Opinion PER CURIAM.
Physicians' Education Network (Physicians') represents the interests of opthalmologists. It appeals from a district court ruling that it lacks standing to seek the rescission of a report from the Secretary of the Department of Health, Education and Welfare (HEW) recommending that Medicare reimbursement for eye care limited to services performed by opthalmologists be extended to certain services performed by optometrists. The report was prepared to comply with section 109 of Pub.L. No. 94-182.
Physicians' principal complaint is that the composition of the panel was rigged so as to reflect only the optometrists' viewpoint, and that the panel operated in violation of a number of the provisions of the Federal Advisory Committee Act, Pub.L. 92-463, Oct. 6, 1972, 86 Stat. 770, as amended, Title 5 United States Code, Appendix I.
In any event, Physicians' did not act timely to monitor the progress of the report
To establish standing to complain in the district court, Physicians' was thus left to argue that ophthalmologists would suffer economic injury as a result of the illegal procedures alleged. The theory of the complaint was that the report was the product of these procedures, that the report would cause passage of an act entitling optometrists to more Medicare reimbursement, and that these optometrists would then divert Medicare-subsidized business from ophthalmologists. In addition to "injury in fact," Physicians' was also required to show that the relief requested (rescission of the report) would redress the injury complained of (loss of customers), i. e., that rescission of the report would break the alleged chain of causation by inducing the Secretary and, in turn, Congress to reject any proposed extension of Medicare subsidy for services performed by optometrists.
On defendant's motion to dismiss under Fed.R.Civ.P. 12(b)(6), the district court (Pratt, J.) concluded that Physicians' lacked standing. Although finding "considerable force" in defendant's argument that Physicians' had shown no likely injury in fact, the court rested its holding on the ruling that there was no substantial likelihood that granting the relief requested would redress the injury complained of.
We agree with the district court and adopt its analysis, set forth as an appendix to this opinion. Moreover, since the filing of this appeal, Congress on December 5, 1980 enacted the legislation contemplated by Pub.L. No. 94-182.
We are thus faced with the fact that the Secretary has made his report, the Congress has enacted its law, and Physicians would have us speculate on what Congress will do in the future on the basis of a series of tenuous inferences. Appellant has let the time slip by when our decree could have any significant effect. For this court to act now in such circumstances is beyond its authority since "federal courts are without power to decide questions that cannot affect the rights of the litigants before them. Oil Workers Unions v. Missouri, 361 U.S. 363, 367, 80 S.Ct. 391, 394, 4 L.Ed.2d 373 (1960)." North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 404, 30 L.Ed.2d 413 (1971). Physicians' must address its complaint to Congress.
MEMORANDUM OPINION of JOHN H. PRATT, District Judge.
Plaintiff Physicians Education Network, Inc. is suing the Department of Health, Education and Welfare and its Secretary, Patricia Harris, for declaratory and injunctive relief. Plaintiff seeks to have this court declare unlawful and order rescinded a report prepared by defendant HEW and transmitted to Congress. For the reasons discussed below, we find that plaintiff lacks standing to maintain this action, and we accordingly grant defendant's motion to dismiss.
Plaintiff Physicians Education Network, Inc., is an organization of over 1300 opthalmologists practicing throughout the country. Opthalmologists are physicians who specialize in opthalmology, a branch of medical science dealing with the structure, functions, and diseases of the eye. Plaintiff's concern centers on a report
More specifically, under Part B of Title XVIII, which is a voluntary supplemental benefits plan available to any person aged 65 or older,
Plaintiff disputes the soundness of this recommendation
Plaintiff alleges that two pieces of legislation which include provisions expanding medicare coverage as recommended by the 1976 report are pending before the House and Senate, after having been reported favorably by committees of each house of Congress,
By their amended complaint, plaintiff alleges that individual members of its organization will be harmed economically by passage of this legislation because it will cause opthalmologists who practice in proximity to optometrists to lose medicare patients to optometrists. Plaintiff's reasoning is that some cataract patients will utilize the services of optometrists rather than ophthalmologists after surgery if those services are covered by medicare benefits.
Plaintiff asks this court to declare that the 1976 report prepared by defendant HEW is in violation of civil service regulations and of various statutory and constitutional provisions. Plaintiff has also moved for a preliminary injunction requiring defendants to rescind the 1976 report.
Defendants have opposed the motion for a preliminary injunction and have filed a motion to dismiss the complaint pursuant to
"In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues." Warth v. Seldon, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). A litigant's standing is constitutionally limited by the Article III provision restricting the judicial power to the hearing of cases or controversies. This constitutional restriction is reflected in the requirements that the plaintiff suffer some actual or threatened injury as a result of the putatively illegal conduct of the defendant, and, assuming there is actual or threatened injury, that there be a substantial likelihood that the injury will be redressed if the requested relief is granted.
In considering a motion to dismiss for lack of standing to determine whether these two requirements have been met, we must accept as true all material allegations of the complaint, and we must construe the complaint in favor of the complaining party. Warth v. Seldon, supra. Normally, mere allegations will suffice, but if controverted by the defendant, the plaintiff must demonstrate facts supporting his allegations. Public Citizen v. Lockheed Aircraft Corporation, 565 F.2d 708, 714 n. 22 (D.C.Cir.1977); Sierra Club v. Morton, 514 F.2d 856, 870 n. 20 (D.C.Cir.1975), rev'd on other grounds sub nom. Kleppe v. Sierra Club, 427 U.S. 390, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976). Also, "... it is within the trial court's power to allow or to require the plaintiff to supply, by amendment to the complaint or by affidavits, further particularized allegations of fact, deemed supportive of plaintiff's standing. If, after this opportunity, the plaintiff's standing does not adequately appear from all materials of record, the complaint must be dismissed." Warth v. Seldon, supra, 422 U.S. at 501-2, 95 S.Ct. at 2206-07.
By its amended complaint, plaintiff has submitted affidavits from several of its members alleging that they will suffer economic injury as a result of the enactment of legislation expanding medicare coverage for certain services provided by optometrists. Plaintiff alleges that if medicare benefits are expanded to allow reimbursement for certain optometric services performed by optometrists after cataract surgery, which are now only reimbursable under medicare if performed by ophthalmologists or other physicians, ophthalmologists practicing in proximity to optometrists will lose some medicare patients to optometrists.
Although economic injury alone may be sufficient to meet the injury in fact requirement of Article III, we need not consider whether plaintiff has established a sufficiently tangible and cognizable injury
According to plaintiff's allegations, the injury complained of here will occur only upon passage by Congress and signing into law by the President of legislation extending the medicare coverage as recommended in the 1976 report prepared by defendant HEW. To conclude that plaintiff has standing to maintain this action, it is therefore necessary for us to find that it is substantially likely that Congress will not pass the expansion of medicare coverage if we declare the 1976 report in violation of certain regulations, statutory provisions, and/or constitutional requirements and accordingly order it rescinded. Only speculative inferences could lead us to such a conclusion because the record does not carry us that far, and "unadorned speculation will not suffice to invoke the judicial power." Simon, supra 426 U.S. at 44, 96 S.Ct. at 1927.
We acknowledge that by being reported favorably by the relevant committees of each house, this legislation has cleared one of the major obstacles on its way toward enactment. We also accept as true the allegation contained in an exhibit submitted with plaintiff's amended complaint that "congressional staff indicate that this report occupies a central place in the justification for the coverage extension." But even construing these and the other allegations in the complaint in favor of the plaintiff, as we must, we cannot conclude that plaintiff has established a substantial likelihood that the injury complained of will be redressed if the requested relief is granted.
There is nothing more than speculation to support the conclusion that a judicially-ordered rescission of the report is substantially likely to prevent enactment of the legislation expanding medicare coverage. Other results are equally as plausible. Although the Congress certainly considers executive branch reports while deliberating on legislation, the Congress is a political body, and it responds to political influences as well. This in itself makes it extraordinarily difficult to demonstrate that any action by this court could or would provide relief for the injury claimed. For example, given the allegation in the complaint of the "undue influence" exerted, allegedly successfully, by lobbyists for the National Optometric Association, and assuming arguendo that rescission of the report would adversely affect chances of the legislation's passage, it seems as likely as not that any such impact could be offset by further lobbying activities directed at the Congress. It also seems likely that the Congress could consider the merits of any judicially-ordered rescission, disagree with it and, in its discretion, decide that the expansion of medicare coverage was nevertheless warranted.
The existence of these equally as plausible alternatives indicates that plaintiff has failed to demonstrate that the relief requested is substantially likely to redress the harm alleged. "[A] federal court [may] act only to redress injury that fairly can be traced to the challenged action of the defendant, and not injury that results from the independent action of some third party not before the court." Simon, supra at 41-2, 98 S.Ct. at 1925-26. The injury complained of, if it ever occurs, will result from action by the Congress, which is an independent third party and not before this court.
Because plaintiff has failed to meet one of the two constitutional prerequisites of standing to maintain this action, we dismiss the complaint without considering plaintiff's motion for a preliminary injunction.
An order consistent with the foregoing has been entered this day.
89 Stat. 1053-54 (1975).
Pub.L. No. 96-499, § 937, amending 42 U.S.C. § 1395x(r).