2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-3-2011

NJ Physicians v. President USA

Precedential or Non-Precedential: Precedential

Docket No. 10-4600

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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.
2

(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 
3

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. 
4

 

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 Act1are 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. 
5

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 
6

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).
7

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 federalcourt 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 
8

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”), 
9

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. 
10

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
11

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.
12

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. 
13

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. 
14

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.
15

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.