Kinder v. Geithner, 11–1973.

• Decision Date: 04 October 2012
• Docket Number: No. 11–1973.,11–1973.
• Citation: 695 F.3d 772
• Parties: Peter KINDER, Missouri Lieutenant Governor; Dale Morris; Samantha Hill; Julie Keathley; M.K., Plaintiffs–Appellants, v. Timothy F. GEITHNER, Secretary of the United States Department of Treasury; Hilda Solis, Secretary of the United States Department of Labor; Eric H. Holder, Jr., United States Attorney General; Kathleen Sebelius, Secretary of the United States Department of Health and Human Services, Defendants–Appellees. State of Alabama; State of Alaska; State of Arizona, et al., Amici on Behalf of Appellant, American Association of People with Disabilities; Families USA; Friends of Cancer Research; March of Dimes Foundation, et al., Amici on Behalf of Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

695 F.3d 772

Peter KINDER, Missouri Lieutenant Governor; Dale Morris; Samantha Hill; Julie Keathley; M.K., Plaintiffs–Appellants,

v. Timothy F. GEITHNER, Secretary of the United States Department of Treasury; Hilda Solis, Secretary of the United States Department of Labor; Eric H. Holder, Jr., United States Attorney General; Kathleen Sebelius, Secretary of the United States Department of Health and Human Services, Defendants–Appellees.State of Alabama; State of Alaska; State of Arizona, et al., Amici on Behalf of Appellant,American Association of People with Disabilities; Families USA; Friends of Cancer Research; March of Dimes Foundation, et al., Amici on Behalf of Appellee.

No. 11–1973.

United States Court of Appeals, Eighth Circuit.

Submitted: Oct. 20, 2011.

Filed: Oct. 4, 2012.

Mark F. Hearne, II, argued, St. Louis, MO, Lindsay S.C. Brinton, St. Louis, MO, Robert C. O'Brien and Steven A. Haskins, Los Angeles, CA, on the brief, for appellant.

Beth S. Brinkmann, argued, Mark B. Stern, Alisa Beth Klein, and Dana Kaersvang, on the brief, Washington, DC, for appellee.

Paul D. Clement, Erin E. Murphy, Washington, DC, Scott D. MakarBill Cobb, James D. Blacklock, Austin, TX, Scott D. Makar, Joseph W. Jacquot, Louis F. Hubener, Timothy D. Osterhaus, Blain H. Winship, Tallahassee, FL, Luther Strange, Montgomery, AL, John J. Burns, Juneau, AK, Joseph Sciarrotta, Jr., Michael Tryonof, Phoenix, AZ, John W. Suthers, Denver, CO, Samuel S. Olens, Atlanta, GA, Lawrence D. Wasden, Boise, ID, James D. “Buddy” Caldwell, Baton Rouge, LA, William J. Schneider, Augusta, MN, Bill Schuette, Lansing, MI, Jon Bruning, Lincoln,NE, Mark A. Hutchison, Las Vegas, NV, Wayne Stenehjem, Bismarck, ND, Michael Dewine, Columbus, OH, Linda L. Kelly, Harrisburg, PA, Alan Wilson, Columbia, SC, Marty J. Jackley, Pierre, SD, Mark L. Schurtleff, Salt Lake City, UT, Robert M. McKenna, Olympia, WA, J.B. VanHollen, Madison, WI, on the amicus brief in support of appellants for Texas, Florida, Alabama, Alaska, Arizona, Colorado, Georgia, Idaho, Louisiana, Maine, Michigan, Nebraska, Nevada, North Dakota, Ohio, Pennsylvania, South Carolina, South Dakota, Utah, Washington, and Wisconsin.

Brian S. Koukoutchos, Mandeville, LA, Charles J. Cooper, David H. Thompson, Washington, DC, on the amicus brief in support of appellants for Executive and Legislative Officials of States Within the Eighth Circuit.

Rochelle Bobroff, Simon Lazarus, Washington, DC, on the amicus brief in support of appellees for The American Association of People with Disabilities, The ARC of the United States, Families USA, Friends of Cancer Research, March of Dimes Foundation, Mental Health America, National Breast Cancer Coalition, National Organization for Rare Disorders, and The National Senior Citizens Law Center.

M. Sean Laane, Richard L. Rosen, Michael D. Thorpe, Washington, DC, on the amicus brief in support of appellees for Economic Scholars.

Ian Millhiser, Washington, DC, on the amicus brief in support of appellees for American Nurses Association, American Academy of Pediatrics, American Medical Student Association, Doctors for America, National Hispanic Medical Association, and the National Physicians Alliance.

Barry Friedman, New York, NY, Jeffrey A. Lamken, Robert K. Kry, Martin V. Totaro, Lucas M. Walker, Washington, DC, on the amicus brief in support of appellees for Law Professors Barry Friedman, Matthew Adler, et al.

Thomas M. O'Brien, Danial J. Hammond, Boston, MA, on the amicus brief in support of appellees for The Commonwealth of Massachusetts.

Gillian E. Metzger, Trevor W. Morrison, New York, NY, Andrew J. Pincus, Charles A. Rothfeld, Michael B. Kimberly, Paul W. Hughes, Washington, DC, on the amicus brief in support of appellees for Constitutional Law Professors Jack M. Balkin, Gillian E. Metzger, and Trevor W. Morrison.

John B. Howard, Jr., William F. Brockman, Stephen M. Ruckman, Joshua N. Auerbach, Baltimore, MD, Kamala D. Harris, Sacramento, CA, George Jepsen, Hartford, CT, Joseph R. Biden, III, Wilmington, DE, Irvin B. Nathan, Washington, DC, David M. Louie, Honolulu, HI, Tom Miller, Des Moines, IA, Eric T. Schneiderman, New York, NY, John R. Kroger, Salem, OR, William H. Sorrell, Montpelier, VT, on the amicus brief in support of appellees for The States of Maryland, California, Connecticut, Delaware, Hawaii, Iowa, New York, Oregon and Vermont, and the District of Columbia.

Patrick J. Szymanski, Washington, DC, on the amicus brief in support of appellees for Change to Win.

Judith A. Scott, Walter Kamiat, Mark Schneider, Washington, DC, on the amicus brief in support of appellees for Service Employees International Union.

Johnathan Weissglass, Jennifer Sung, P. Casey Pitts, San Francisco, CA, on the amicus brief in support of appellees for Service Employees International Union and Change to Win.

Before BYE, SMITH, and COLLOTON, Circuit Judges.

COLLOTON, Circuit Judge.

A group of seven plaintiffs, including Samantha Hill and Missouri Lieutenant Governor Peter Kinder (acting in his personal capacity), brought this action to challenge various provisions of the Patient Protection and Affordable Care Act (“the Act”). Pub.L. No. 111–148, 124 Stat. 119 (2010). The district court ¹ dismissed the suit for lack of standing. Hill and Kinder appeal, and we affirm.

I.

Hill and Kinder filed a lawsuit challenging, among other things, the Act's individual mandate. On appeal, they pursue two claims that were raised in their amended complaint: (1) that Congress exceeded its authority under the Commerce Clause and the taxing power when it promulgated the mandate, and (2) that the mandate violates the Due Process Clause of the Fourteenth Amendment by abrogating their rights under the Missouri Health Care Freedom Act, which provides that “[n]o law or rule shall compel, directly or indirectly, any person, employer, or health care provider to participate in any health care system.” Mo.Rev.Stat. § 1.330(1).

The mandate, of course, was the subject of the Supreme Court's recent decision in National Federation of Independent Business v. Sebelius, ––– U.S. ––––, 132 S.Ct. 2566, 183 L.Ed.2d 450 (2012). The provision at issue requires individuals to maintain “minimum essential” health care coverage. 26 U.S.C. § 5000A. Beginning in 2014, individuals who are not exempt and who do not comply must pay the government a “shared responsibility payment,” id. § 5000A(b)(1), which the Supreme Court identified as a “tax” for purposes of Congress's taxing power. Sebelius, 132 S.Ct. at 2594–2600.

The government moved to dismiss the suit, arguing that the district court lacked subject matter jurisdiction and that the complaint failed to state a claim upon which relief could be granted. Hill and Kinder opposed the motion and filed supplemental affidavits with their response. The district court, citing Osborn v. United States, 918 F.2d 724, 729 n. 6 (8th Cir.1990), reasoned that because the government's motion was a “facial attack” on subject matter jurisdiction, the court should consider only the pleadings. It therefore declined to consider the affidavits. But cf. Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975).

The district court ruled that neither Hill nor Kinder had standing to sue and dismissed the complaint for lack of jurisdiction. Hill's complaint, as recounted by the court, was that she desires to obtain only high-deductible “major medical” or “catastrophic” health insurance coverage, but that the Act “allows citizens to maintain catastrophic plans only if an individual is under 30 years of age and certifies that his or her premium payment is more than eight percent of his or her household income.” Am. Compl. ¶ 140. The district court concluded that Hill's complaint misunderstands the statute. Whereas Hill asserted that she could purchase a catastrophic plan only if she is under the age of thirty and meets the test of financial hardship, the statute connects the two criteria with “or” and provides that she need only satisfy one. 42 U.S.C. § 18022(e)(2). Because Hill will be under the age of thirty when the Act takes effect, the district court determined that she would be able to buy a qualifying catastrophic plan, and that she therefore failed to allege an injury. The district court determined that Kinder lacked standing, because he sued in his individual capacity, and he could not allege injury based on his performance of duties as an officer of the State of Missouri.

Hill and Kinder filed a notice of appeal to this court before Sebelius was decided. They disputed the district court's ruling on standing and argued on the merits that the individual mandate violates the Federal Constitution. Shortly after this case was argued and submitted, the Supreme Court granted certiorari in Sebelius. We held this appeal pending a decision, and the Supreme Court upheld the individual mandate as a constitutional exercise of Congress's taxing power. Sebelius, 132 S.Ct. at 2594–2600.

After the Court's decision, we asked the parties to supplement their briefs with a statement of position on this appeal in light of Sebelius. Hill and Kinder continue to pursue their appeal, although it is unclear what relief they now seek. The amended complaint asked the court to declare provisions of the Act unconstitutional and to enjoin the defendants from enforcing those sections against the plaintiffs. The supplemental brief filed by Hill and Kinder in light of Sebelius does not specifically urge those remedies or any other that we can readily discern. The government responds that if the plaintiffs have standing, then the judgment should be affirmed based on Sebelius.

II.

The district court dismissed the suit on the ground that the plaintiffs lack standing. Although the Supreme Court recently addressed the constitutionality of the Act in Sebelius, we are obliged first to consider our jurisdiction. For the reasons that follow, we conclude that the district court correctly ruled that Hill and Kinder...