#### Todd C. BANK, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, Eric D. Hargan, in his official capacity as Secretary of the United States Department of Health and Human Services,* Steven T. Mnuchin, in his official capacity as Secretary of the United States Department of the Treasury. Defendants-Appellees.

17-686

United States Court of Appeals, Second Circuit.

January 12, 2018

FOR PLAINTIFF-APPELLANT: Todd C. Bank, pro se, Kew Gardens, NY.

*44FOR DEFENDANTS-APPELLEES: Chad A. Readier, Acting Assistant Attorney General, Washington, DC, Mark B. Stern, Alisa B. Klein, Attorneys, Appellate Staff, Washington, DC, and Richard P. Donoghue, Acting United States Attorney for the Eastern District of New York, Brooklyn, NY.

PRESENT: GUIDO CALABRESI, RICHARD C. WESLEY, DENNY CHIN, Circuit Judges.

Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Eric D. Hargan is automatically substituted for former Secretary of the United States Department of Health and Human Services Thomas E. Price.

SUMMARY ORDER

Plaintiff-appellant Todd C. Bank, an attorney proceeding *pro se,*appeals from the district court’s judgment dismissing his complaint challenging the constitutionality of 26 U.S.C. § 6000A, a provision of the Patient Protection and Affordable Care Act (“ACA”) that requires individuáis to pay a tax if they do not maintain minimum essential health coverage. Bank argued that § 5000A violated both his constitutional right to forgo purchasing health coverage and the Origination Clause, which requires that all bills for raising revenue originate in the House of Representatives. The district court reasoned that there is no constitutional right to forgo purchasing health coverage and that § 5000A was not a “bill for raising revenue” subject to the requirements of the Origination Clause. U.S. Const. art. I, § 7, cl. 1. We assume the parties’ familiarity with the underlying facts, procedural history of the case, and issues on appeal.

We review *de novo*the district court’s grant of a motion to dismiss for failure to state a claim, “accepting all factual allegations as true and drawing all reasonable inferences in favor of the plaintiff.” *Trs. of Upstate N.Y. Eng’rs Pension Fund v. Ivy Asset Mgmt.,*843 F.3d 561, 566 (2d Cir. 2016) (citation omitted). Furthermore, we are free to affirm on any ground supported in the record. *Thyroff v. Nationwide Mut. Ins. Co.,*460 F.3d 400, 405 (2d Cir. 2006). Although *pro se*litigants are generally entitled to special solicitude, Bank is not because he is an attorney. *See Tracy v. Freshwater,*623 F.3d 90, 101-02 (2d Cir. 2010).

Here, Bank lacked constitutional standing to challenge § 5000A and, thus, the district court lacked subject matter jurisdiction. *See Ins. Corp, of Ir., Ltd. v. Compagnie des Bauxites de Guinee,*456 U.S. 694, 702, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982) (“Subject-matter jurisdiction ... is an Art. Ill as well as a statutory requirement.”). To have Article III standing, a plaintiff must establish that he suffered an injury in fact that is causally connected to the challenged conduct, and is likely to be redressed by a favorable decision. *Crupar-Weinmann v. Paris Baguette Am., Inc.,*861 F.3d 76, 79 (2d Cir. 2017) (citing *Lujan v. Defs. of Wildlife,*504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). An injury in fact must be “concrete and particularized,” meaning that it affects the plaintiff in a personal and individual way and is not abstract, and is “actual or imminent, not conjectural or hypothetical.” *Spokeo, Inc. v. Robins,*— U.S. -, 136 S.Ct. 1540, 1548, 194 L.Ed.2d 635 (2016) (quoting *Lujan,*504 U.S. at 560, 112 S.Ct. 2130).

Bank has not demonstrated that he suffered an injury in fact. He currently maintains qualified coverage and does not have to pay § 5000A’s “shared responsibility payment.” Furthermore, he concedes that he is not at imminent risk of owing the shared responsibility payment, and he has not plausibly alleged that he plans to drop his current coverage and become uninsured or obtain non-qualified coverage.

While we conclude that Bank lacks standing, dismissal for subject matter jurisdiction must be without prejudice, and here the district court granted the defendants’ motion to dismiss the complaint with prejudice. *See Hernandez v. Conriv*
      *45
      *Realty Assocs.,*182 F.3d 121, 128 (2d Cir. 1999). Accordingly, the case must be remanded for the district court to enter an order dismissing without prejudice.

We have considered Bank’s remaining arguments and find them to be without merit. Accordingly, we VACATE the judgment and REMAND with instructions to the district court to enter a judgment of dismissal without prejudice.