Peter KINDER, Missouri Lieutenant Governor; Dale Morris; Samantha Hill; Julie Keathley; M.K., Plaintiffs-Appellants, v. Timothy F. GEITHNER, Secretary of the United States Department of Treasury; Hilda Solis, Secretary of the United States Department of Labor; Eric H. Holder, Jr., United States Attorney General; Kathleen Sebelius, Secretary of the United States Department of Health and Human Services, Defendants-Appellees.
No. 11-1973
United States Court of Appeals, Eighth Circuit
Submitted: Oct. 20, 2011. Filed: Oct. 4, 2012.
695 F.3d 772
State of Alabama; State of Alaska; State of Arizona, et al., Amici on Behalf of Appellant, American Association of People with Disabilities; Families USA; Friends of Cancer Research; March of Dimes Foundation, et al., Amici on Behalf of Appellee.
Eaton argues in its reply brief that the district court should have exercised supplemental jurisdiction over his state law claim under ACRA and adjudicated it on the merits. Since Eaton did not cross appeal, we will not consider its argument which would have the effect of “enlarging [Eaton‘s] own rights or of lessening the rights of [Shrable].” El Paso Nat. Gas Co. v. Neztsosie, 526 U.S. 473, 479, 119 S.Ct. 1430, 143 L.Ed.2d 635 (1999).
Accordingly, we affirm the district court‘s judgment.
Mark F. Hearne, II, argued, St. Louis, MO, Lindsay S.C. Brinton, St. Louis, MO, Robert C. O‘Brien and Steven A. Haskins, Los Angeles, CA, on the brief, for appellant.
Beth S. Brinkmann, argued, Mark B. Stern, Alisa Beth Klein, and Dana Kaersvang, on the brief, Washington, DC, for appellee.
Paul D. Clement, Erin E. Murphy, Washington, DC, Scott D. Makar, Bill Cobb, James D. Blacklock, Austin, TX, Scott D. Makar, Joseph W. Jacquot, Louis F. Hubener, Timothy D. Osterhaus, Blain H. Winship, Tallahassee, FL, Luther Strange, Montgomery, AL, John J. Burns, Juneau, AK, Joseph Sciarrotta, Jr., Michael Tryonof, Phoenix, AZ, John W. Suthers, Denver, CO, Samuel S. Olens, Atlanta, GA,
Brian S. Koukoutchos, Mandeville, LA, Charles J. Cooper, David H. Thompson, Washington, DC, on the amicus brief in support of appellants for Executive and Legislative Officials of States Within the Eighth Circuit.
Rochelle Bobroff, Simon Lazarus, Washington, DC, on the amicus brief in support of appellees for The American Association of People with Disabilities, The ARC of the United States, Families USA, Friends of Cancer Research, March of Dimes Foundation, Mental Health America, National Breast Cancer Coalition, National Organization for Rare Disorders, and The National Senior Citizens Law Center.
M. Sean Laane, Richard L. Rosen, Michael D. Thorpe, Washington, DC, on the amicus brief in support of appellees for Economic Scholars.
Ian Millhiser, Washington, DC, on the amicus brief in support of appellees for American Nurses Association, American Academy of Pediatrics, American Medical Student Association, Doctors for America, National Hispanic Medical Association, and the National Physicians Alliance.
Barry Friedman, New York, NY, Jeffrey A. Lamken, Robert K. Kry, Martin V. Totaro, Lucas M. Walker, Washington,
Thomas M. O‘Brien, Danial J. Hammond, Boston, MA, on the amicus brief in support of appellees for The Commonwealth of Massachusetts.
Gillian E. Metzger, Trevor W. Morrison, New York, NY, Andrew J. Pincus, Charles A. Rothfeld, Michael B. Kimberly, Paul W. Hughes, Washington, DC, on the amicus brief in support of appellees for Constitutional Law Professors Jack M. Balkin, Gillian E. Metzger, and Trevor W. Morrison.
John B. Howard, Jr., William F. Brockman, Stephen M. Ruckman, Joshua N. Auerbach, Baltimore, MD, Kamala D. Harris, Sacramento, CA, George Jepsen, Hartford, CT, Joseph R. Biden, III, Wilmington, DE, Irvin B. Nathan, Washington, DC, David M. Louie, Honolulu, HI, Tom Miller, Des Moines, IA, Eric T. Schneiderman, New York, NY, John R. Kroger, Salem, OR, William H. Sorrell, Montpelier, VT, on the amicus brief in support of appellees for The States of Maryland, California, Connecticut, Delaware, Hawaii, Iowa, New York, Oregon and Vermont, and the District of Columbia.
Patrick J. Szymanski, Washington, DC, on the amicus brief in support of appellees for Change to Win.
Judith A. Scott, Walter Kamiat, Mark Schneider, Washington, DC, on the amicus brief in support of appellees for Service Employees International Union.
Johnathan Weissglass, Jennifer Sung, P. Casey Pitts, San Francisco, CA, on the amicus brief in support of appellees for Service Employees International Union and Change to Win.
Before BYE, SMITH, and COLLOTON, Circuit Judges.
A group of seven plaintiffs, including Samantha Hill and Missouri Lieutenant Governor Peter Kinder (acting in his personal capacity), brought this action to challenge various provisions of the Patient Protection and Affordable Care Act (“the Act“),
I.
Hill and Kinder filed a lawsuit challenging, among other things, the Act‘s individual mandate. On appeal, they pursue two claims that were raised in their amended complaint: (1) that Congress exceeded its authority under the Commerce Clause and the taxing power when it promulgated the mandate, and (2) that the mandate violates the Due Process Clause of the Fourteenth Amendment by abrogating their rights under the Missouri Health Care Freedom Act, which provides that “[n]o law or rule shall compel, directly or indirectly, any person, employer, or health care provider to participate in any health care system.”
The mandate, of course, was the subject of the Supreme Court‘s recent decision in National Federation of Independent Business v. Sebelius, — U.S. —, 132 S.Ct. 2566, 183 L.Ed.2d 450 (2012). The provision at issue requires individuals to maintain “minimum essential” health care coverage.
The government moved to dismiss the suit, arguing that the district court lacked subject matter jurisdiction and that the complaint failed to state a claim upon which relief could be granted. Hill and Kinder opposed the motion and filed supplemental affidavits with their response. The district court, citing Osborn v. United States, 918 F.2d 724, 729 n. 6 (8th Cir. 1990), reasoned that because the government‘s motion was a “facial attack” on subject matter jurisdiction, the court should consider only the pleadings. It therefore declined to consider the affidavits. But cf. Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975).
The district court ruled that neither Hill nor Kinder had standing to sue and dismissed the complaint for lack of jurisdiction. Hill‘s complaint, as recounted by the court, was that she desires to obtain only high-deductible “major medical” or “catastrophic” health insurance coverage, but that the Act “allows citizens to maintain catastrophic plans only if an individual is under 30 years of age and certifies that his or her premium payment is more than eight percent of his or her household income.” Am. Compl. ¶ 140. The district court concluded that Hill‘s complaint misunderstands the statute. Whereas Hill asserted that she could purchase a catastrophic plan only if she is under the age of thirty and meets the test of financial hardship, the statute connects the two criteria with “or” and provides that she need only satisfy one.
Hill and Kinder filed a notice of appeal to this court before Sebelius was decided. They disputed the district court‘s ruling on standing and argued on the merits that the individual mandate violates the Federal Constitution. Shortly after this case was argued and submitted, the Supreme Court granted certiorari in Sebelius. We held this appeal pending a decision, and the Supreme Court upheld the individual mandate as a constitutional exercise of Congress‘s taxing power. Sebelius, 132 S.Ct. at 2594-2600.
After the Court‘s decision, we asked the parties to supplement their briefs with a statement of position on this appeal in light of Sebelius. Hill and Kinder continue to pursue their appeal, although it is unclear what relief they now seek. The amended complaint asked the court to declare provisions of the Act unconstitutional and to enjoin the defendants from enforcing those sections against the plaintiffs. The supplemental brief filed by Hill and Kinder in light of Sebelius does not specifically urge those remedies or any other that we can readily discern. The government responds that if the plaintiffs have standing, then the judgment should be affirmed based on Sebelius.
II.
The district court dismissed the suit on the ground that the plaintiffs lack standing. Although the Supreme Court recently addressed the constitutionality of the Act in Sebelius, we are obliged first to consider our jurisdiction. For the reasons that follow, we conclude that the district court correctly ruled that Hill and Kinder lacked standing to sue, and we therefore affirm on that basis.
Article III requires that a plaintiff must have suffered an injury-in-fact as an essential element of standing. Injury-in-fact means an actual or imminent invasion of a concrete and particularized legally protected interest. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The requisite injury “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, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) (internal quotations and citations omitted).
Hill and Kinder do not dispute the district court‘s decision to resolve the standing question based solely on the allegations in their amended complaint. In other words, they “do not premise their appeal on the trial court restricting its review to the amended complaint.” Appellants’ Br. 22 n. 5. The appellants urge this court, however, to incorporate their supplemental affidavits for the first time on appeal. We decline to consider them, because Hill and Kinder must show that they “met the challenge to their standing at the time of judgment.” Summers v. Earth Island Inst., 555 U.S. 488, 495 n. *, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009). They do not challenge the district court‘s decision to resolve standing based on the amended complaint, so we review the question based on the same record.
We agree with the district court that the amended complaint does not allege that Hill suffered an Article III injury-in-fact. As we read the amended complaint, Hill allegedly was injured because she “desires to obtain only high-deductible
Hill contends that the district court‘s analysis is based on a misreading of the amended complaint, and that she alleged a different injury. Hill asserts that her claim of injury is that she does not want to purchase any insurance plan, including a catastrophic plan, that would satisfy the requirements of the Act. On this reading, the allegation in paragraph 138 of the amended complaint that Hill “desires to obtain only high-deductible ‘major medical’ or ‘catastrophic’ health insurance coverage” referred to a type of major-medical, catastrophic coverage that was available before the passage of the Act, not to the catastrophic plans defined by the Act.
Hill‘s present argument advances an unnatural reading of the amended complaint, and the district court did not err by failing to discern it. Hill alleged in paragraph 138 that she “desires to obtain only high-deductible ‘major medical’ or ‘catastrophic’ health insurance coverage.” Am. Compl. ¶ 138 (emphasis added). She placed the word “catastrophic” in quotation marks, thus naturally leading the court to conclude that it was a term drawn from the Act. See
In response to the district court‘s ruling, Hill asserts that “‘catastrophic’ health insurance coverage” in paragraph 138 means one thing (a pre-Act “catastrophic” plan), while “catastrophic plans” in paragraph 140 means something else (the “catastrophic plans” defined by
Hill also relies on paragraph 141 of the amended complaint, which alleges that the Act “requires [her] to purchase a health insurance policy that includes, inter alia, coverage in the following categories: ambulatory patient services, maternity and newborn care, mental health and substance use disorder services, prescription drugs, laboratory services, and pediatric services
When the complaint ultimately alleged injury in paragraph 144, it asserted that “[a]s the provisions referenced above provide,” Hill is “denied the option of purchasing [a] high-deductible, major medical, health insurance policy,” and is instead required to purchase a more expensive plan that she does not want. Id. ¶ 144. This allegation harks back to the dichotomy established in paragraph 140 between citizens whom the Act allows “to maintain catastrophic plans” under
Kinder also failed to allege an injury-in-fact. Nowhere in the amended complaint does Kinder assert that he will be uninsured or lack “minimum essential coverage” when this portion of the Act takes effect in January 2014. He therefore did not allege that the Act‘s individual mandate or minimum coverage provisions would injure him.
Because neither Hill nor Kinder pleaded sufficient facts to establish an injury-in-fact, both plaintiffs lack standing to sue, and there is no Article III case or controversy. The judgment of the district court is affirmed.
COLLOTON
CIRCUIT JUDGE