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. e du/thir dc ir c uit_2002/108Filed February 6, 2002

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 00-3403

PENNSYLVANIA PSYCHIATRIC SOCIETY, Appellant

v.

GREEN SPRING HEALTH SERVICES, INC.;
MAGELLAN HEALTH SERVICES, INC.; HIGHMARK, INC.; KEYSTONE HEALTH PLAN WEST, INC.; KEYSTONE HEALTH PLAN CENTRAL, INC.; KEYSTONE HEALTH PLAN EAST, INC.

On Appeal from the United States District Court for the Western District of Pennsylvania

D.C. Civil Action No. 99-cv-00937 (Honorable Gary L. Lancaster)

Argued October 31, 2000

Before: SCIRICA, NYGAARD and BARRY, Circuit Ju dges

(Filed: February 6, 2002)

PHILIP H. LEBOWITZ, ESQUIRE (ARGUED) Pepper Hamilton 3000 Two Logan Square

18th and Arch Streets Philadelphia, Pennsylvania 19103

Attorney for AppellantJOHN R. LEATHERS, ESQUIRE

(ARGUED) Buchanan Ingersoll One Oxford Centre, 20th Floor

301 Grant Street Pittsburgh, Pennsylvania 15219

Attorney for Appellees, Green Spring Health Services, Inc. and Magellan Health Services, Inc.

GERRI L. SPERLING, ESQUIRE Springer Bush & Perry Two Gateway Center, 15th Floor Pittsburgh, Pennsylvania 15222

Attorney for Appellees, Highmark, Inc. and Keystone Health Plan West, Inc.

CARLETON O. STROUSS, ESQUIRE Kirkpatrick & Lockhart Payne-Shoemaker Building

240 North Third Street Harrisburg, Pennsylvania 17101

Attorney for Appellee, Keystone Health Plan Central, Inc.

THOMAS S. BIEMER, ESQUIRE JOHN J. HIGSON, ESQUIRE

Dilworth Paxson

3200 The Mellon Bank Center

1735 Market Street Philadelphia, Pennsylvania 19103

Attorneys for Appellee, Keystone Health Plan East, Inc.

2RICHARD D. RASKIN, ESQUIRE

Sidley Austin Brown & Wood

10 South Dearborn Street Chicago, Illinois 60603

Attorney for Amici Curiae- Appellant, The American Medical Association and Pennsylvania Medical Society

OPINION OF THE COURT

SCIRICA, Circuit Judge.

The Pennsylvania Psychiatric Society sued several managed health care organizations on behalf of its member psychiatrists and their patients. The gravamen of i ts complaint was that the managed health care organiza tions impaired the quality of health care provided by psychiatrists to their patients by refusing to auth orize necessary psychiatric treatment, excessively burden ing the reimbursement process and impeding other vital care

.

The principal issue on appeal is whether the Pennsylvania Psychiatric Society has properly plead ed associational and third-party standing. Finding the Society would require significant individual participation to establish its member psychiatrists' claims, the Dis trict Court dismissed its complaint for lack of associati onal standing.1 The District Court also found the Societ y's member psychiatrists lacked third-party standing to pursue their patients' claims. As an alternative ground fo r dismissal, the District Court held the mandatory ar bitration provision in the psychiatrists' contracts barred th e Society from advancing their members' claims in court.

We believe the District Court's dismissal under Fed . R. Civ. P. 12(b)(6) was premature. For this reason, we will vacate and remand for further proceedings.

___________________________________________________ ______________

1. The District Court adopted the Magistrate Judge' s Report and

Recommendation in full.

3I.

The District Court had subject matter jurisdiction under 28 U.S.C. S 1331 because certain claims asserted by the Pennsylvania Psychiatric Society arose under the Em ployee Retirement Income Security Act of 1974 ("ERISA"), 2 9 U.S.C. SS 1001-1461.2 We have jurisdiction under 28 U.S.C.

S 1291.

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2. The case was removed from state court under ERIS A's civil enforcement provision, S 502(a)(1)(b), which preemp ts state court jurisdiction for claims by a plan participant "to r ecover benefits due to him under the terms of his plan, to enforce his rig hts under the terms of the plan, or to clarify his rights to future ben efits under the terms

of the plan." 29 U.S.C. S 1132(a)(1)(B); Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 66 (1987); Pilot Life Ins. Co. v. Dede aux, 481 U.S. 41, 56 (1987).

To discern which claims are preempted, "we embraced a distinction between claims pertaining to the quality of the med ical benefits provided to a plan participant [that is, not preempted] and claims that the plan participant was entitled to, but did not receive, a certain quantum of benefits under his or her plan [that is, preempted] ." In re U.S. Healthcare, Inc., 193 F.3d 151, 162 (3d Cir. 1999) (citing Duk es v. U.S. Healthcare, Inc., 57 F.3d 350, 357-58 (3d Cir. 1995)), cert. de nied sub nom., U.S. Healthcare, Inc. v. Bauman, 530 U.S. 1242 (2000). E xplaining this distinction in the Supreme Court's lexicon, we rece ntly restated our position that "challenges [to] the administration o f or eligibility for benefits [i.e., quantity] . . . fall[ ] within the scope of S 502(a) and [are] completely preempted . . . ." Pryzbowski v. U.S. He althcare, Inc., 245 F.3d 266, 273 (3d Cir. 2001). To this end, claims a gainst HMO policies that purportedly delay care "fall within the realm of the administration

of benefits." Id.

On behalf of its members' patients, the Pennsylvani a Psychiatric Society alleges the MCOs implemented policies to di scourage or prevent subscribers from using mental health services. Unde rS 502(a), "[r]elief may take the form of accrued benefits due, a declar atory judgment on entitlement to benefits, or an injunction against a plan administrator's improper refusal to pay benefits." Dedeaux , 481 U. S. at 53. In this case, the relief sought involves the administration of be nefits, because it

would change the quantum of mental health services provid ed. These allegations fall within the scope of ERISA's civil enforcement provision, and, therefore, removal was proper as ERISA complet ely preempts at least some of the claims alleged by the Pennsylvani a Psychiatric Society on behalf of its members' patients.4II.

The Pennsylvania Psychiatric Society, a nonprofit corporation representing licensed psychiatrists in Pennsylvania, filed suit on behalf of its member psychiatrists and their patients who subscribe to m anaged health care plans administered by Green Spring Heal th

Services.

There are several defendants. Green Spring Health Services, Inc. provides a network of psychiatrists as well as administrative services for managed health care pla ns; Magellan Health Services, Inc. is its corporate par ent. Keystone Health Plan West, Inc., Keystone Health Pl an Central, Inc., and Keystone Health Plan East, Inc. are health maintenance organizations that contract with Green Spring Health Services to provide mental health and substance abuse services to their subscribers. High mark, Inc. is the parent company of Keystone Health Plan West (these managed care organizations collectively are referred to as "the MCOs"). Green Spring Health Services, Ma gellan Health Services and Highmark choose which psychiatr ists to credential to provide these services.

Green Spring Health Services administers the psychi atric and substance abuse services for the employee benef it plans provided by the health management organizatio ns. For this purpose, it enters into contracts with psy chiatrists (the "Provider Agreement") to form a provider netwo rk to service the plans. In particular, the Provider Agre ement assures that Green Spring Health Services will not undermine the psychiatrists' responsibility to prov ide patients with the mental health services they requi re. For most disputes arising between credentialed psychiat rists and Green Spring Health Services, the Provider Agre ement also contains a mandatory arbitration clause that r equires exhaustion of internal review procedures before see king binding arbitration.

Alleging the MCOs unfairly profit at the expense of the psychiatrists and their patients, the Pennsylvania Psychiatric Society asserts several tort and breach of contract claims for impeding necessary psychiatric treatment. The Pennsylvania Psychiatric Society con tends

5the MCOs refused to authorize and provide reimburse ment

for medically necessary mental health treatment; in terfered with patients' care by permitting non-psychiatrists to make psychiatric treatment decisions; violated Provider Agreements by improperly terminating relationships with certain psychiatrists; and breached the contractual duties of good faith and fair dealing by failing to timely pay psychiatrists and by referring patients to inconven ient treatment locations, thereby depriving some patient s access

to treatment.

On the basis of these allegations, the Pennsylvania Psychiatric Society claims the MCOs tortiously inte rfered with the psychiatrists' livelihood as well as the p sychiatristpatient relationship. In addition, the Society asse rts the MCOs fraudulently misrepresented the quality of car e their plans would provide to subscribers and the benefits psychiatrists would receive for providing their ser vices. Finally, on behalf of its members' patients, the So ciety alleges the MCOs made false representations to thei r subscribers in violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 Pa. Const . Stat. Ann. S 201-1 et seq. (West 2001).

The complaint sought declaratory relief, injunctive relief, and damages. The Pennsylvania Psychiatric Society d oes not appeal the dismissal of its damages claims.

The suit commenced in state court but was removed t o federal court on grounds that ERISA preempted all o r, at least, some of the Society's claims. Recommending dismissal, the Magistrate Judge issued a Report and Recommendation finding the Society lacked standing to assert the claims of its members and their patients . As an alternative ground for dismissal, the Magistrate Ju dge found the mandatory arbitration clause in the psych iatrists' contracts foreclosed advancing the claims in court. The District Court adopted the Magistrate Judge's Repor t. The Pennsylvania Psychiatric Society timely appealed.

III.

The Pennsylvania Psychiatric Society's ability to p ress the claims of its members and their patients initially hinges on

6whether it meets the constitutional requirements fo r

associational standing. For its part, the Society s eeks only to pursue claims on behalf of its members and their patients; it does not allege direct injury to itsel f.

Our review of a dismissal under Fed. R. Civ. P. 12( b)(6) for lack of standing is plenary. ACLU-NJ v. Townshi p of Wall, 246 F.3d 258, 261 (3d Cir. 2001); Gen. Instru ment Corp. v. Nu-Tek Elecs. & Mfg., Inc., 197 F.3d 83, 8 6 (3d Cir. 1999). On appeal, we must accept as true all materi al allegations of the complaint and draw all reasonabl e inferences in a light most favorable to plaintiff. Maio v. Aetna, Inc., 221 F.3d 472, 481-82 (3d Cir. 2000). " `The issue is not whether a plaintiff will ultimately pr evail but

whether the claimant is entitled to offer evidence to support the claims.' " In re Burlington Coat Factory Sec. L itig., 114 F.3d 1410, 1420 (3d Cir. 1997) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). Therefore, we may affirm the district court only if we believe that the associat ion would be entitled to no relief under any set of facts con sistent with its allegations. Allegheny Gen. Hosp. v. Phili p Morris, Inc., 228 F.3d 429, 434-35 (3d Cir. 2000); City of Pittsburgh v. West Penn Power Co., 147 F.3d 256, 262 n.12 (3d Cir. 1998).

A.

To satisfy the "case or controversy" standing requi rement under Article III, S 2 of the United States Constit ution, a plaintiff must establish that it has suffered a cog nizable injury that is causally related to the alleged cond uct of the defendant and is redressable by judicial action. Fr iends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc . , 528 U.S. 167, 180-81 (2000) (discussing Lujan v. Defenders o f Wildlife, 504 U.S. 555, 560-61 (1992)); The Pitt Ne ws v. Fisher, 215 F.3d 354, 359 (3d Cir. 2000). Associati ons may satisfy these elements by asserting claims that ari se from injuries they directly sustain. See, e.g., Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 299 n.11 (1 979). Absent injury to itself, an association may pursue claims solely as a representative of its members. See, e.g ., New York State Club Ass'n, Inc. v. City of New York, 48 7 U.S. 1 (1988); Pub. Interest Research Group of N.J., Inc. v.

7Magnesium Elektron, Inc., 123 F.3d 111 (3d Cir. 199 7). By

permitting associational standing, we "recognize[ ] that the primary reason people join an organization is often to create an effective vehicle for vindicating interes ts that they share with others." Int'l Union, United Auto., Aero space & Agric. Implement Workers v. Brock, 477 U.S. 274, 29 0 (1986); see also Joint Anti-Fascist Refugee Comm. v

. McGrath, 341 U.S. 123, 187 (1951) (Jackson, J., concurring) (noting purpose of joining an associati on "often is to permit the association . . . to vindicate the interests of
all").

The Supreme Court has enunciated a three-prong test for associational standing. An association must demonst rate that "(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to p rotect are germane to the organization's purpose; and (c) neit her the claim asserted nor the relief requested requires th e participation of individual members in the lawsuit. " Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977) (permitting state agency that represented ap ple industry to challenge North Carolina statute); see also Laidlaw Envtl. Servs., 528 U.S. at 181; Hosp. Counc il v. City of Pittsburgh, 949 F.2d 83, 86 (3d Cir. 1991). The need for some individual participation, however, does not ne cessarily bar associational standing under this third criteri on. Hospital Council, 949 F.2d at 89-90.

In this case, the MCOs concede the Pennsylvania Psychiatric Society satisfies Hunt's first and seco nd prongs. But echoing defendants' objections, the District Co urt found the psychiatrists' claims would require a lev el of individual participation that precludes association al standing. As noted, the Society has not appealed th e dismissal of its damages claims. This is noteworthy because damages claims usually require significant individu al participation, which fatally undercuts a request fo r associational standing. On this point, the Supreme Court has explained that

"[w]hether an association has standing to in voke the court's remedial powers on behalf of its mem bers depends in substantial measure on the nature of the relief sought. If in a proper case the assoc iation seeks

8a declaration, injunction, or some other for m of

prospective relief, it can reasonably be sup posed that the remedy, if granted, will inure to the be nefit of those members of the association actually injured. Indeed, in all cases in which we have expressly recogni zed standing in associations to represent their members, the relief sought has been of this kind."

Hunt, 432 U.S. at 343 (quoting Warth v. Seldin, 422 U.S. 490, 515 (1975)). Because claims for monetary relie f usually require individual participation, courts ha ve held associations cannot generally raise these claims on behalf of their members. E.g., Air Transp. Ass'n v. Reno, 80 F.3d 477, 484-85 (D.C. Cir. 1996) (collecting cases); Sa nner v. Bd. of Trade, 62 F.3d 918, 923 (7th Cir. 1995) (sam e). Specifically, the Supreme Court has counseled "that an association's action for damages running solely to its

members would be barred for want of the association 's standing to sue." United Food & Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 546 ( 1996) (relying on Hunt, 432 U.S. at 343). Had the Society continued to press its claims for damages on appeal

, dismissal under Rule 12(b)(6) would be entirely app ropriate.

The sole associational standing question remains whether, taking the allegations as true, the Pennsy lvania Psychiatric Society's requests for declaratory and injunctive relief will require an inappropriate level of indiv idual participation.3 We first addressed this question in Hospital Council of Western Pennsylvania v. City of Pittsbur gh, where an association alleged that certain city and counti es threatened to discriminate against nonprofit hospit als on taxation, zoning, and contract matters if the hospi tals

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3. Individual participation by an association's mem bership may be unnecessary when the relief sought is prospective ( i.e., an injunction or declaratory judgment). See Brock, 477 U.S. at 287-8 8; Ark. Med. Soc'y, Inc. v. Reynolds, 6 F.3d 519, 528 (8th Cir. 1993); Action Alliance of

Senior Citizens v. Snider, Civ. A. No. 93-4827, 1994 WL 38 4990, at *3 (E.D. Pa. July 18, 1994) ("[P]articipation of individual memb ers is rarely necessary when injunctive relief rather than individual damag es is sought. Hospital Council, 949 F.2d at 89. This particularly true whe re . . . a broad based change in procedure rather than individualized inju nctive relief is sought.").

9refused to make voluntary payments in lieu of taxes . 949

F.2d 83. Interpreting Hunt's third prong through th e prism of earlier Supreme Court jurisprudence, we rejected the city's argument that some individual participation violated this requirement.4 Id. at 89. Explaining the circum stances on which this conclusion rested, we concluded:

[T]he claims asserted by the Council would r equire some participation by some Council members. This case, unlike many prior associational standi ng cases, does not involve a challenge to a statute, r egulation, or ordinance, but instead involves a challenge to alleged practices that would probably have to be pro ved by evidence regarding the manner in which the d efendants treated individual member hospitals. Adjudic ation of such claims would likely require that member hospitals provide discovery, and trial testimony by of ficers and employees of member hospitals might be neede d as well. Nevertheless, since participation by " each [allegedly] injured party" would not be nece ssary, we see no ground for denying associational stan ding.

Id. at 89-90.

The Court of Appeals for the Seventh Circuit subsequently adopted our interpretation of Hunt 's third prong in Retired Chicago Police Association v. City of Chicago, where the Retired Chicago Police Associati on sued the city to bar implementation of increased health care premiums. 7 F.3d 584 (7th Cir. 1993). In this drawn -out litigation, the Retired Chicago Police Association represented city employees who allegedly had been guaranteed subsidized health coverage. When the cit y attempted to raise the coverage price because of es calating costs, the employees claimed the city reneged on it s promise and sued. Believing the allegations would r equire individual participation, the district court conclu ded the association lacked standing. Id. at 600-01. Relying on Hospital Council, the court of appeals reversed and remanded, holding the association could attempt to

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4. In its brief, Keystone suggests reasons why indi vidual participation would be required.

10establish its allegations with limited membership

participation.5 Id. at 602-03.

The MCOs argue the medical coverage decisions on psychiatric care and substance abuse services, whic h form the basis of the organization's allegations, are fa ct-intensive inquiries. For this reason, they assert the examina tion of medical care determinations will demand significant individual participation. To buttress this point, d efendants note they offer subscribers various health care pla ns that in turn provide varying benefits. Consequently, they a rgue, demonstrating any single coverage decision violated their obligations will entail a case-by-case examination of a patient's condition along with the corresponding av ailable benefits. In support, defendants rely on Rent Stabi lization Association v. Dinkins, where an association of lan downers alleged rent regulations constituted an unconstitut ional taking of their property. 5 F.3d 591 (2d Cir. 1993) . There, the Court of Appeals for the Second Circuit held th at the extensive individual testimony required to adjudica te the claims would violate Hunt. Id. at 596; see also Rei d v. Dep't of Commerce, 793 F.2d 277, 279-80 (Fed. Cir. 1986) (holding union lacked standing to assert back pay c laims for its members because each claim depended on memb er's individual circumstances). The court reasoned the c laims foreclosed standing because it

would have to engage in an ad hoc factual in quiry for each landlord who alleges that he has suffer ed a taking. [The court] would have to determine the landlord's particular return based on a host of individualized financial data, and [the cour t] would

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5. The Court of Appeals for the Seventh Circuit sta ted:

We believe that the approach of the Third Ci rcuit is a sound one.

We can discern no indication in Warth, Hunt , o r Brock that the Supreme Court intended to limit representational sta nding to cases in which it would not be necessary to take any eviden ce from individual members of an association . . . . Rather, th e third prong of Hunt

is more plausibly read as dealing with situatio ns in which it is necessary to establish "individualized proof ," 432 U.S. at 344, for litigants not before the court in order to s upport the cause of

action.

7 F.3d at 601-02.

11have to investigate the reasons for any fail ure to obtain

an adequate return, because the Constitution certainly cannot be read to guarantee a profit to an i nefficient or incompetent landlord.

Rent Stabilization, 5 F.3d at 596. But the Court of Appeals for the Second Circuit has not rejected association al standing where only limited individual participatio n by some members would be required. See N.Y. State Nat' l Org. for Women v. Terry, 886 F.2d 1339, 1349 (2d Cir. 19 89) (association warranted standing although evidence f rom some individual members necessary); see also Nat'l Ass'n of Coll. Bookstores, Inc. v. Cambridge Univ. Press, 99 0 F. Supp. 245, 249-50 (S.D.N.Y. 1997). We agree that conferring associational standing would be improper for claims requiring a fact-intensive-individual inquir y.

The District Court reviewed the Pennsylvania Psychi atric Society's allegations--overly restrictive treatment authorizations; care determinations based on criter ia besides medical necessity; creation of improper obs tacles to physician credentialing; imposition of overly-burde nsome administrative requirements; failure to pay psychia trists for rendered services; direct interference with psychia tristpatient relations--and found each assertion would necessitate significant individual participation. I f this were true, the organization would not satisfy the associ ational standing requirements.6

But the Pennsylvania Psychiatric Society maintains the heart of its complaint involves systemic policy vio lations that will make extensive individual participation unnecessary. In effect, the Society contends the me thods the MCOs employ for making decisions--e.g., authori zing or denying mental health services, credentialing physi cians, and reimbursement--represent breaches of contract a s well as tortious conduct. Therefore, insofar as its alle gations concern how the MCOs render these decisions, the Society's complaint "involve[s] [ ] challenge[s] to alleged practices," Hospital Council, 949 F.2d at 89, that may be

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6. Likewise, if the Pennsylvania Psychiatric Societ y continued to press damages claims on behalf of its members, it would n ot meet the requirements for associational standing. See supra p. 8.

12established with sample testimony, which may not in volve

specific, factually intensive, individual medical c are determinations. See Virginia Hosp. Ass'n v. Baliles , 868 F.2d 653, 663 (4th Cir. 1989), aff 'd on other grou nds sub nom. Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498 ( 1990).

If the Pennsylvania Psychiatric Society can establi sh these claims with limited individual participation, it would satisfy the requirements for associational standing . While we question whether the Society can accomplish this , at this stage of the proceedings on a motion to dismis s for lack of standing, we review the sufficiency of the pleadings and "must accept as true all material allegations o f the complaint and must construe the complaint in favor of the plaintiff." Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts Inc., 140 F.3d 478, 483 (3d Cir. 1998) (cit ing Warth, 422 U.S. at 501). For this reason, we believe the S ociety's suit should not be dismissed before it is given the opportunity to establish the alleged violations wit hout significant individual participation (as noted, if the damages claims remained, we would affirm the dismissal unde r Fed. R. Civ. P. 12(b)(6)). Moreover, as the organization concedes, if it cannot adequately demonstrate the MCOs' breac hes with limited individual participation, its suit sho uld be dismissed. Because this appeal arises on a motion t o dismiss, the Pennsylvania Psychiatric Society shoul d be

allowed to move forward with its claims within the boundaries of associational standing. Therefore, we

conclude that the District Court erred in dismissin g the matter on this basis under Fed. R. Civ. P. 12(b)(6)

. Nevertheless, the District Court is free to revisit this issue.

B.

In addition to advancing the rights of its member psychiatrists, the Pennsylvania Psychiatric Society seeks to assert the claims of its members' patients who are also allegedly injured by defendants' practices. Because the patients are not members of, or otherwise directly associated with, the Pennsylvania Psychiatric Socie ty, the Society does not have associational standing to ass ert their claims. Nonetheless, the Society maintains it may b ring the

13patients' claims under the doctrine of third-party standing.7

In particular, the Society contends its member psyc hiatrists have third-party standing to assert the claims of t heir patients, and the Society has standing to bring the claims of its members, including their third-party claims. Defendants have challenged both of these steps. The refore, we must decide, first, whether the member psychiatr ists have third-party standing to bring the claims of th eir patients, and second, whether the Pennsylvania Psyc hiatric Society has associational standing to assert these members' third-party claims.

1.

Apart from the constitutional requirements for stan ding,8 courts have imposed a set of prudential limitations on the exercise of federal jurisdiction over third-party c laims. Bennett v. Spear, 520 U.S. 154, 162 (1997) ("[T]he federal judiciary has also adhered to a set of prudential p rinciples that bear on the question of standing.") (quotation and citation omitted); Warth, 422 U.S. at 498; Powell v . Ridge, 189 F.3d 387, 404 (3d Cir. 1999). The restrictions against third-party standing do not stem from the Article I II "case or controversy" requirement, but rather from pruden tial concerns,9 Amato v. Wilentz , 952 F.2d 742, 748 (3d Cir.

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7. Third-party standing is also commonly known as j us tertii standing. City of Chicago v. Morales, 527 U.S. 41, 56 n.22 (1 999); The Pitt News, 215 F.3d at 362 n.6; see also Henry Monaghan, Third Party Standing, 84 Colum. L. Rev. 277, 278 n.6 (1984) (explaining jus tertii standing). 8. Under standing doctrine, a plaintiff must satisf y three constitutional preconditions: (1) a cognizable injury that is (2) causally connected to

the alleged conduct and is (3) capable of being redress ed by a favorable judicial decision. Lujan, 504 U.S. at 560-61; see a lso supra pp. 6-7. 9. The Supreme Court has consistently held that sta nding to assert third-party rights is a prudential matter:

[O]ur decisions have settled that limitation s on a litigant's

assertion of jus tertii are not constitutionally manda ted, but rather stem

from a salutary "rule of self-restraint" designed to minimize

unwarranted intervention into controversies where the ap plicable constitutional questions are ill-defined and speculative.

Craig v. Boren, 429 U.S. 190, 193-95 (1976); see al so Brown Group, 517 U.S. at 557; Allen v. Wright, 468 U.S. 737, 751 (19 84); Singleton v. Wulff, 428 U.S. 106, 123-24 (1976) (plurality opinion); Wa rth 422 U.S. at 499;Barrows v. Jackson, 346 U.S. 249, 255, 257 (1953).

141991), which prevent courts from "deciding question s of

broad social import where no individual rights woul d be

vindicated and . . . limit access to the federal co urts to those litigants best suited to assert a particular claim." Gladstone, Realtors v. Vill. of Bellwood, 441 U.S. 91, 99-100 (1979); see also Sec'y of State v. Joseph H. Munson Co., 467 U.S. 947, 955 (1984).

It is a well-established tenet of standing that a"l itigant must assert his or her own legal rights and interes ts, and cannot rest a claim to relief on the legal rights o r interests of third parties." Powers v. Ohio, 499 U.S. 400, 41 0 (1991); see also Valley Forge Christian Coll. v. Ams. Unite d for Separation of Church and State, Inc., 454 U.S. 464, 474-75 (1982); Wheeler v. Travelers Ins. Co., 22 F.3d 534, 538 (3d Cir. 1994). This principle is based on the assumpti on that "third parties themselves usually will be the best proponents of their own rights," Singleton v. Wulff , 428 U.S. 106, 114 (1976) (plurality opinion), which serves t o foster judicial restraint and ensure the clear presentatio n of issues. See Munson, 467 U.S. at 955.

Yet the prohibition is not invariable and our jurisprudence recognizes third-party standing under certain circumstances.10 Campbell v. Louisiana, 523 U.S. 39 2, 397- 98 (1998); see also Hodel v. Irving, 481 U.S. 704, 711 (1987) (acknowledging general rule that party must assert own interests is "subject to exceptions"). In parti cular, if a course of conduct "prevents a third-party from ente ring into a relationship with the litigant (typically a contr actual relationship), to which relationship the third part y has a

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10. For instance, doctors may be able to assert the rights of patients; lawyers may be able to assert the rights of clients ; vendors may be able to assert the rights of customers; and candidates f or public office may be able to assert the rights of voters. See, e.g. , Ca plin & Drysdale,

Chartered v. United States, 491 U.S. 617 (1989) (holding lawy er could bring Sixth Amendment lawsuit on behalf of criminal defendant); Singleton, 428 U.S. 106 (conferring standing on physicians on behalf of patients to challenge a statute that excluded funding for abortions from Medicaid benefits); Craig, 429 U.S. 190 (allowing vendor to challenge s tatute that prohibited males under age of twenty-one from buying beer); Ma ncuso v. Taft, 476 F.2d 187 (1st Cir. 1973) (permitting candidate for public office to raise voters' rights).

15legal entitlement," third-party standing may be app ropriate.

United States Dep't of Labor v. Triplett, 494 U.S. 715, 720 (1990); see also Munson, 467 U.S. at 954-58 (fundra iser had third-party standing to challenge statute limit ing fees charitable organizations could pay because law infr inged on organizations' right to hire fundraiser for a highe r fee).

The Supreme Court has found that the principles animating these prudential concerns are not subvert ed if the third party is hindered from asserting its own rights and shares an identity of interests with the plaint iff. See Craig, 429 U.S. at 193-94; Singleton, 428 U.S. at 1 14-15; Eisenstadt v. Baird, 405 U.S. 438, 443-46 (1972). M ore specifically, third-party standing requires the sat isfaction of three preconditions: 1) the plaintiff must suffer i njury; 2) the plaintiff and the third party must have a "clos e relationship"; and 3) the third party must face som e obstacles that prevent it from pursuing its own cla ims. Campbell, 523 U.S. at 397; Powers, 499 U.S. at 411; The Pitt News, 215 F.3d at 362. It remains for courts t o balance these factors to determine if third-party standing is warranted. Amato, 952 F.2d at 750.

a.

Although the Pennsylvania Psychiatric Society itsel f has not suffered direct injury, it is uncontested that it properly pleaded that defendants' policies and procedures ha ve economically injured its member psychiatrists and undermined their ability to provide quality health care. Thus, while the Society does not itself stand in an appropriate relationship to the patients' claims to directly assert them, its members may have third-party stand ing to do so.11 And because plaintiff seeks to establish s tanding on

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11. The District Court held--and the dissent argues --that the Pennsylvania Psychiatric Society could not raise th ese claims because it did not itself suffer injury. Injury to the Society , however, is not

relevant to the issue of the psychiatrists' standing to brin g the patients' claims. Because of the Society's posture, that is the initi al question to be resolved. Only after it is determined that the memb er psychiatrists would have third-party standing over these claims do we a ssess whether the Society can bring its members' third-party claims. It is in the latter context that injury to appellant itself is a potent ial requirement, which

we discuss below.

16the basis of its members' standing to bring these c laims,

the members are the appropriate focus of inquiry fo r these

purposes.

b.

We next turn to whether the psychiatrists and their patients have a sufficiently "close relationship" w hich will permit the physicians to effectively advance their patients' claims. To meet this standard, this relationship mu st permit the psychiatrists to operate " `fully, or ve ry nearly, as effective a proponent' " of their patients' rights as the patients themselves.12 Powers , 499 U.S. at 413 (qu oting Singleton, 428 U.S. at 115).

The patients' relationships with their psychiatrist s fulfills this requirement. See supra note 12. In Singleton v . Wulff, the Supreme Court granted physicians third-party st anding on behalf of their patients to challenge a statute prohibiting Medicaid funding for certain abortions. 428 U.S. 10 6. Because of the inherent closeness of the doctor-pat ient relationship, the plurality found the physicians co uld efficaciously advocate their patients' interests. I d. at 117 (noting "abortion decision is one in which the phys ician is intimately involved"). The relationship forged betw een psychiatrists and their patients is equally compell ing.

Psychiatrists clearly have the kind of relationship with their patients which lends itself to advancing clai ms on their behalf. This intimate relationship and the re sulting mental health treatment ensures psychiatrists can effectively assert their patients' rights. Because the Pennsylvania Psychiatric Society alleges the MCOs p revent patients from receiving necessary mental health ser vices and psychiatrists from providing them, its member psychiatrists would be well-suited to litigate thes e claims for both parties, as their interests are clearly al igned. See

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12. Courts have generally recognized physicians' au thority to pursue the claims of their patients. Am. Coll. of Obstetrician s & Gynecologists v. Thornburgh, 737 F.2d 283, 290 & n.6 (3d Cir. 1984) (collecting cases where physicians allowed to assert patients' claims ); see also Planned Parenthood v. Farmer, 220 F.3d 127, 147 & n.10 (3d Cir. 2000).

17Amato, 952 F.2d at 751 (noting doctor-patient relat ionship

provides strong likelihood of effective advocacy by a physician on behalf of his patients). Accordingly, we believe the psychiatrist-patient relationship would satisfy the second criterion for third-party standing.13

c.

Finally, we examine whether the mental health patie nts face obstacles to pursuing litigation themselves. T his criterion does not require an absolute bar from sui t, but "some hindrance to the third party's ability to pro tect his or her own interests," Powers, 499 U.S. at 411. In oth er words, a party need not face insurmountable hurdles to warrant third-party standing.14Id. at 415 (holding excluded juror's limited incentive to bring discrimination s uit satisfied obstacle requirement for criminal defenda nt to merit third-party standing); Singleton, 428 U.S. at 117 (recognizing lawsuit's invasion of patient's privac y and "imminent mootness" of pregnancy sufficiently imped ed patient from bringing suit herself). The District C ourt found the patients' mental health problems did not signif icantly hinder them from suing. We disagree.

The stigma associated with receiving mental health services presents a considerable deterrent to litig ation. Cf. Parham v. J.R., 442 U.S. 584, 622 (1979) (Stewart, J., concurring) ("There can be no doubt that commitment to a

mental institution results in massive curtailment o f liberty. In addition to the physical confinement involved, a person's liberty is also substantially affected by the stigm a attached to treatment in a mental hospital.") (quotations an d

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13. The importance of the psychiatrist-patient rela tionship has been recognized in other settings too. In Jaffee v. Redm ond, the Supreme Court upheld the evidentiary privilege for psychoth erapist-patient communications. 518 U.S. 1, 10-15 (1996).

14. One treatise insists that "cases do not demand an absolute impossibility of suit in order to fall within the[i mpediment] exception.

At the other end of the spectrum, a practical disincen tive to sue may suffice, although a mere disincentive is less persu asive than a concrete impediment." 15 James Wm. Moore et al., Moore's Fed eral Practice S 101.51[3][c].

18citations omitted); Humphreys v. Drug Enforcement A dmin.,

96 F.3d 658, 662 (3d Cir. 1996) (noting "psychiatri c patients suffer a stigma in society") (quotation an d citation omitted). For example, the Supreme Court recognized in Singleton that the obstacles confronted by women in opposing an abortion statute were not overwhelming. In fact, the Court acknowledged the suit could have be en brought pseudonymously or as a class. Singleton , 4 28 U.S.

at 117. The Court still concluded that a woman's de sire to protect her privacy could discourage her from bring ing suit and constituted a sufficient impediment. Id. at 117 -18. These concerns apply with equal, if not greater, fo rce to mental health patients. See Bd. of Trustees of Univ . of Ala. v. Garrett, 531 U.S. 356, 375 (2001) ("There can be little doubt, then, that persons with mental or physical impairments are confronted with prejudice which can stem from indifference or insecurity as well as from mal icious ill will.") (Kennedy, J., concurring). Besides the stig matization that may blunt mental health patients' incentive to pursue litigation, their impaired condition may prevent th em from being able to assert their claims. Therefore, we be lieve the patients' fear of stigmatization, coupled with thei r potential incapacity to pursue legal remedies, operates as a powerful deterrent to bringing suit.

Because the third-party claims asserted by the Pennsylvania Psychiatric Society do not implicate a ny constitutional rights of the psychiatrists' patient s, the MCOs contend that granting third-party standing is unwarranted. While successful third-party standing claims have involved alleged violations of third parties' constitutional rights, Singleton and its progeny ha ve not stipulated that constitutional claims are a prerequ isite.15 It is true that the rule against third-party standing" normally bars litigants from asserting the rights or legal i nterests of others in order to obtain relief from injury to the mselves."

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15. Simply raising a third party's constitutional c laims will not in and

of itself satisfy the requirements for third-party sta nding. For instance, a litigant may not assert a third party's Fourth Amen dment rights against unreasonable search and seizure to prevent the admi ssion of damaging evidence. E.g., United States v. Payner , 447 U.S. 727 (1980); see also Monaghan, supra note 7, at 305 n.149.

19Warth, 422 U.S. at 509. Furthermore, the Supreme Co urt

has noted that courts must consider "the relationsh ip of the litigant to the person whose rights are being asser ted; the ability of the person to advance his own rights; an d the impact of the litigation on third-party interests." Caplin & Drysdale, 491 U.S. at 623 n.3. But the Court has no t held that a constitutional claim must also be alleged, s ee, e.g., Powers, 499 U.S. at 410-11, and absent further guid ance, we will not impose this requirement. For these reas ons, we hold the Pennsylvania Psychiatric Society's member psychiatrists would have third-party standing to as sert the claims of their patients.

2.

The Pennsylvania Psychiatric Society contends it ha s standing to bring these third-party claims just as it has standing to bring its members' other claims under t he doctrine of associational standing. Defendants main tain the patients' claims are too attenuated from the Societ y to permit derivative standing.

We decline to adopt a per se rule barring such deri vative claims. The Supreme Court did not delineate in Hunt which types of claims associations could bring on behalf of their members, but rather simply held that "an associatio n has standing to bring suit on behalf of its members" wh en the requisite elements are established. Hunt, 432 U.S. at 343.

The limitations on derivative standing, therefore, are to be determined by applying the test for associationa l standing specified in Hunt. Our holding that the Pennsylvania Psychiatric Society has alleged facts sufficient to establish the third-party standing of its member s to bring their patients' claims implies the satisfacti on of only the first requirement of the Hunt test--that "its m embers would otherwise have standing" to bring these claim s. A third-party claim must also meet the requirements t hat "the interests it seeks to protect are germane to t he organization's purpose" and that "neither the claim asserted nor the relief requested requires the participation of

individual members in the lawsuit." Id. These facto rs inform the analysis whether an association stands in the c orrect

20relationship to a claim to allow it to assert that claim on

behalf of others.

Other courts of appeals have adopted this approach in finding standing in similar cases. In Fraternal Ord er of Police v. United States, the Court of Appeals for t he District of Columbia granted an organization derivative auth ority to assert the third-party claims of its members. 152 F .3d 998, 1002 (D.C. Cir. 1998) ("[T]he presence of[the chief law enforcement officers] as members gives the Order st anding to make these [third-party] claims as well.").16 Th e Fraternal

Order of Police sued to contest the constitutionali ty of federal legislation that prohibited supplying firea rms to police officers convicted of domestic violence. Id. at 1000-

01. Because a chief law enforcement officer would b e liable for supplying a firearm to a subordinate convicted of domestic violence and because the failure to supply a weapon could also violate the subordinate officer's rights, the court of appeals found the chiefs had third-par ty standing to advance the claims of their officers. I d. at 1002.

Since the chiefs were members of the Fraternal Orde r of Police, the association had standing to advance the chiefs'

claims as well as the claims of their subordinates. Similar to this case, none of the members were themselves p arty to

the suit.17

The Court of Appeals for the Sixth Circuit also gra nted an organization derivative authority to enjoin the enf orcement of a statute requiring private schools to administe r proficiency tests in Ohio Association of Independen t Schools v. Goff. 92 F.3d 419, 421-22 (6th Cir. 1996). As pa rties to the litigation, the association's member schools ha d standing because failure to comply with the statute would

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16. The opinion containing the discussion of standi ng in Fraternal Order of Police was reversed on rehearing. Fraternal Orde r of Police v. United States, 173 F.3d 898 (D.C. Cir. 1999). In the secon d opinion, however, the court stated, "The analysis of standing on this issue is unchanged from our prior opinion." Id. at 903.

17. Contrary to the dissent, we believe Fraternal O rder of Police supports recognition of the combination of associational sta nding and third-party standing, since the standing "bridge" in that case- -the chief law enforcement officers--were not parties to the litig ation.

21result in the loss of their school charters. Id. a t 422. The

private schools also had third-party standing to as sert the constitutional right of their students' parents to direct their

children's education. Because its member schools co uld be injured by the statute, the Ohio Association of Ind ependent Schools also had standing to assert their claims. S ince its member schools had standing to assert the rights of the parents, the court held the Ohio Association of Ind ependent Schools also had standing to sue on behalf of the p arents whose children attended its members' schools. Id. ( "The member schools . . . have standing . . . on behalf of parents of students who are threatened with the nonreceipt of diplomas. Consequently, the OAIS itself, as an orga nization dedicated exclusively to advancing the interests of the member schools, has associational standing to chall enge the statutes at issue."). Thus, while some member s chools --the intermediate parties--were parties to the dis pute, the Sixth Circuit's standing analysis did not rely on t hat fact. We see a compelling analogy between these cases and the claims before us, and believe the Pennsylvania Psyc hiatric Society may have standing to assert its members' th irdparty claims.

The District Court found the Pennsylvania Psychiatr ic Society lacked derivative authority to pursue the c laims of its members' patients because it had not suffered d irect injury itself. On this point, defendants contend Go ff is inapt because the Court of Appeals for the Sixth Circuit did not require that the association suffer injury in fact. See Amato, 952 F.2d at 749. This criticism is misplaced. It is generally true that third-party standing requires the party w ho advances the interests of another party to also suf fer discrete injury. As noted previously, this prudenti al requirement sharpens presentation of claims and avo ids litigation of general grievances. But when an assoc iation, which has not sustained direct injury, obtains stan ding to pursue the claims of its members, the association m ay rely on the injuries sustained by its members to satisfy the injury-in-fact requirement. Consequently, once an organization's members establish third-party standi ng, the prudential concerns are alleviated if the associati on also has authority to assert its members' claims.

22It is a well-recognized anomaly of representational

standing that the individuals who have sustained th e requisite injury to satisfy the constitutional and prudential standing criteria are not in fact responsible for b ringing suit. So long as the association's members have or will suffer sufficient injury to merit standing and thei r members possess standing to represent the interests of thir d-parties, then associations can advance the third-party claim s of their members without suffering injuries themselves . 18 If on remand the Pennsylvania Psychiatric Society warrant s associational standing to represent its members, we conclude it also may have derivative authority to r aise the claims of its members' patients.19

IV.

We now consider the arbitration provision in the Pr ovider Agreement between the MCOs and the psychiatrists. 2 0 The

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18. In Public Citizen v. FTC, the Court of Appeals for the District of Columbia held Public Citizen and other organization s had standing to challenge an FTC regulation exempting certain promo tional items from a statutory requirement that all advertisements for s mokeless tobacco products carry certain health warnings. 869 F.2d 15 41 (D.C. Cir. 1989). The court held the organizations had associational standing to assert the claims of their members. Id. at 1550. Additionally, the court held that members who were also parents had standing to advan ce claims for their children. The organizations thus had the derivative authority to assert

the claims of their members' children as well. Id.

19. Because the District Court held the Pennsylvani a Psychiatric Society did not have standing to assert the claims of its m embers' patients, it found the organization itself did not fall within t he "zone of interests"

of the common law fraud or statutory fraud claims asse rted on behalf of the psychiatrists' patients. Because we reverse and remand the District Court's judgment on associational and third-party s tanding, it will have

to reconsider this issue.

20. The Provider Agreement provides in part:

Section 10.1 Resolution of Disputes. In the event that a dispute between Green Spring and Provider arises out of or is related to

this Agreement, the parties to the dispute agree to negotiate in good

faith to attempt to resolve the dispute. In the ev ent the dispute is not resolved within 30 days of the date one part y sent written notice

of

23Pennsylvania Psychiatric Society argues that the Di strict

Court erred in holding all its claims were subject to mandatory arbitration. The Society contends the arb itration provision should not apply to its member psychiatri sts for several reasons: (1) the arbitration provision is a n unconscionable contract of adhesion; (2) the organi zation's broad-based claims are beyond the scope of the arbi tration provision; (3) claims regarding the process of dete rmining medical necessity fall outside the purview of arbit ration and pursuing these claims through the available interna l review procedures would be futile; and (4) the psychiatris ts with initial credentialing or re-credentialing claims do not have contracts with the MCOs requiring arbitration.21

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the dispute to the other party, and if any p arty wishes to pursue

the dispute, it shall be submitted to binding ar bitration in accordance

with the rules of the American Arbitration A ssociation . . . . If

the dispute pertains to a matter which is genera lly administered in accordance with Green Spring's procedures in volving, for example, credentialing or quality assurance, the proc edures set forth by Green Spring must be fully exhausted by Prov ider before Provider may invoke its right to arbitration under th is Section. Provider acknowledges that the recommendation and det ermination of whether Health Services are Medically Necess ary shall be made in accordance with Green Spring's policies and procedures and shall not be subject to this Section 10.

The Provider Agreement defines Medically Necessary Health Services as:

Health Services including professional servi ces and supplies rendered by a Provider to identify or treat an illness that has

been diagnosed or is suspected, and which are: (a ) consistent with (i)

the efficient diagnosis and treatment of a condi tion; and (ii)

standards of good medical practice; (b) required for othe r than convenience; (c) the most appropriate supply or level of serv ice; (d) unable to be provided in a more cost-effective and effici ent manner; and (e) unable to be provided at a facility providin g a less intensive

level of care. When applied to inpatient care, the te rm means: The needed care cannot be safely given on other than an inpatient basis.

21. The District Court believed that these claims h ad all been settled,

but the Pennsylvania Psychiatric Society maintains in i ts brief that these claims have not been addressed completely. Keystone also argues the association should be prohibited from asserting cla ims on behalf ofpsychiatrists that Green Spring Health Services has never credentialed

24Because it denied the Society associational and thi rdparty standing to advance the claims of its members ' patients, the District Court did not did not examin e whether the patients' claims would be subject to ma ndatory arbitration. The District Court only reviewed the e ffect of the arbitration provision on the credentialed psych iatrists who are Society members. It strikes us that, assumi ng the Society has standing to assert the claims of each p arty, the District Court will have to re-examine the scope as well as the effect of the arbitration provision on all the parties involved. Because we find the Pennsylvania Psychiat ric Society survives a motion to dismiss for lack of st anding, the District Court must sort through, in the first instance, the impact of the psychiatrists' arbitration clause on the alleged claims.

V.

We will reverse and remand the dismissal of the Pennsylvania Psychiatric Society's complaint for la ck of standing. Depending on the level of individual part icipation necessary to demonstrate its claims, the Society ma y have standing to press the claims of its member psychiat rists and their patients. Of course, we express no opinio n as to the merits of any of the claims or defenses.

We will reverse the order of the District Court and remand for proceedings consistent with this opinion

.

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because their claims are not present in the Pennsyl vania Psychiatric Society's Amended Complaint. See Pa. ex. rel. Zimme rman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988). In addition , defendants contend that the Pennsylvania Psychiatric Society has not a sserted a single claim in its complaint on behalf of psychiatrists who hav e been denied credentialing by defendants. However, several of th e allegations in the organization's amended complaint could arguably be read as asserting claims on behalf of this class of psychiatrists. Al though the Amended Complaint is somewhat ambiguous, all these claims m ay be found woven throughout the allegations.

25NYGAARD, Circuit Judge, dissenting:

I agree with much of what the majority has said. I part company, however, with its conclusion that grants P PS a hybrid-type of third-party derivative standing. PPS argues that it has standing to litigate, not the interests of its member-psychiatrists, but rather the issues and int erests of its member-psychiatrists' patients -- who are th ree steps removed from PPS. PPS's argument has three premises . Its first two premises are exceptions to the standing r ule: 1) that PPS has associational standing to litigate on behalf ofits member-psychiatrists; and, 2) that its memberpsychiatrists have third-party standing to litigate on behalf of their patients. Its third premise is that these exceptions can be "stacked" to concoct a new exception to the standing

rule. PPS thus concludes that it should have standi ng to litigate on behalf if its members' patients.

The first two premises are sound, but I disagree wi th the majority on the third. PPS cannot piggy-back two di screte exceptions, to swallow up the long-standing rule th at litigants must assert their own rights and interest s. I cannot find, nor does PPS cite, any authority for s tacking or piggy-backing these relationships into an attenuate d concatenation of exceptions to the standing rule so as to confer standing on PPS. I would hold that PPS canno t seek relief based upon the rights and interests of remot e third parties. I must therefore respectfully dissent on t his point.

Central to my conclusion is that PPS's third premis e runs afoul of Amato v. Wilentz, 952 F.2d 742 (3d Cir. 19 91), wherein we discussed the objectives and standards f or third-party standing. Although third-party standing typically proves to be a nebulous prudential doctri ne, sensitive to the particularities and peculiarities of the relationship between the parties and their claims, we distilled a basic test for third-party standing in Amato. Id. at 748-49. We require that the party seeking standi ng must first have suffered an injury in fact. If the party seeking standing has suffered an injury in fact, the court must then examine further, considering: a) the intimacy of th e relationship between the parties; b) any impediment the party might have to advancing its own rights; and c ) the identity of the interests between the parties. Id. at 749.

26Applying the Amato standards, the District Court fi rst

found that PPS did not itself suffer an injury. No one disputes this fact. I agree with the District Court that because PPS has not even alleged a concrete injury to itself, it cannot satisfy Amato's most elementary standard. Standing should be denied to PPS on this test alone

.

The District Court, however, continued and found th at even if PPS had alleged an injury in fact to itself , Amato's subsequent elements, or balancing tests, would not favor PPS third-party standing for its members' patients. The District Court found that the "relationship between PPS and the patient subscribers is so attenuated as to weig h against PPS to bring suit on behalf of persons with which i t has no direct relationship." The District Court next found that "there appears to be no impediment to the patients seeking to enforce their legal claims themselves" and the p atients face "no affirmative obstacle to sue[ ]." I agree w ith the District Court that even had PPS shown an injury-in -fact, the subsequent balancing test would not confer stan ding on PPS. The argument that psychiatric patients may fac e some impediment to bringing these claims themselves, bec ause of the stigma attached to mental illness and psychiatr ic care, is mere speculation, and moreover, this factor is counterbalanced by the remoteness of the relationsh ip between PPS and its members' patients. The relation ship between PPS and the patients is nothing like the doctor/patient intimacy that supports that exceptio n to the standing rule.

Thus the District Court held that PPS should be den ied third-party standing for its member' patients for t hree distinct reasons: 1) PPS suffered no injury in fact and

therefore the Court did not need to entertain the s econdary balancing factors set forth in Amato; 2) even if PP S did merit consideration under the balancing test, the b alancing test would not weigh in favor of granting standing since PPS's relationship with its members' patients is to o attenuated; and 3) the patients have no substantial obstacle to bringing their claims independently. I agree with all three reasons, and with the District Court's co nclusion.

PPS argues to us that the District Court "ignored significant case law recognizing derivative third-p arty

27standing." Nonsense. None of the cases PPS cites ar e

directly on point. PPS and its amici cite cases tha t confer standing to doctors to litigate on behalf of their patients. But this does nothing to advance PPS' argument on t he "stacking" issue presented here. PPS cites both Ame rican College of Obstetricans v. Thornburgh, 737 F.2d 283 (3d Cir. 1983) and Ohio Association of Independent Schools v . Goff, 92 F.3d 419 (6th Cir. 1996), to support the notion that "an association may assert third-party claims that coul d be brought by its members." Neither of these cases sta nd for

such a notion.

In Ohio Association, the association, along with se veral of its member schools, sought standing for parents of children in the schools to challenge the requirement of stat e formulated testing in private schools. Ohio Associa tion, 92

F.3d at 421. The Court found that the "OAIS member schools also have standing to assert the constituti onal right of parents to direct their children's education." I d. at 422 (emphasis added). Thus the Court did not find that the association had standing to assert parents' interes ts, but that individual schools had standing to do so. Thus the operative distinction between Ohio Association and PPS' argument is that in Ohio Association both the assoc iation and its individual members jointly brought the suit , but here, PPS attempts to bring its claims to court wit hout the participation of any of its members.

American College presents the same problems for PPS . In American College, the challenge was brought by a te am of an association, doctors, and medical providers. Ame rican College, 737 F.2d at 289. In a footnote the Court s tated that the "district court concluded that plaintiff p hysicians, ACOG, and medical providers all had standing to rai se their own interests (or the interests of members) and tho se of patients and customers in challenging the Act's constitutionality. We affirm this general conclusio n." Id. at 290 n.6. As in Ohio Association, the standing quest ions in American College turned on the doctors actually participating in the suit. The reason is obvious: T he doctors provide the standing "bridge" between the associati on and the patients. All of the support cited in American College demonstrates the need for physicians to participate in the

28suit to establish standing. Id. (citing City of Akr on v. Akron

Ctr. for Reprod. Health, 462 U.S. 416 (1983) (chall enge by abortion clinics and a physician); Planned Parentho od Ass'n v. Ashcroft, 462 U.S. 476 (1983) (challenge by Plan ned Parenthood, two physicians and an abortion clinic); Planned Parenthood v. Danforth, 428 U.S. 52, 62 (1976) (cha llenge by Planned Parenthood and two physicians); Singleto n v. Wulff, 428 U.S. 106 (1976) (challenge by two physic ians)).

Other cases demonstrate this need for a caretaker, such as a parent or advising officer, to be a party to t he suit to provide the bridge between the association and the harmed

individual. See Fraternal Order of Police v. United States, 152 F.3d 998 (D.C. Cir. 1998) (granting standing fo r an organization whose members included chief law

enforcement officers based on the chief law enforce ment officer's standing to advance the equal-protection rights of subordinate officers); Public Citizen v. FTC, 869 F .2d 1541 (D.C. Cir. 1989) (organizations had standing to cha llenge an FTC regulation that exempted certain promotional it ems from the requirement that advertising for smokeless tobacco products carry health warnings, since the m embers of the organizations included parents of children w ho might be injured by the lack of warnings).

In summary, I agree with the manner in which the District Court applied the Amato standard. I am con vinced that PPS has neither successfully met (nor circumnavigated, as the case may be) Amato's requir ement that PPS must have itself suffered an injury. Hence I respectfully dissent and would affirm the District Court.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

29