMED argues that although the court
in Alabama-Tombigbee did not discuss standing, it controls the standing issue here,
because the fact that the court resolved the claim on the merits implies that the
plaintiffs there proved that they had Article III standing. We recognize that the
Supreme Court has found that standing is a threshhold test that, if satisfied, permits
a federal court to proceed to the question of whether a plaintiff has a cause of action.
Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 152-3
(1970). Yet every court has an independent duty to review standing as a basis for
jurisdiction at any time, for every case it adjudicates. FW/PBS, Inc. v. Dallas, 110 S.
Ct. 596, 607-8 (1990).
We need not decide what, if any, precedential value a case has when the
decision reaches the merits without any discussion of standing, because we find
Alabama-Tombigbee inapplicable to the facts before us. Unlike the facts in Alabama-
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Tombigbee, this case lacks the second requirement of standing, a causal connection
between the alleged injury and the allegedly improper conduct. While demonstration
of an injury is necessary to prove standing, it alone is not sufficient. A plaintiff also
must allege and prove that the personal injury is “fairly traceable to the defendant’s
allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen
v. Wright, 468 U.S. 737, 751 (1984). These two requirements of causation – the
allegation that the defendant’s action caused an injury, and redressibility – the
allegation that a favorable court decision would remedy the situation, must both be
satisfied before a federal court may reach the merits of a case.
We initially agree with the district court that FAMED’s allegations of harm or
injury are much too attenuated to meet the requirements for standing. FAMED’s
argument seems to be that: if FAMED were to bid, FAMED could be forced to
participate in a “tainted” bidding project, which might prove unsuccessful, and
potentially threaten the livelihood of FAMED’s membership should their bids be
rejected. More importantly, however, the allegations lack a sufficient connection
between the discussions at the three meetings of the NTEP, the effect of those
discussions on Palmetto’s efforts, the extent of Palmetto’s contribution to the
demonstration project, and the final design of the bidding project. Furthermore, it is
unclear how this chain of events -- as opposed to myriad other possible causes –
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would have contributed to the possible loss by FAMED’s membership of any
prospective bid, assuming one was submitted by all the plaintiffs in the first place.
This case differs greatly from Alabama-Tombigbee, in which the Fish and
Wildlife Service had proposed a rule listing the Alabama Sturgeon as an endangered
species pursuant to a report prepared by a scientific advisory panel assembled to
directly advise the Service on this issue. In Alabama-Tombigbee, 34 businesses
operating in Alabama and Mississippi sought to enjoin the use of the advisory panel’s
report as a basis for the finding that the Alabama Sturgeon was an endangered species.
Plaintiffs alleged that such a designation would have an adverse effect on thousands
of jobs because it would directly shut down related businesses.2 Alabama-Tombigbee,
26 F.3d at 1105, n.3. In that case, the government conceded that the government was
bound to follow FACA, that it had failed to do so, and that the ultimate decision of the
agency to designate the sturgeon as endangered was based upon the scientific advisory
panel’s report.
2
The Endangered Species Act prohibits actions likely to jeopardize the
continued existence of certain species, thus providing “a means whereby the
ecosystems upon which endangered species and threatened species depend may be
conserved . . . .” 16 U.S.C. § 1531(b) (1994). An endangered species is “any species
[of plant or animal] . . . in danger of extinction throughout all or a significant portion
of its range,” as determined by the Secretary of the United States Department of
Interior. Id. at § 1532(6).
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Thus, although the court did not specifically address standing, the facts and the
concessions of the government indicate that the plaintiffs in that case had alleged the
requisite injury and causation to meet the threshhold requirement of Article III
standing. Unlike in Alabama-Tombigbee, where the agency ruling which would have
directly precluded the plaintiffs from continuing in their businesses was specifically
based on a report that was concededly developed in violation of FACA, FAMED’s
injuries are too speculative and the alleged connections much too tenuous to establish
Article III standing here.3
For the foregoing reasons, the district court’s order dismissing this case is
AFFIRMED.
3
Because FAMED has failed to show sufficient causation between the NTEP
meetings and harm to FAMED in terms of the loss of a bid, we do not reach any
questions of redressibility.
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