Nova Health Systems v. Fogarty, 416 F.3d 1149

Lead Opinion

ORDER

Wе GRANT Appellee’s Petition for Panel Rehearing for the limited purpose of withdrawing the previous panel opinion and concurring/dissenting opinion and substituting a revised panel opinion and concurring/dissenting opinion. In all other regards, the Petition for Panel Rehearing is DENIED.

A judge of the court called for a vote on the petition for rehearing en banc. A vote was taken, and a majority of the active judges of the court failed to vote for en banc rehearing.¹ Fed. R. App. P. 35(f). Therefore, the suggestion for en banc rehearing is DENIED.

ABEL, Circuit Judge.

An Oklahoma statute makes abortion providers liable for any subsequent medical costs that may be required because of an abortion performed on a minor without parental consent or knowledgе. Seeking to challenge the constitutionality of that statute, Nova Health Services (“Nova”), an abortion provider, brought this action for injunctive and declaratory relief against various officials who oversee certain public health care facilities in Oklahoma. These public officials have not attempted to recover any medical costs from Nova under the challenged statute, although it is possible that they may seek to do so sometime in the future.

The district court held that there was a justiciable case or controversy between the parties and entered summary judgment against the defendants. The court issued declaratory and injunctive relief against the defendants, declaring that the Oklahoma stаtute imposed an unconstitutional burden on a woman’s ability to obtain an abortion and was excessively vague.

We now hold that Nova lacked standing to bring this lawsuit because it has not shown that the injury it may have suffered due to the challenged Oklahoma law was caused by these particular defendants or that it would be redressed by a judgment against them. Indeed, nothing in the record distinguishes these defendants from any other party who might one day have the occasion to seek compensatory damages under the challenged statute as a civil plaintiff. A party may not attack a tort statute in federal court simply by naming as a defendant anyone who might someday have a cause of action under the challenged law.

Absent a gеnuine case or controversy between the parties, it is not constitutionally permissible for the federal courts to decide the issues presented. Accordingly, we VACATE the order of the district court against the defendants in this appeal,² and DISMISS for lack of jurisdiction.

BACKGROUND

Prior to June 2001, Nova offered abortions to minors without requiring that they first notify a parent. According to Nova, it “saw approximately one to two minors a month who had not consulted with a parent regarding their abortion.” When a prospective minor patient stated that she had not talked to a parent about the abortion, Nova would encourage her to do so but would ultimately leave that decision to the patient. In “many cases,” the minor eventually would choose to consult with а parent about the abortion.

In June 2001, Oklahoma enacted a law providing that:

Any person who performs an abortion on a minor without parental consent or knowledge shall be liable for the cost of any subsequent medical treatment such minor might require because of the abortion.

Okla. Stat. tit. 63, § 1-740. Although this law applies only to abortions performed on minors without parental “consent or knowledge,” Nova responded by deciding that, in the future, it would require minors to produce in-person parental consent in order to obtain an abortion there. Since § 1-740 came into effect, Nova alleges that it has “turnfed] away young women who have valid and compelling reasons for not involving their parents in their decision.” More specifically, Nova asserts that between July 2001 and January 2002 at least 31 minors declared that they would not bring a parent to the clinic to give consent.³

Less than a week after § 1-740 came into effect, Nova filed the instant lawsuit in federal district court seeking declaratory and injunctive relief. The four defendants in this appeal are Oklahoma public officials whose functions include overseeing certain state medical institutions. Nova alleged in its complaint that each of these institutions provide some form of medical treatment services, but the record does not detail the scope of their activities.

Dean Gandy is the Executive Director of the University Hospitals Authority, which oversees Oklahoma Memorial Hospital and Children’s Hospital of Oklahoma. See Okla. Stat. tit. 63, § 3204. Terry L. Cline is the Commissioner of the Oklahoma Department of Mental Health and Substance Abuse Services, which manages state institutions designed to treat mental illness and drug and alcohol dependency. See Okla. Stat. tit. 43A, § 2-102. David L. Boren is the President of the University of Oklahoma, which includes the University of Oklahoma Health Science Center in Tulsa and the University of Oklahoma Medical Center in Oklahoma City. See Okla. Stat. tit. 70, §§ 3103, 3301. James Halli-gan is the President of Oklahoma State University, which includes the Oklahoma State University College of Osteopathic Medicine and Surgery in Tulsa. See Okla. Stat. tit. 70, §§ 3103, 3423.

Before the district court, Nova argued that § 1-740 is unconstitutional because it lacks an exception for abortions performed in medical emergencies, lacks a judicial bypass procedure, and is impermissibly vague. The defendants argued, among other things, that Nova failed to demonstrate Article III standing. The district court denied the defendants’ motions to dismiss and motions for summary judgment, and granted Nova’s motion for summary judgment. The defendants listed above appealed. For the reasons discussed below, we VACATE the judgments against these defendants and DISMISS for lack of standing.⁴

ANALYSIS

As an irreducible constitutional minimum, a plaintiff must satisfy three criteria in order for there to be a “case or controversy” that may be resolved by the federal courts. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). First, the plaintiff must have suffered an “injury in fact” — an invasion of a legally protected interest that is both (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. Id. Second, there must be a causal connection between that injury and the challеnged action of the defendant — -the injury must be “fairly traceable” to the defendant, and not the result of the independent action of some third party. Id. Finally, it must be likely, not merely speculative, that a favorable judgment will redress the plaintiffs injury. Id. at 561, 112 S.Ct. 2130.

We review questions of standing de novo. Utah v. Babbitt, 137 F.3d 1193, 1203 (10th Cir.1998). As the party seeking to invoke federal jurisdiction, the plaintiff (here Nova) has the burden of establishing each of these three elements of Article III standing. See Lujan, 504 U.S. at 561, 112 S.Ct. 2130. At the summary judgment stage, the plaintiff must set forth by affidavit or other evidence specific facts that, if taken as true, establish each of these elements. Id. “A federal court is powerless to create its own jurisdiction by embellishing otherwise deficient allegations of standing.” Whitmore v. Arkansas, 495 U.S. 149, 155-56, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990).

Standing is determined as of the time the action is brought. See Smith v. Sperling, 354 U.S. 91, 93 n. 1, 77 S.Ct. 1112, 1 L.Ed.2d 1205 (1957); see also Friends of the Earth, Inс. v. Laidlaw Envtl. Servs., 528 U.S. 167, 180, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (“[W]e have an obligation to assure ourselves that [plaintiff] had Article III standing at the outset of the litigation.”) (emphasis added); Focus on the Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1275 (11th Cir.2003) (“Article III standing must be determined as of the time at which the plaintiffs complaint is filed.”); Carr v. Alta Verde Indus., Inc., 931 F.2d 1055, 1061 (5th Cir.1991) (“As with all questions of subject matter jurisdiction except mootness, standing is determined as of the date of the filing of the complaint.”). Accordingly, the question we face is whether, as of June 2001, Nova faced a concrete and actual or imminent injury in fact that was caused by the defendants in this case and that was redressable by a favorable judicial order.⁵

A. Injury In Fact

As noted above, an injury in fact must be actual or imminent, not conjectural or hypothetical. Lujan, 504 U.S. at 560, 112 S.Ct. 2130. “Allegations of possible future injury do not satisfy the requirements of Art. III. A threatened injury must be ‘certainly impending’ to constitute injury in fact.” Whitmore, 495 U.S. at 158, 110 S.Ct. 1717. “An Article III injury ... must be more than a possibility.... The threat of injury must be both real and immediate.” Essence, Inc. v. City of Federal Heights, 285 F.3d 1272, 1282 (10th Cir.2002) (quotation omitted).

There is evidence in the record that, before § 1-740 came into effect, one or two minors each month would seek abortions at Nova without first consulting with a parent. In light of this past demand for abortions without parental involvement, Nova certainly could have expected to lose some business under its new policy demanding that minors obtain in-person parental consent. Further, there is evidence in the record that Nova actually turned away 31 minors who sought abortions between July 2001 and January 2002, after § 1-740 came into effect, because they, refused to comply with Nova’s new parental consent policy.

This evidence is enough, for summary judgment purposes, to support a conclusiоn that it was imminent at the time Nova brought this action that it would lose some minor patients. See Singleton v. Wulff, 428 U.S. 106, 113, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) (identifying abortion providers’ injury as ‍‌‌‌‌‌​​​‌‌​‌​‌​‌​​‌​​​​‌​‌‌​‌​‌​​‌‌​‌​‌‌​‌​​‌‌‌​‍a direct financial impact on their practice); Doe v. Bolton, 410 U.S. 179, 188, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973) (physicians may establish injury in fact when challenging abortion regulations by showing a “sufficiently direct threat of personal detriment”); Salem Inn, Inc. v. Frank, 522 F.2d 1045, 1047 n. 10 (2d Cir.1975) (standing established when plaintiff suffered economic loss due to compliance with a challenged ordinance).

Accordingly, Nova has sufficiently demonstrated at this stage of the litigation that it faced a concrete and imminent injury in fact. More specifically, as of June 2001, Nova faced an imminent likelihood that it would lose some minor patients seeking abortions.⁶

B. Causation

We next turn to whether Nova's injury in fact-the imminent threat that Nova would lose some minor patients seeking abortions-is fairly traceable to the defendants in this action. We hold that Nova has failed to demonstrate the necessary causal connection between its injury and these defendants.

To invoke federal jurisdiction, a plaintiff must show that his or her injury is “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.” Lujan, 504 U.S. at 560, 112 S.Ct. 2130 (quotation omitted). As other courts have noted, Article Ill’s causation requirement demands “something less than the concept of ‘proximate cause.’ ” See Focus on the Family, 344 F.3d at 1273. Yet Article III does at least require proof of a substantial likelihood that the defendant’s conduct caused plaintiffs injury in fact. See Utah v. Evans, 536 U.S. 452, 464, 122 S.Ct. 2191, 153 L.Ed.2d 453 (2002); Franklin v. Massachusetts, 505 U.S. 788, 803, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992); Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 74-78, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978).

As explained above, § 1-740 mаkes abortion providers. liable for any subsequent medical costs necessitated by an abortion that was performed without parental consent or knowledge. Okla. Stat. tit. 63, § 1-740. In addition to allowing certain minors the right to recover their post-abortion medical expenses, it appears that the statute also enables suits by medical facilities that incur certain treatment costs that their patients fail to reimburse.⁷

Nova has produced some evidence that the enactment of § 1-740 coerced it into requiring at least some sort of parental involvement prior to performing an abortion on a minor. In turn, there is evidence that Nova’s new policy made it imminent that it would lose some minor patients.⁸ However, the record is conspicuously silent with respect to how the particular defendants in this case might have affected Nova’s decision to demand parental consent or Nova’s resulting imminent lost patients injury, if at all.

We hold that Nova has failed to show the required causal connection between its injury and these defendants. First, there is no evidence that the defendants have done or have threatened to do anything that presents a substantial likelihood of causing Nova harm. Nova submitted evidence that its refusal to offer abortions absent parental consent was a response to the enactment of § 1-740, not a response to any actions of these particular public officials. Additionally, nothing in the record suggests that the conduct of any of these defendants substantially caused Nova tо stop offering abortions to minors without parental involvement. Therefore, it is at best merely speculative whether these defendants caused Nova’s decision to require parental consent, with a concomitant prospective loss of patients that flowed from that decision. The plaintiffs burden of demonstrating causation is not satisfied when “[speculative inferences are necessary to connect [its] injury to the challenged actions.” See Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 45-46, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976).

In other words, Nova has “confus[ed] the statute’s immediate coercive effect on the plaintiff! ] with any coercive effect that might be applied by the defendants.” See Okpalobi v. Foster, 244 F.3d 405, 426 (5th Cir.2001) (en banc) (emphasis in original) (holding that a state’s governor and attorney general were not proper defendants when they had no power to enforce the challenged statute). Nothing in the record distinguishes these particular defendants from anyone else who could possibly have a claim someday under § 1-740 (including, for example, minors themselves who might seek an abortion without parental notification and who might incur subsequent medical costs).

It may be true that these defendants potentially have the power to sue Nova under § 1-740, in the event that they happen to (1) incur medical costs (2) not reimbursed by the patient (3) that were required because of an abortion (4) performed by Nova (5) on a minor (6) without parental consent or knowledge. In this respect, § 1-740 is not unlike a multitude of other state tort laws under which these defendants might someday have a cause of action. Yet if these defendants’ latent power to litigate were enough to support standing, anyone who might someday have a claim under § 1-740 could be summoned preemptively before the federal courts to defend the constitutionality of that statute. Article III does not allow a plaintiff who wishes to challenge state legislation to do so simply by naming as a defendant anyone who, under appropriate circumstances, might conceivably have an occasion to file a suit for avid damages under the relevant state law at some future date.

Furthermore, it makes no difference in this case that each of the defendants are public officials sued in their official capacities. In Wilson v. Stocker, we noted that an official who is charged with enforcing a state statutе on behalf of the entire state is a proper defendant, so long as the plaintiff shows an appreciable threat of injury flowing directly from the statute. 819 F.2d 943, 947 (10th Cir.1987) (finding standing to sue the Oklahoma Attorney General to challenge a state criminal statute he was charged with enforcing). Other courts have reached similar conclusions. See Mobil Oil Corp. v. Attorney General of Va., 940 F.2d 73, 74-75, 76 n. 2 (4th Cir.1991) (finding standing to sue “the state’s enforcement officer (the Attorney General)” who had authority to enforce a petroleum franchise law by seeking “stiff civil remedies]”); Corporate Health Ins., Inc. v. Texas Dep’t of Ins., 215 F.3d 526, 532 (5th Cir.2000) (finding standing to sue the state Attorney General, who could enforce the challenged act on the state’s behalf through regulatory oversight responsibility, and noting that “[tjhis is not a case in which private suits are the only means of enforcing [the statute]”), abrogated on other grounds by Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355, 122 S.Ct. 2151, 153 L.Ed.2d 375 (2002).

In contrast, the defendants in this case are not charged with enforcing § 1-740 on Oklahoma’s behalf. Rather, they are simply able to bring a civil suit under that statute (along with any other potentially relevant state law) in their proprietary capacities as directors of certain public medical institutions. Wilson deals only with suits against “state enforcement officers” to challenge the laws they execute as a representative of the state. See Wilson, 819 F.2d at 947. Wilson did not vest all public officials with standing to litigate the constitutionality of any state legislation that might be the basis of a future lawsuit in which the state agency might be a civil litigant seeking compensatory damages.

In sum, although Nova has shown that it suffered an injury in fact, it has failed to demonstrate that its injury was caused by “the challenged action of the defendants], and not the result of the independent action of some third party not before the court.” Cf. Lujan, 504 U.S. at 560, 112 S.Ct. 2130 (quotation omitted). Therefore, Article III does not permit us to decide the merits of Nova’s claims.

C. Redressability

Article III further requires that the plaintiff demonstrate a substantial ‍‌‌‌‌‌​​​‌‌​‌​‌​‌​​‌​​​​‌​‌‌​‌​‌​​‌‌​‌​‌‌​‌​​‌‌‌​‍likelihood that the relief requested will redress its injury in fact. Ash Creek Mining Co. v. Lujan, 969 F.2d 868, 875 (10th Cir.1992). The plaintiff must show that a favorable judgment will relieve a discrete injury, although it need not relieve his or her every injury. Larson v. Valente, 456 U.S. 228, 243 n. 15, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982).

We hold that Nova has failed to show that a judgment against the defendants in this action would likely redress its lost patients injury. As noted above, the record contains evidence that the enactment of § 1-740 created the imminent possibility that Nova would be reasonably coerced into turning away prospective minor patients who would not obtain parental consent. Yet the record cannot support a conclusion that a judgment enjoining only these defendants from filing suit to recover damages under § 1-740 would redress that injury.

In this case, like many, “redressability and traceability overlap as two sides of a causation coin.” See Cache Valley Elec. Co. v. Utah Dep’t of Transp., 149 F.3d 1119, 1123 (10th Cir.1998) (quotation omitted). Even if these defendants were enjoined from seeking damages against Nova under § 1-740, there would still be a multitude of other prospective litigants who could potentially sue Nova under that act. Most significantly, a judgment in Nova’s favor would do nothing to prevent lawsuits against Nova by the minor patients who actually require subsequent medical care, or by any doctors or non-defendant hospitals and medical clinics who may treat them.

Consequently, nothing in the record suggests that a judgment against these defendants would materially reduce the coercive effect of § 1-740 that Nova claims prevented it from offering abortions to minors without parental consent. In turn, such a judgment would likely do nothing to prevent Nova from losing minor patients in the future, and thus would not be substantially likely to redress Nova’s injury in fact. See Essence, 285 F.3d at 1280 (at the summary judgment stage, mere allegations of redressability are not enough to support standing).

Finally, we reject Nova’s argument that a favorable declaratory judgment against these defendants would redress its injury by deterring other potential litigants from relying on § 1-740, even in state court. As an initial matter, Nova’s argument is entirely speculative. More fundamеntally, it overlooks the principle that it must be the effect of the court’s judgment on the defendant that redresses the plaintiffs injury, whether directly or indirectly. See Ash Creek Mining Co., 969 F.2d at 875 (the re-dressability inquiry looks to whether “the relief requested will redress the injury claimed”) (emphasis added); Cox v. Phelps Dodge Corp., 43 F.3d 1345, 1348 (10th Cir.1994) (“[W]hat makes a declaratory judgment action ‘a proper judicial resolution of a ‘case or controversy’ rather than an advisory opinion is the settling of some dispute which affects the behavior of the defendant toward the plaintiff.’ ”) (superceded by statute on other grounds) (emphasis added) (quoting Hewitt v. Helms, 482 U.S. 755, 761, 107 S.Ct. 2672, 96 L.Ed.2d 654 (1987)). “If courts may simply assume that everyone (including those who are not proper parties to an action) will honor the legal rationales that underlie their decrees, then redressability will always exist. Redress-ability requires that the court be able to afford relief through the exercise of its power, not through the persuasive or even awe-inspiring effect of the opinion explaining the exercise of its power.” Franklin v. Massachusetts, 505 U.S. 788, 825, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992) (Scalia, J., concurring) (emphasis omitted).⁹

For these reasons, we hold that a judgment against the defendants in this action would not be substantially likely to redress Nova’s lost patients injury.

CONCLUSION

Article Ill’s standing requirements guarantee that both plaintiffs and defendants have “such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.” See Duke Power Co., 438 U.S. at 72, 98 S.Ct. 2620 (quotation omitted).

Our decision that Nova's injury is not fairly traceable to the defendants in this action and not likely redressable by a judgment against these defendants reflеcts this fundamental policy. The incentives of these defendants-hospital directors and university administrators-to defend a politically divisive abortion statute is not particularly strong, at least at the present time when these defendants have no actual or imminent claims against Nova under the statute. Articte III sensibly requires the federal courts to refrain from determining the validity of that legislation until the issue reaches us as part of a genuine case or controversy between adverse parties-i.e., in a case presenting a claim of concrete and actual or imminent injury traceable to the named defendants which is redressable by the authority of a judgment against those defendants. No such case or controvеrsy is presented in this litigation.

We VACATE the judgment of the district court against the defendants in this appeal, and DISMISS for lack of standing.¹⁰

Notes

1 . Those voting in favor of en banc reconsideration were Judges Seymour, Briscoe, Murphy and Lucero. Judge Henry recused himself from this case and did not vote on the suggestion for en banc rehearing.

2 . Our opinion does not disturb the judgment against Mike Forgarty, a defendant below who did not appeal the judgment against him.

3 . Nova admits that it is unclear how many, if any, of these women ultimately returned and obtained an abortion at Nova with parental consent.

4 . Mike Fogarty, the CEO and Administrator of the Oklahoma Health Care Authority, was also a defendant in the proceedings before the district court. As noted in footnote 1, Fogarty has not appealed the judgment against him, and we therefore do not disturb that judgment.

5 . In Powder River Basin Res. Council v. Babbitt, we stated that a plaintiff had "lost standing” in the middle of a lawsuit. 54 F.3d 1477, 1484-85 (10th Cir.1995). Although we used standing terminology, it seems that this was really a mootness question. Other courts have criticized Powder River for using standing terminology for what was really a mootness issue. See Becker v. FEC, 230 F.3d 381, 386 n. 3 (1st Cir.2000).

6 . Any past injury would not be redressable by the prospective relief Nova has sought in this case. See San Diego County Gun Rights Comm. v. Reno, 98 F.3d 1121, 1126 (9th Cir.1996) ("Because plaintiffs seek declaratory and injunctive relief only ... it is insufficient for them to demonstrate only a past injury.”).

Additionally, Nova’s mere possible future exposure to civil liability under § 1-740 is too remote to constitute an actual or imminent injury in fact. Nova could only be subject to liability under § 1-740 if it performs an abortion on a minor without parental consent or knowledge, if that minor requires subsequent medicаl treatment because of that abortion, and if the minor does in fact obtain such treatment. Although such a chain of events would indeed be possible, any threat of this kind of injury is far from immediate.

7 . Absent any narrowing construction that the Oklahoma courts may ultimately provide, we follow the most literal reading of § 1-740 and assume that this statute provides a cause of action to post-abortion health providers as well as to the woman herself for all post-abortion medical expenses incurred as a result of the abortion.

8 . We note that, to a significant extent, Nova's injury was self-inflicted. Although § 1-740 applies only to abortions performed on minors without “parental consent or knowledge,” Nova responded by requiring all minors to obtain in-person parental consent. Under the plain language of § 1-740, a parental knowledge requirement would have avoided prospective civil liability under the statute just as well. It would have also likely reduced Nova's threat of lost patients, at least to some degree. See Ohio v. Akron Ctr. for Reproductive Health, 497 U.S. 502, 511, 110 S.Ct. 2972, 111 L.Ed.2d 405 (1990) (recognizing that a parental consent requirement is ‍‌‌‌‌‌​​​‌‌​‌​‌​‌​​‌​​​​‌​‌‌​‌​‌​​‌‌​‌​‌‌​‌​​‌‌‌​‍more intrusive than a parental notification requirement).

"At some point, standing may be denied because the injury seems solely&emdash;or almost ■ solely&emdash;attributable the plaintiff.... Stand- ing is defeated only if it is concluded that the injury is so completely due to the plaintiff's own fault as to break the causal chain.” 13 Fed. Prac. & Proc-. Juris.2d § 3531.5, Causation (2004); see also Pennsylvania v. New Jersey, 426 U.S. 660, 664, 96 S.Ct. 2333, 49 L.Ed.2d 124 (1976) ("No [party] can be heard [party] can be heard to complain about damage inflicted by its own hand.”); Rodos v. Michaelson, 527 F.2d 582, 584-85 (1st Cir.1975) (no standing when injury was caused by plaintiffs' unreasonable overreaction to an abortion statutе); Petro-Chem Processing, Inc. v. EPA, 866 F.2d 433, 438 (D.C.Cir.1989) (addressing the self-inflicted nature of an injury under the rubric of causation).

For other reasons, as explained below, Nova failed to demonstrate the required causal connection between its injury and the defendants in this action. Therefore, it is not necessary for us to address here whether Nova's overreaction to § 1-740 would have broken a properly established causal chain.

9 . The Supreme Court’s decisions in Franklin v. Massachusetts, 505 U.S. 788, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992) (plurality) and Utah v. Evans, 536 U.S. 452, 122 S.Ct. 2191, 153 L.Ed.2d 453 (2002) are not to the contrary. In those cases, the Court held that judgments against the Secretary of Commerce requiring issuance of a modified census report would likely redress certain apportionment-related injuries, even though it ultimately was the President's duty to transmit apportionment results to Congress. Franklin, 505 U.S. at 800, 803, 112 S.Ct. 2767; Evans, 536 U.S. at 463-64, 122 S.Ct. 2191. As the Court explained in Evans, re dress is likely under such circumstances because a court could compel the Secretary to substitute a new • census report for the old one, and consequent apportionment-related steps would be purely mechanical. Evans, 536 U.S. at 463-64, 122 S.Ct. 2191. "[I]n terms of our 'standing' precedent, the courts would have ordered a change in a legal status (that of the 'report'), and the practical consequence of that change would amount to a significant increase in the likelihood that the plaintiff would obtain relief.” Id. at 464, 122 S.Ct. 2191; see also id. at 461, 122 S.Ct. 2191. In contrast, there is no relationship between these defendants and the myriad of other parties who might assert claims against Nova under § 1-740 and nothing in the record to suggest any significant likelihood that other potential litigants would consider themselves bound by a judgment to which they were not parties.

10 . The dissent, in Footnote 3, suggests that we failed to address third-party standing. However, third-party standing is a prudential doctrine that is addressed only after the ''irreducible minimum" of Constitutional standing is satisfied. See Singleton v. Wulff, 428 U.S. 106, 112-18, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) (noting that third-party standing is prudential and that the plaintiff must still establish constitutional standing). Because we find Nova lacks Constitutional standing, we are not required to address Nova’s standing, as a third-party, to assert the rights of its minor patients.

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Concurrence Opinion

BRISCOE, Circuit Judge,

concurring & dissenting:

I concur in the majority’s conclusion that Nova has failed to demonstrate Article III standing for its claim seeking in-junctive relief. I respectfully dissent, however, from the majority’s conclusion that Nova lacks standing to pursue its claim for declaratory relief. In my view, Nova has shown that the conduct of these defendants is causally connected to Nova’s injury and, further, that our deсlaring § 1-740 unconstitutional would redress its injuries.

To establish Article III standing, a litigant must show it has suffered an injury-in-fact, that the injury is fairly traceable to the defendant’s allegedly unlawful conduct, and that the injury is likely to be redressed by the requested relief. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Here, as the majority correctly concludes, it is clear Nova has demonstrated an injury-in-fact (“Nova faced an imminent likelihood that it would lose some minor patients seeking abortions.” Maj. Op. at 1155.).

The majority correctly states that, to prove causation, a plaintiff must show his or her injury is “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.” Lujan, 504 U.S. at 560, 112 S.Ct. 2130 (emphasis added). However, the majority applies a heightened standard to determine if Nova has еstablished causation, stating, “Article III does at least require proof of a substantial likelihood that the defendant’s conduct caused plaintiffs injury in fact.” Maj. Op. at 1156 (emphasis added). The majority concludes Nova cannot establish causation because Nova is unable to show “the required causal connection between its injury and these defendants” because “there is no evidence that defendants have done or have threatened to do anything that presents a substantial likelihood of causing Nova harm.” Id. at 14 (emphasis added). Further, the majority views Nova’s suing of state officials in their official capacities as irrelevant to the causation analysis because § 1-740 does not explicitly charge these defendants with enforcement of § 1-740. The majority reasons that, since these defendants are not responsible for enforcing § 1-740, Nova’s injuries are not fairly traceable to them.

I find no support for the majority’s conclusion that Nova must show a “substantial likelihood” that defendants’ conduct caused Nova’s injuries in this case. The reason this conclusion lacks support is apparent. In a case such as this where the plaintiff seeks pre-enforcement review of a statute’s constitutionality, it is often the case that the defendant has not enforced (or even threatened to enforce) the statute. As this court explained in Wilson v. Stocker, 819 F.2d 943, 947 (10th Cir.1987), the lack of enforcement alone does not prevent a plaintiff from proving causation.

[T]he Supreme Court has often found a case or controversy between a plaintiff challenging thе constitutionality of a statute and an enforcement official who has made no attempt to prosecute the plaintiff under the law at issue. In Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), the Court found a justiciable controversy between doctors subject to prosecution under criminal abortion statutes and the state attorney general, “despite the fact that the record does not disclose that any one of [the doctors] has been prosecuted, or threatened with prosecution.” ... [I]n Diamond v. Charles, 476 U.S. 54, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986), the Court stated that “the conflict between state officials empowered to enforce a law and private parties subject to prosecution under that law is a classic ‘case’ or ‘controversy’ within the meaning of Art. III.” Id.

The legal principle underlying these decisions is the familiar doctrine that “[a] suit against a state officer in his official capacity is, of course, a suit against the State.” Thus a controversy exists not because the state official is himself a source of injury, but because the official represents the state whose statute is being challenged as the source of injury.

Wilson, 819 F.2d at 946-47 (internal citations omitted). To require that a plaintiff seeking to prove causation must first show that there was a substantial likelihood that defendants caused plaintiffs injury abandons this line of cases, which directly address standing in the context of declaratory judgment actions. This result forces Nova to confront the Hobson’s choice the Declaratory Judgment Act was intended to prevent: impose a parental involvement requirement thаt may potentially harm its patients, or face unlimited strict civil liability. See Okpalobi v. Foster, 244 F.3d 405, 435 (5th Cir.2001) (Benavides, J., concurring in part and dissenting in part).¹

I also disagree with the majority’s conclusion that these defendants are somehow improper defendants because they are not directly charged with enforcement of the statute. Nova seeks declaratory relief. As the majority correctly notes, “a plaintiff challenging the constitutionality of a state statute has a sufficiently adverse legal interest to a state enforcement officer sued in his representative capacity to create a substantial controversy when ... the plaintiff shows an appreciable threat of injury flowing directly from the statute." Id. at 947 (emphasis added); see also Planned Parenthood v. Wasden, 376 F.3d 908, 919 (9th Cir.2004) (noting the fact that defendants, attorney general and county prosecutor wеre empowered to enforce Idaho parental consent statute was sufficient to establish causation); Planned Parenthood v. Farmer, 220 F.3d 127, 147 (3d Cir.2000) (noting because Pennsylvania’s partial birth abortion ban was “so vague as to be impervious to a readily susceptible narrowing construction, [and thus] effectuated] a ban on the conventional types of abortions,” the act by its existence presented an imminent injury which was more than fairly traceable to the state’s potential enforcement of the act). In this case, Nova claims, and the majority agrees, that the statute’s mere existence presents an “appreciable threat of injury” based on the fact minors will not obtain abortions from Nova as a result of § 1-740. Therefore, as I read Wilson, whether Nova has established its injury is causally related to these ‍‌‌‌‌‌​​​‌‌​‌​‌​‌​​‌​​​​‌​‌‌​‌​‌​​‌‌​‌​‌‌​‌​​‌‌‌​‍defendants sued in their official capacities turns on whether § 1-740 authorizes these defendants to sue Nova on behalf of the state — and clearly it does.

Section 1-740 provides: “Any person who performs an abortion on a minor without parental consent or knowledge shall be liable for the cost of any subsequent medical treatment such minor might require because of the abortion.” Okla. Stat. Ann. tit. 63, § 1-740. On its face, the statute creates liability for an abortion provider who performs an abortion on a minor without parental consent for any subsequent medical treatment the minor may require because of the abortion, but it places no limitations on the class of potential plaintiffs that may sue abortiоn providers to recover those medical expenses. Thus, unlike the statutes at issue in Hope Clinic v. Ryan, 249 F.3d 603 (7th Cir.2001) (limiting right to sue to maternal grandparents of aborted fetus), and Okpalobi v. Foster, 244 F.3d 405 (5th Cir.2001) (limiting right to sue to mother of aborted fetus), § 1-740 does not provide a remedy for only private individuals. Similarly, unlike the statute at issue in Wasden (establishing civil and criminal penalties for abortion providers who perform abortions without parental consent), and Farmer (instituting civil fines for abortion providers who perform partial birth abortions), § 1-740 does not provide a remedy enforceable by only public entities. Rather, § 1-740 permits both public and private entities to file suit. Section 1-740 permits anyone who pays for “subsequent medical treatment”— whether that person or entity is the State of Oklahoma or the grandmother of an aborted fetus- — to sue an abortion provider. I read § 1-740 as authorizing any state official to sue an abortion provider on behalf of the state to recover for a minor’s subsequent medical expenses.

Here, Nova seeks declaratory relief against four state officials sued in their official capacities, each of whom is authorized by § 1-740 to sue Nova for costs the State of Oklahoma incurs on behalf of minors who obtain abortions from'Nova without parental consent. Nova decided to stop providing abortions to minors who did not have parent consent based on its fear that Oklahoma state officials, acting in their official capacities, would attempt to recover under § 1-740.² Because Nova’s injury-in-fact is fairly traceable to its fear that these defendants might enforce the statute, I conclude Nova has sufficiently demonstrated causation vis-á-vis these defendants.

To establish redressability, a plaintiff must show it is likely that a favorable court decision will redress the injury to the plaintiff. See Lujan, 504 U.S. at 560, 112 S.Ct. 2130. Nova seeks a declaratory judgment, stating § 1-740 is unconstitutional because it is facially vague. The majority reasons that a favorable declaratory judgment will not redress Nova’s injuries because, even if we declare § 1-740 unconstitutional, that declaration is only valid against these four defendants. Therefore, the majority concludes Nova lacks standing because it is unable to obtain a'declaration as to the statute’s constitutionality against every potential party that might use § 1-740 to sue Nova. I disagree.'

A plaintiff seeking declaratory relief establishes redressability if the practical consequence of a declaration “would amount to a significant increase in the likelihood that the plaintiff would obtain relief thаt directly redresses the injury suffered.” Utah v. Evans, 536 U.S. 452, 464, 122 S.Ct. 2191, 153 L.Ed.2d 453 (2002); see also Franklin v. Massachusetts, 505 U.S. 788, 803, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992) (stating “we may assume it is substantially likely that the President and other executive and congressional officials would abide by an authoritative interpretation of the census statute and constitutional provision by the District Court, even though they would not be directly bound by such a determination”); Duke Power, 438 U.S. at 75 n. 20, 98 S.Ct. 2620 (“Our recent cases have required no more than a showing that there is a ‘substantial likelihood’ that the relief requested will redress the injury claimed.”). As regards the present case, we may assume future parties that would sue under § 1-740 “will give full credence” to a decision by this court that the statute is unconstitutional. Roe v. Wade, 410 U.S. 113, 166, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) (refusing to address propriety of injunctive relief on basis that declaratory relief sufficiently redressed plaintiffs’ injury)-

Nova has been injured by the fаct that, as a result of enactment of § 1-740, it has faced an imminent likelihood that it would lose some patients who are minors seeking abortions. The relief Nova requests is a declaration that § 1-740 is unconstitutional because it is so vague that it violates due process. If we declare § 1-740 unconstitutional, there is a substantial likelihood that the precedential value of our opinion will prevent future parties from attempting to recover under § 1-740. Nova will be able to offer abortions to minors without the fear that parties will use § 1-740 to sue Nova. Thus, the declaration Nova requests sufficiently redresses Nova’s injury by granting it a substantial basis for confidence in the legality of its conduct. See Roe, 410 U.S. at 166, 93 S.Ct. 705.

Because Nova has demonstrated an injury-in-fact, cаusation, and redressability, I conclude Nova has standing in its individual capacity to sue defendants Gandy, Cline, Halligan, and Boren.³ I would proceed to address defendants’ claim that they are immune from suit under the Eleventh Amendment and, if defendants were found not to be immune, to address the merits of Nova’s claim.⁴

1 . The present case and Okpalobi differ in two very important respects: the state officials sued here have the power and authority to assert claims under the challenged statute, and the Fifth Circuit in Okpalobi was addressing injunctive relief only, not declaratory relief. See 244 F.3d at 410, 425 n. 33.

2 . To state that Nova's response to § 1-740 was to a significant extent "self-inflicted” and an "overreaction,” Maj. Op. at 1156 - 1157, n. 7, is disingenuous. When faced with potential civil liability for post-abortion medical expenses necessitated by an abortion performed without parental consent or knowledge, Nova logically responded by requiring in-person parental consent so it could prove parental consent or knowledge when sued.

3 . Because I conclude Nova has standing to sue defendants in its individual capacity, I do not reach the issue of' whether Nova has third-party standing to sue on behalf of its patients. The majority's dismissal of Nova’s claims for lack of standing fails to address this asserted ground for standing.

4 . I share the majority's concern that some of the defendants might be improper insofar as they are not likely to enforce § 1-740. However, given the statute's unusually broad language, it is not our task to determine as part of the standing analysis whether the defendant state officials actually would enforce the act. To the extent the defendants here are unlikely to enforce § 1-740, I would address that issue as part ‍‌‌‌‌‌​​​‌‌​‌​‌​‌​​‌​​​​‌​‌‌​‌​‌​​‌‌​‌​‌‌​‌​​‌‌‌​‍of the Eleventh Amendment analysis.

Case Details

Case Name: Nova Health Systems v. Fogarty

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Jul 20, 2005

Citations: 416 F.3d 1149; 2005 WL 1685395; 2005 U.S. App. LEXIS 14910; 02-5094

Docket Number: 02-5094

Court Abbreviation: 10th Cir.