Physician's Ed. Network, Inc. v. Department of Health, Ed. and Welfare

• Decision Date: 27 April 1981
• Docket Number: No. 80-1759,80-1759
• Citation: 209 U.S.App.D.C. 366,653 F.2d 621
• Parties: PHYSICIANS' EDUCATION NETWORK, INC., For and on behalf of its members, Appellant, v. The DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 621

653 F.2d 621

209 U.S.App.D.C. 366

PHYSICIANS' EDUCATION NETWORK, INC., For and on behalf of its members, Appellant, v. The DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, et al.

No. 80-1759.

United States Court of Appeals, District of Columbia Circuit.

Argued April 6, 1981.

Decided April 27, 1981.

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 79-2701).

Jamie L. Whithen with whom Martin G. Hamberger was on the brief for appellant.

Valerie K. Schurman, Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty., Royce C. Lamberth and Kenneth M. Raisler, Asst. U. S. Attys., Washington, D. C., were on the brief for appellees.

Before MacKINNON, MIKVA and EDWARDS, Circuit Judges.

Opinion PER CURIAM.

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. ¹ In accordance with remarks made by the author of the bill on the Senate floor, a panel of consultants was convened to assist the Secretary with the preparation of the report.

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. ² One difficulty with relying on this Act is that Pub.L. No. 94-182 did not authorize the establishment of an advisory committee. Only if it had done so would the Advisory Committee Act mandate that the legislation "require the membership of the advisory committee to be fairly balanced in terms of the points of view represented" and "contain appropriate provisions" to guard against "inappropriate( ) influence( ) by ... any special interest." 5 U.S.C.App. § 5(b)(2), (3). It is thus apparent that not all of the safeguards of the Advisory Committee Act were operative, even assuming that restrictions placed on legislation could be invoked against the Secretary.

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.

following the enactment of Pub.L. No. 94-182 in December 1975, despite the fact that the report was subject to a four month deadline. Physicians' does not allege that it sought and was denied participation in the panel's meetings, or that it sought and was denied representation on the panel itself. Allegations of this kind have been found sufficient in other cases to support standing to invoke the provisions of the Federal Advisory Committee Act against an agency. ³ Far from acting promptly, Physicians' did not sue until October 1979, more than three years after the report was delivered to Congress in July 1976.

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. ⁴ This development only strengthens the district court's conclusion that there is no substantial likelihood that rescission of the report will redress the injury of Physicians' members. To establish standing Physicians' must now prove that rescission will not merely stay the hand of Congress but move it into action (by repealing the legislation just passed). Physicians' conjecture is thus presently even more tenuous than the claim Judge Pratt aptly characterized as "nothing more than speculation." Cf. Metcalf v. Petroleum 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.

Council, 553 F.2d 176, 183-87 (D.C.Cir.1977) (petroleum consumers lack standing to challenge petroleum industry domination of advisory committee to Department of Interior); see also Mulquenny v. National Commission, 549 F.2d 1115, 1121 (7th Cir. 1977) (opponents of Equal Rights Amendment lacked standing to challenge political composition of women's rights commission because, even assuming injury in fact, it was "wholly conjectural" whether changing composition and conduct of committee would result in continuing rejection of the amendment by the Illinois legislature).

Affirmed.

APPENDIX

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.

FACTS

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 ¹ prepared by defendant HEW in 1976 pursuant to a Congressional directive ² to recommend the appropriateness of reimbursement under the medicare program, Title XVIII of the Social Security Act, 42 U.S.C. § 1395 et seq., for certain services performed by doctors of optometry which are not now reimbursable under the Act. A doctor of optometry is not a physician but rather is a health professional who performs eye examinations to determine the presence of visual, muscular, or neurological abnormalities, and prescribes lenses, other optical aids, or therapy. According to the Institute of Medicine of the National Academy of Sciences, optometrists are trained to recognize disease conditions of the eye and ocular manifestations of other diseases, and to refer patients with these conditions to the appropriate health professional, i. e., an ophthalmologist or other physician. The report at issue here recommends that the range of services for which optometrists may be reimbursed under medicare be expanded to include services now only reimbursable if performed by a physician.

More specifically, under Part B of Title XVIII, which is a voluntary supplemental benefits plan available to any person aged 65 or older, ³ regardless of social security Plaintiff disputes the soundness of this recommendation ⁵ and levels a barrage of criticism at the 1976 report. Plaintiff alleges that defendant deliberately distorted the subject of the study and the report itself, largely because of "undue influence" by lobbyists for the National Association of Optometrists. Plaintiff alleges that defendant purposely selected as consultants for the study a majority of individuals who had a vested interest in the outcome reached and a predisposition to reach that outcome, that the "advisory" committee was selected in violation of the Federal Advisory Committee Act, 5 U.S.C. Appendix I, and the Federal Personnel Manual. Plaintiff further alleges that defendant suppressed from publication in the report findings of the National Institute of Health and the National Eye Institute critical of the report and its conclusion, and wrote the report in such a way as to convey the impression that the findings of these institutions were favorable to the conclusion reached. In addition to allegedly violating the Federal Advisory Committee Act and the Federal Personnel Manual, plaintiff alleges that defendant's conduct violated 42 U.S.C. § 209(f) and § 1395, Pub.L. No. 94-182, supra, and the due process and equal protection guarantees of the United States Constitution.

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