Nova Health Systems v. Gandy

• Decision Date: 20 July 2005
• Docket Number: No. 02-5094.,02-5094.
• Citation: 416 F.3d 1149
• Parties: NOVA HEALTH SYSTEMS, doing business as Reproductive Services, on behalf of itself, its staff and its patients, Plaintiff-Appellee, v. Dean GANDY, in his official capacity as Executive Director of the University Hospital Authority; Terry L. Cline, in his official capacity as Commissioner of the Oklahoma Department of Mental Health and Substance Abuse Services; Dr. James Halligan, in his official capacity as President of Oklahoma State University; David L. Boren, in his official capacity as President of the University of Oklahoma, Defendants-Appellants, and Mike Fogarty, in his official capacity as Chief Executive Officer of the Oklahoma Health Care Authority, Defendant. Seventy-Six Oklahoma State Legislators, Amicus Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

416 F.3d 1149

NOVA HEALTH SYSTEMS, doing business as Reproductive Services, on behalf of itself, its staff and its patients, Plaintiff-Appellee, v. Dean GANDY, in his official capacity as Executive Director of the University Hospital Authority; Terry L. Cline, in his official capacity as Commissioner of the Oklahoma Department of Mental Health and Substance Abuse Services; Dr. James Halligan, in his official capacity as President of Oklahoma State University; David L. Boren, in his official capacity as President of the University of Oklahoma, Defendants-Appellants, and Mike Fogarty, in his official capacity as Chief Executive Officer of the Oklahoma Health Care Authority, Defendant.

Seventy-Six Oklahoma State Legislators, Amicus Curiae.

No. 02-5094.

United States Court of Appeals, Tenth Circuit.

July 20, 2005.

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Teresa Stanton Collett, Houston, TX, for Amicus Curiae in support of Defendants-Appellants (Elizabeth R. Sharrock, Assistant Attorney General, Oklahoma City, OK, for Defendants-Appellants on the briefs).

Bebe J. Anderson, Center for Reproductive Rights, New York, NY, (M.M. Hardwick, Tulsa, OK, with her on the briefs) for Plaintiff-Appellee.

Before EBEL, BRISCOE and TYMKOVICH, Circuit Judges.

ORDER

We GRANT Appellee's Petition for Panel Rehearing for the limited purpose of withdrawing the previous panel opinion and concurring/dissenting opinion and substituting a revised panel opinion and concurring/dissenting opinion. In all other regards, the Petition for Panel Rehearing is DENIED.

A judge of the court called for a vote on the petition for rehearing en banc. A vote was taken, and a majority of the active judges of the court failed to vote for en banc rehearing.¹ Fed. R. App. P. 35(f). Therefore, the suggestion for en banc rehearing is DENIED.

ABEL, Circuit Judge.

An Oklahoma statute makes abortion providers liable for any subsequent medical costs that may be required because of an abortion performed on a minor without parental consent or knowledge. Seeking to challenge the constitutionality of that statute, Nova Health Services ("Nova"), an abortion provider, brought this action for injunctive and declaratory relief against various officials who oversee certain public health care facilities in Oklahoma. These public officials have not attempted to recover any medical costs from Nova under the challenged statute, although it is possible that they may seek to do so sometime in the future.

The district court held that there was a justiciable case or controversy between the parties and entered summary judgment against the defendants. The court issued declaratory and injunctive relief against the defendants, declaring that the Oklahoma statute imposed an unconstitutional burden on a woman's ability to obtain an abortion and was excessively vague.

We now hold that Nova lacked standing to bring this lawsuit because it has not shown that the injury it may have suffered due to the challenged Oklahoma law was caused by these particular defendants or that it would be redressed by a judgment against them. Indeed, nothing in the record distinguishes these defendants from any other party who might one day have the occasion to seek compensatory damages under the challenged statute as a civil plaintiff. A party may not attack a tort statute in federal court simply by naming as a defendant anyone who might someday have a cause of action under the challenged law.

Absent a genuine case or controversy between the parties, it is not constitutionally permissible for the federal courts to decide the issues presented. Accordingly, we VACATE the order of the district court against the defendants in this appeal,² and DISMISS for lack of jurisdiction.

BACKGROUND

Prior to June 2001, Nova offered abortions to minors without requiring that they first notify a parent. According to Nova, it "saw approximately one to two minors a month who had not consulted with a parent regarding their abortion." When a prospective minor patient stated that she had not talked to a parent about the abortion, Nova would encourage her to do so but would ultimately leave that decision to the patient. In "many cases," the minor eventually would choose to consult with a parent about the abortion.

In June 2001, Oklahoma enacted a law providing that:

Any person who performs an abortion on a minor without parental consent or knowledge shall be liable for the cost of any subsequent medical treatment such minor might require because of the abortion.

Okla. Stat. tit. 63, § 1-740. Although this law applies only to abortions performed on minors without parental "consent or knowledge," Nova responded by deciding that, in the future, it would require minors to produce in-person parental consent in order to obtain an abortion there. Since § 1-740 came into effect, Nova alleges that it has "turn[ed] away young women who have valid and compelling reasons for not involving their parents in their decision." More specifically, Nova asserts that between July 2001 and January 2002 at least 31 minors declared that they would not bring a parent to the clinic to give consent.³

Less than a week after § 1-740 came into effect, Nova filed the instant lawsuit in federal district court seeking declaratory and injunctive relief. The four defendants in this appeal are Oklahoma public officials whose functions include overseeing certain state medical institutions. Nova alleged in its complaint that each of these institutions provide some form of medical treatment services, but the record does not detail the scope of their activities.

Dean Gandy is the Executive Director of the University Hospitals Authority, which oversees Oklahoma Memorial Hospital and Children's Hospital of Oklahoma. See Okla. Stat. tit. 63, § 3204. Terry L. Cline is the Commissioner of the Oklahoma Department of Mental Health and Substance Abuse Services, which manages state institutions designed to treat mental illness and drug and alcohol dependency. See Okla. Stat. tit. 43A, § 2-102. David L. Boren is the President of the University of Oklahoma, which includes the University of Oklahoma Health Science Center in Tulsa and the University of Oklahoma Medical Center in Oklahoma City. See Okla. Stat. tit. 70, §§ 3103, 3301. James Halligan is the President of Oklahoma State University, which includes the Oklahoma State University College of Osteopathic Medicine and Surgery in Tulsa. See Okla. Stat. tit. 70, §§ 3103, 3423.

Before the district court, Nova argued that § 1-740 is unconstitutional because it lacks an exception for abortions performed in medical emergencies, lacks a judicial bypass procedure, and is impermissibly vague. The defendants argued, among other things, that Nova failed to demonstrate Article III standing. The district court denied the defendants' motions to dismiss and motions for summary judgment, and granted Nova's motion for summary judgment. The defendants listed above appealed. For the reasons discussed below, we VACATE the judgments against these defendants and DISMISS for lack of standing.⁴

ANALYSIS

As an irreducible constitutional minimum, a plaintiff must satisfy three criteria in order for there to be a "case or controversy" that may be resolved by the federal courts. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). First, the plaintiff must have suffered an "injury in fact"— an invasion of a legally protected interest that is both (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. Id. Second, there must be a causal connection between that injury and the challenged action of the defendant — the injury must be "fairly traceable" to the defendant, and not the result of the independent action of some third party. Id. Finally, it must be likely, not merely speculative, that a favorable judgment will redress the plaintiff's injury. Id. at 561, 112 S.Ct. 2130.

We review questions of standing de novo. Utah v. Babbitt, 137 F.3d 1193, 1203 (10th Cir.1998). As the party seeking to invoke federal jurisdiction, the plaintiff (here Nova) has the burden of establishing each of these three elements of Article III standing. See Lujan, 504 U.S. at 561, 112 S.Ct. 2130. At the summary judgment stage, the plaintiff must set forth by affidavit or other evidence specific facts that, if taken as true, establish each of these elements. Id. "A federal court is powerless to create its own jurisdiction by embellishing otherwise deficient allegations of standing." Whitmore v. Arkansas, 495 U.S. 149, 155-56, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990).

Standing is determined as of the time the action is brought. See Smith v. Sperling, 354 U.S. 91, 93 n. 1, 77 S.Ct. 1112, 1 L.Ed.2d 1205 (1957); see also Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 180, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) ("[W]e have an obligation to assure ourselves that [plaintiff] had Article III standing at the outset of the litigation.") (emphasis added); Focus on the Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1275 (11th Cir.2003) ("Article III standing must be determined as of the time at which the plaintiff's complaint is filed."); Carr v. Alta Verde Indus., Inc., 931 F.2d 1055, 1061 (5th Cir.1991) ("As with all questions of subject matter jurisdiction except mootness, standing is determined as of the date of the filing of the complaint."). Accordingly, the question we face is whether, as of June 2001, Nova faced a concrete and actual or imminent injury in fact that was caused by the defendants in this case and that was redressable by a favorable judicial order.⁵

A. Injury In Fact

As noted above, an injury in fact must be actual or imminent, not conjectural or hypothetical. Lujan, 504 U.S. at 560, 112 S.Ct. 2130. "Allegations of possible future injury do not satisfy the requirements of Art. III. A threatened injury must be `certainly impending'...