Florida Ass'n Med. Equip. Dealers v. Apfel, MED-HEALTH

Decision Date05 November 1999
Docket NumberMED-HEALTH,No. 99-11177,NANCY-ANN,99-11177
Citation194 F.3d 1227
Parties(11th Cir. 1999) FLORIDA ASSOCIATION OF MEDICAL EQUIPMENT DEALERS,CARE, et al., Plaintiffs-Appellants, v. KENNETH S. APFEL, Commissioner of Health and Human Services,MIN DEPARLE, Administrator, et al., Defendants-Appellees
CourtU.S. Court of Appeals — Eleventh Circuit

Before CARNES and BARKETT, Circuit Judges, and PAINE*, Senior District Judge.

BARKETT, Circuit Judge:

Medi-Health Care Inc., and C&C Homecare, medical equipment suppliers doing business in Florida, as well as the Florida Association of Medical Equipment Dealers, an association of 300 medical equipment suppliers (collectively "FAMED"), appeal the district court's denial of their petition for a preliminary injunction against Kenneth Apfel, the commissioner of the Social Security Administration ("the government"). On appeal, FAMED argues that the trial court erred in dismissing this suit on the ground that FAMED had failed to establish Article III standing.

Background

In 1998, the Health Care Financing Administration (HCFA), the arm of the U.S. Department of Health & Human Services with authority and responsibility for administering Medicare, initiated a bidding process called a "competitive bidding demonstration project" in Polk County, Florida to contract for medical equipment, prosthetics, orthotics and other medical supplies pursuant to 42 U.S.C. 1395w-3; see also 42 U.S.C. 1395b-1(a)(1). Under the demonstration project, those who wished to sell such items to the government were required to compete by submitting bids. Suppliers whose bids failed to meet competitive price and quality standards were precluded from providing these items under Medicare. The bidding demonstration project had been developed with the assistance of Palmetto GBA (Palmetto) with whom HCFA had contracted for this purpose. To provide feedback regarding design for the demonstration project and to serve as a liaison to interested members of the public, a National Technical Expert Panel (NTEP), composed of representatives of national organizations potentially interested in the Medicare bidding process, was convened. The NTEP met three times for this purpose and was not expected to, and did not, issue a report.

Rather than submitting bids, FAMED filed this lawsuit claiming that HCFA had failed to comply with the Federal Advisory Committee Act (FACA), 5 U.S.C. App. II, 3, which provides that "advisory committee"1 meetings must comply with requirements designed to ensure public access and participation. In its complaint, FAMED claimed that the NTEP was an "advisory committee" within the meaning of FACA whose advice was adopted in what is used today as the bidding demonstration project. FAMED charged that it did not have the opportunity to participate because it never received proper notice of the NTEP meetings which should have been published in the Federal Register 15 days in advance of the meeting. See 5 U.S.C. App. 2, 10(a)(2); 41 C.F.R. Part 101-6.1015(b). FAMED also alleged that the NTEP failed to comply with other FACA provisions such as making available to the public any minutes, transcripts, and other documents from the meeting. See 5 U.S.C. App. 2, 10(c), 10(d). FAMED argues that it would not have lost its opportunity to participate in the NTEP meetings and potentially to influence the structure of the demonstration project, which might have afforded FAMED a better chance to succeed in the bidding process had FACA's requirements been followed.

In its claim for relief, FAMED sought a preliminary injunction enjoining the HCFA from using or relying upon any advice, recommendations, or other materials generated by the work of the NTEP or discussed during NTEP meetings. Plaintiffs also sought to enjoin the bidding process "until HCFA complies with FACA's requirements." The government opposed FAMED's request for a preliminary injunction, arguing first that the plaintiffs lacked subject matter jurisdiction, and second that FAMED's complaint failed to state a claim upon which relief may be granted.

The district court denied the petition for a preliminary injunction on the basis that FAMED had failed to establish Article III standing because FAMED had not pointed to any injury traceable to the alleged FACA violation which could be redressed by the requested injunctive relief. FAMED appeals this determination. This Court reviews Article III standing, a question of law, de novo. Loggerhead Turtle v. County Council of Volusia County, Florida, 148 F.3d 1231, 1236 (11th Cir. 1998).

Discussion

In order to establish Article III standing, a plaintiff must demonstrate: (1) an injury-in-fact, (2) a causal connection between the injury and the conduct complained of, and (3) that the injury is likely to be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 559 (1992); see also Erwin Chemerinsky, Federal Jurisdiction 56 (1999).

FAMED argues that it has suffered three different injuries traceable to HCFA's alleged violation of FACA: (1) it was unable to participate in the NTEP, and therefore to influence the configuration of the bidding project; (2) it would be disadvantaged in a "tainted" bidding project where some bidders had more influence over the structure of the demonstration project than others; and (3) the livelihood of FAMED's membership would be threatened if their bids proved unsuccessful.

In denying FAMED's motion for a preliminary injunction, the district court concluded that the only cognizable injury suffered by FAMED was its inability to participate in the NTEP, but because the NTEP was no longer in existence, such an injury could not be redressed by the issuance of an injunction. FAMED argues that the district court erred in concluding that the only cognizable injury was FAMED's inability to participate in the NTEP, and that this Court's decision in Alabama-Tombigbee Rivers Coalition v. Department of the Interior, 26 F.3d 1103 (11th Cir. 1994), expressly holds that a court may properly enjoin the government's use of a product created by a committee that failed to comply with FACA.

We agree with FAMED that under Alabama-Tombigbee a court may properly enjoin the government's use of a product created by a committee that failed to comply with FACA requirements. However, before we can address the...

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