Peterson v . United States et a l . CV-10-170-JL 3/30/11 P
UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Harold Peterson
v. Civil N o . 10-cv-170-JL Opinion N o . 2011 DNH 052 United States of America et a l .
MEMORANDUM ORDER
The issue in this case is whether a Medicare recipient has
standing to challenge the constitutionality of the Patient
Protection and Affordable Care Act (the “Act”), 1 a federal health
care bill enacted last year. Plaintiff Harold Peterson,
proceeding pro s e , brought suit against the United States of
America and other federal defendants, alleging that the Act
violates various provisions of the United States Constitution:
the Commerce Clause,2 the Takings Clause,3 the Presentment
1 See Pub. L . N o . 111-148, 124 Stat. 119 (Mar. 2 3 , 2010), as amended by the Health Care and Education Reconciliation Act of 2010, Pub. L . N o . 111-152, 124 Stat. 1029 (Mar. 3 0 , 2010). 2 See U.S. Const. art. I , § 8 , c l . 3 (giving Congress power “[t]o regulate Commerce . . . among the several States”). 3 See U.S. Const. amend. V (“nor shall private property be taken for public use, without just compensation”). Clause,4 the Presidential Oath of Office Clause,5 and the Ninth
and Tenth Amendments.6 He challenges, in particular, the Act’s
mandate that citizens purchase health insurance coverage, as well
as the manner in which the Act was passed.
The defendants have moved to dismiss the case for lack of
subject-matter jurisdiction, see Fed. R. Civ. P. 12(b)(1),
arguing that Peterson has no standing to challenge the Act
because his Medicare coverage automatically satisfies the Act’s
health insurance mandate and because his other allegations of
injury are too speculative. After hearing oral argument, this
court grants the motion. While the Act, and particularly its
health insurance mandate, may raise interesting constitutional
issues, compare Mead v . Holder, N o . 10-950, 2011 WL 611139, 2011
U.S. Dist. LEXIS 18592 (D.D.C. Feb. 2 2 , 2011) (upholding the Act
4 See U.S. Const. art. I , § 7 , c l . 2 (“Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President . . . . ” ) . 5 See U.S. Const. art. I I , § 1 , c l . 8 (“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”). 6 See U.S. Const. amends. IX (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”) and X (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”).
2 against constitutional challenge), Liberty Univ., Inc. v .
Geithner, N o . 10-15, 2010 WL 4860299, 2010 U.S. Dist. LEXIS
125922 (W.D. V a . Nov. 30 2010) (same), and Thomas More Law Ctr.
v . Obama, 720 F. Supp. 2d 882 (E.D. Mich. 2010) (same), with
Florida v . U.S. Dep’t of Health & Human Servs., 10-91, 2011 WL
285683, 2011 U.S. Dist. LEXIS 8822 (N.D. Fla. Jan. 3 1 , 2011)
(declaring the Act unconstitutional), and Virginia ex rel.
Cuccinelli v . Sebelius, 728 F. Supp. 2d 768 (E.D. V a . 2010)
(declaring the mandate unconstitutional), Peterson has no
standing to litigate them.
I. Applicable legal standard
“Federal courts are courts of limited jurisdiction. They
possess only that power authorized by Constitution and statute.”
United States v . Coloian, 480 F.3d 4 7 , 50 (1st Cir. 2007)
(quoting Kokkonen v . Guardian Life Ins. C o . of Am., 511 U.S. 375,
377 (1994)) (formatting altered). “It is to be presumed that a
cause [of action] lies outside this limited jurisdiction,” and
the burden lies with the plaintiff, as the party invoking the
court’s jurisdiction, to establish that it extends to his claims.
Kokkonen, 511 U.S. at 377; see also Pejepscot Indus. Park v . M e .
Cent. R.R., 215 F.3d 195, 200 (1st Cir. 2000). “Without
jurisdiction the court cannot proceed at all in any cause.
3 Jurisdiction is power to declare the law, and when it ceases to
exist, the only function remaining to the court is that of
announcing the fact and dismissing the cause.” Steel C o . v .
Citizens for a Better Env’t, 523 U.S. 8 3 , 94 (1998).
In evaluating the defendants’ motion to dismiss for lack of
jurisdiction under Rule 12(b)(1), this court must “accept as true
all material allegations of the complaint, and . . . construe the
complaint in favor of the complaining party.” Warth v . Seldin,
422 U.S. 4 9 0 , 501 (1975). Moreover, because Peterson is
proceeding pro se, 7 his complaint must be construed liberally,
“held to less stringent standards than formal pleadings drafted
by lawyers.” Estelle v . Gamble, 429 U.S. 9 7 , 106 (1976). But
these standards do not require the court to “credit bald
assertions, subjective characterizations, . . . problematic
suppositions,” or “empirically unverifiable conclusions, not
logically compelled, or at least supported, by the stated facts”
in the complaint. Sea Shore Corp. v . Sullivan, 158 F.3d 5 1 , 54
(1st Cir. 1998) (formatting altered).
7 Peterson informed the court at oral argument that he used to be an attorney, but is no longer practicing. The court will treat him as it would any other pro se litigant.
4 II. Background
The Patient Protection and Affordable Care Act, passed by
Congress and signed into law by the President in March 2010, is a
federal statute designed to reform the American health care
system. The Act mandates that every citizen, other than those
falling within specified exceptions, maintain a minimum level of
health care insurance coverage beginning in 2014 (or else pay a
penalty to be assessed and collected as a t a x ) . See 26 U.S.C. §
5000A.8 Once that mandate becomes effective, health insurance
plans will be prohibited from excluding coverage for pre-existing
medical conditions. See 42 U.S.C. § 300gg-3. The Act provides
for subsidies that will limit the costs of maintaining minimum
coverage for citizens making less than 400 percent of the poverty
level (currently about $88,000 for a family of four), see 26
U.S.C. § 36B, and conversely imposes a tax on high-cost health
insurance plans, see id. § 4980I, known colloquially as
“Cadillac” plans.
The Act also makes a number of changes to Medicare, a
federal program that provides health care coverage for most
citizens 65 years of age or older. For example, the Act
8 The Act also requires large employers to offer their full- time employees a minimum level of health care insurance coverage beginning in 2014 (or else pay a penalty to be assessed and collected as a t a x ) . See 26 U.S.C. § 4980H.
5 increases the Medicare prescription drug benefit, imposes
additional Medicare taxes on high-wage earners and investment
income, constrains the rates that Medicare pays to certain types
of health care providers, and brings the subsidies for Medicare
Advantage plans (private plans through which beneficiaries may
elect to receive Medicare benefits) into line with traditional
Medicare payments. See Patricia A . Davis et a l . , Cong. Research
Serv., R41196, Medicare Provisions in the Patient Protection and
Affordable Care Act: Summary and Timeline (Nov. 3 , 2010). The
Act expressly provides that none of its provisions “shall result
in a reduction of guaranteed benefits” to Medicare participants.
Pub. L . N o . 111-148, supra, §§ 3601 and 3602.
Peterson, a citizen of New Hampshire, is self-employed and
currently receives health care coverage through Medicare. He
also purchases supplemental private health insurance from Anthem
Blue Cross and Blue Shield. Anthem recently “advised [him] of an
increase in his premiums beginning at the expiration of his
present [insurance] term because of the Act.” According to media
reports, Anthem is one of many insurance companies that have
attributed premium increases to the Act. See Janet Adamy, Health
Outlays Still Seen Rising, Wall S t . J., Sept. 8 , 2010, at A 7 .
Based on “information broadcast and published by various news
media,” Peterson also fears that he “may suffer a loss of
6 Medicare benefits in subsequent years” and “increased costs” as a
result of the Act, which by “reducing the Medicare budget . . .
could endanger the healthcare coverage for all members of
Medicare.”
Peterson brought this pro se lawsuit in May 2010 to
challenge the constitutionality of the Act, seeking both
declaratory and injunctive relief. He named an array of
defendants: the United States of America, the United States
Senate and House of Representatives, the President, and the
Secretary of Health and Human Services. His complaint alleges,
in particular, that the Act’s mandate that citizens purchase
health insurance coverage violates the Takings Clause (because it
takes “private property . . . for public use, without just
compensation,” U.S. Const. amend. V ) , the Commerce Clause
(because it does not “regulate Commerce . . . among the several
States,” U.S. Const. art. I , § 8 , c l . 3 , but rather decisions not
to engage in commerce by purchasing insurance), and the Ninth and
Tenth Amendments (because it falls outside of Congress’s
enumerated powers).
Peterson also claims that the Act is unconstitutional
because of the manner in which it was passed. He alleges, in
particular, that the Act violates the Presentment Clause, see
U.S. Const. art. I , § 7 , c l . 2 , because the version passed by the
7 Senate differs from the one passed by the House (due to the
reconciliation bill cited in note 1 , supra), and because the Act
covers subjects other than health care, such as student loans.
Relatedly, he alleges that the President violated his oath of
office, see U.S. Const. art. I I , § 1 , c l . 8 , by knowingly
signing an unconstitutional bill.9
III. Analysis
The Constitution “limits the jurisdiction of federal courts
to ‘Cases’ and ‘Controversies.’” Lujan v . Defenders of Wildlife,
504 U.S. 555, 559 (1992) (quoting U.S. Const. art. I I I , § 2 , c l .
1). “To satisfy the Constitution’s ‘case or controversy’
requirement, a party seeking relief in federal court must show
that he has suffered an actual injury, which is fairly traceable
to the defendant’s conduct and redressable by a favorable
judicial decision.” Coggeshall v . Mass. Bd. of Registration of
Psychologists, 604 F.3d 6 5 8 , 666 (1st Cir. 2010) (citing Lujan,
504 U.S. at 560-61). That is commonly known as the doctrine of
“standing.” Peterson argues that “standing is a fiction created
by the courts” and that he need not satisfy any such requirement.
9 Peterson also initially alleged that the Act violated the Interstate Privileges and Immunities Clause, see U.S. Const. art. IV, § 2 , c l . 1 , but has since withdrawn that claim, acknowledging that it lacks merit. See document n o . 2 3 , at 3 .
8 But the Supreme Court has called the standing requirement
“essential and unchanging,” Lujan, 504 U.S. at 5 6 0 , and this
court must follow Supreme Court precedent. See, e.g., Evans v .
Thompson, 518 F.3d 1 , 9 (1st Cir. 2008) (“Many limitations on the
ability of federal courts to grant relief originate . . . from
binding Supreme Court precedent.”).
“Standing is not dispensed in gross. Rather, a plaintiff
must demonstrate standing for each claim he seeks to press and
for each form of relief that is sought.” Davis v . Fed. Election
Comm’n, 554 U.S. 7 2 4 , 734 (2008) (quotations omitted). In this
case, the defendants argue that Peterson lacks standing to bring
his claims challenging the Act’s health insurance mandate because
he is covered by Medicare, which automatically satisfies the
mandate. They also argue that Peterson lacks standing to bring
his other claims challenging the manner in which the Act was
passed, because his allegations of injury are too speculative
(and because the President and members of Congress have absolute
immunity from such claims 10 ). This court will analyze each set
of claims in turn. As explained below, Peterson lacks standing
to litigate any of them.
10 This court need not reach that immunity issue, in light of its conclusion that Peterson lacks standing.
9 A. Claims challenging the mandate
Many courts have already considered whether citizens have
standing to challenge the constitutionality of the Act’s health
insurance mandate, with mixed results. Some courts have
concluded that citizens had standing where they plausibly alleged
that they would incur financial or other burdens to satisfy the
mandate. See Mead, 2011 WL 611139, at * 5 - 8 , 2011 U.S. Dist.
LEXIS 18592, at *15-27; Goudy-Bachman v . U.S. Dep’t of Health &
Human Servs., N o . 10-763, 2011 WL 223010, at * 4 - 7 , 2011 U.S.
Dist. LEXIS 6309, at *11-19 (M.D. P a . Jan. 2 4 , 2011); U.S.
Citizens Ass’n v . Sebelius, N o . 10-1065, 2010 WL 4947043, at * 5 ,
2010 U.S. Dist. LEXIS 123481, at *13 (N.D. Ohio Nov. 2 2 , 2010);
Florida v . U.S. Dep’t of Health & Human Servs., 716 F. Supp. 2d
1120, 1144-48 (N.D. Fla. 2010); Thomas More, 720 F. Supp. 2d at
887-89.
Other courts have found no standing because the plaintiffs’
allegations of injury were too speculative, or reflected merely a
generalized grievance with the Act. See Bryant v . Holder, N o .
10-76, 2011 WL 710693, at *8-13, 2011 U.S. Dist. LEXIS 23975, at
*24-40 (S.D. Miss. Feb. 3 , 2011); N.J. Physicians, Inc. v . Obama,
N o . 10-1489, 2010 WL 5060597, at * 3 - 7 , 2010 U.S. Dist. LEXIS
129445, at *8-22 (D.N.J. Dec. 8 , 2010); Shreeve v . Obama, N o . 10-
7 1 , 2010 WL 4628177, at * 2 - 4 , 2010 U.S. Dist. LEXIS 118631, at
10 *7-11 (E.D. Tenn. Nov. 4 , 2010); Baldwin v . Sebelius, N o . 10-
1033, 2010 WL 3418436, at * 3 - 4 , 2010 U.S. Dist. LEXIS 89192, at
*8-13 (S.D. Cal. Aug. 2 7 , 2010). 11
This appears to be the first case, however, brought by a
Medicare recipient. As the defendants note, Medicare coverage
automatically satisfies the Act’s health insurance mandate. See
26 U.S.C. § 5000A(f)(1)(A)(I). So Peterson will not have to
incur any financial burdens, or indeed do anything at all, to
satisfy the mandate. The federal government will satisfy it for
him. C f . Mead, 2011 WL 611139, at * 6 , 2011 U.S. Dist. LEXIS
18592, at *17-19 (noting, in dicta, that plaintiff who would
become Medicare-eligible by 2014 would not be subject to
penalties for failing to satisfy the mandate, “which compels the
conclusion that she lacks standing”). Because Peterson has not
plausibly alleged an injury “fairly traceable” to the mandate,
Coggeshall, 604 F.3d at 666 (citing Lujan, 504 U.S. at 560-61),
he lacks standing to bring his claims challenging the mandate
under the Takings Clause, the Commerce Clause, and the Ninth and
Tenth Amendments. All of those claims must therefore be
11 Another case found standing for uninsured citizens, but not for those who already have private health insurance. Liberty Univ., 2010 WL 4860299, at *4-7 & n.6, 2010 U.S. Dist. LEXIS 125922, at *11-26 & n.6.
11 dismissed under Rule 12(b)(1) for lack of subject-matter
jurisdiction.
B. Claims challenging the Act’s passage
Peterson’s other set of claims challenge the manner in which
the Act was passed. He makes essentially two arguments for
standing on those claims. The first is that the Act has caused
his supplemental private health insurance premiums to rise. But
for that injury to confer standing, “it must be likely, as
opposed to merely speculative, that the injury will be redressed
by a favorable decision.” Lujan, 504 U.S. at 561. Peterson is
not seeking monetary damages in this case, so there is no
likelihood that the premium increases will be redressed in that
manner. And his supplemental insurer is not a party to this
case, so a judgment in Peterson’s favor would not require it to
rescind or reduce the premium increases. Peterson is merely
speculating about how a third party might respond if the Act is
struck down as unconstitutional.
“There is no redressability, and thus no standing, where (as
is the case here) any prospective benefits depend on an
independent actor who retains ‘broad and legitimate discretion
the courts cannot presume either to control or to predict.’”
Glanton ex rel. ALCOA Prescription Drug Plan v . AdvancePCS Inc.,
12 465 F.3d 1123, 1125 (9th Cir. 2006) (quoting ASARCO, Inc. v .
Kadish, 490 U.S. 605, 615 (1989) (plurality opinion)). For
example, in Glanton, the “[p]laintiffs claim[ed] that, if their
suit [was] successful” in proving that the defendant, a pharmacy
benefit manager, charged their health plans too much for
prescription drugs, “the plans’ drug costs [would] decrease, and
that the plans might then reduce contributions or co-payments.”
Id. But the Ninth Circuit Court of Appeals found no standing,
explaining that “nothing would force [the health plans] to” pass
any savings down to the plaintiffs and that the plans “would be
free” to keep the savings for themselves. Id.
While the First Circuit Court of Appeals has not yet
confronted a similar situation, “[o]ther circuits that have
considered this issue have reached the same conclusion” as the
Ninth Circuit. Id. (citing examples); see also 15 James Wm.
Moore et a l . , Moore’s Federal Practice § 101.42[5], at 101-87 (3d
ed. 2010). For example, in Burton v . Central Interstate Low-
Level Radioactive Waste Compact Comm’n, 23 F.3d 2 0 8 , 210 (8th
Cir. 1994), the plaintiffs claimed that if they succeeded in
proving that the defendant, an interstate waste disposal
commission, had imposed unlawful taxes on their electricity
provider, the provider “would adjust its rates” downward. Id.
But the Eighth Circuit Court of Appeals found no standing,
13 explaining that the complaint “does not allege . . . that state
law obligates [the provider] to base its rates in any way on
[the] costs” in question, so “it is ‘merely speculative’ here
whether a favorable decision would affect the . . . rate that
[plaintiff] pays.” Id. (quoting Lujan, 504 U.S. at 5 6 1 ) . The
same analysis applies here.12
Peterson also argues that he has standing because the Act
“may” cause him to “suffer a loss of Medicare benefits in
subsequent years,” resulting in increased out-of-pocket costs for
health care. But the Act expressly states that none of its
provisions “shall result in a reduction of guaranteed benefits”
to Medicare participants. Pub. L . N o . 111-148, §§ 3601 and 3602.
Of course, the mere existence of that provision does not
necessarily guarantee its intended result. At this point,
however, one can only speculate about what the Act’s ultimate
effect on Medicare benefits will b e . While the Act does include
some provisions designed to contain Medicare spending, it also
increases Medicare benefits in some respects (e.g., for
prescription drugs) and assesses new taxes to help pay for them.
12 This is not a case of “procedural injury,” i.e., deprivation of procedural rights, where “plaintiffs receive special treatment” and the redressability requirement is somewhat less demanding. Nulankeyutmonen Nkihtaqmikon v . Impson, 503 F.3d 1 8 , 27 (1st Cir. 2007) (quotation omitted).
14 See Part I I , supra; Davis et a l . , supra. Peterson’s speculation
that the net effect of the Act “may” be a future reduction of
benefits--contrary to the Act’s express language--is not enough
to confer standing.
Moreover, Peterson has not specified which of the Act’s
changes to Medicare would affect him personally, or explained how
they would do s o . See, e.g., Bingham v . Massachusetts, 616 F.3d
1 , 3 (1st Cir. 2010) (“a vague allegation of harms . . . is not
the kind of concrete, particularized injury required to show
standing”). He is merely raising a general grievance about
changes to a program that provides health care coverage to most
citizens (once they reach the age threshold). The Supreme Court
has “consistently held that a plaintiff raising only a generally
available grievance about government--claiming only harm to his
and every citizen’s interest in proper application of the
Constitution and laws, and seeking relief that no more directly
and tangibly benefits him than it does the public at large--does
not state an Article III case or controversy.” Lujan, 504 U.S.
at 573-74; see also, e.g., Hollander v . McCain, 566 F. Supp. 2d
6 3 , 67 (D.N.H. 2008).
In sum, Peterson has not alleged sufficient facts, relating
either to his Medicare benefits or his supplemental private
health insurance premiums, to give him standing to challenge the
15 manner in which the Act was passed. His claims under the
Presentment Clause and Presidential Oath of Office Clause must
therefore be dismissed under Rule 12(b)(1) for lack of subject-
matter jurisdiction.
Moreover, even if Peterson had standing to bring those
claims, they would be dismissed on the merits anyway. See Fed.
R. Civ. P. 12(b)(6); document n o . 21 (ordering Peterson, after
oral argument, to show cause why the claims should not be
dismissed under Rule 12(b)(6)). Peterson has not articulated a
viable theory in support of either claim. Nor has this court
been able to identify one:
• Peterson alleges, first, that the Act violates the Presentment Clause because the version passed by the Senate differs from the one passed by the House, due to the reconciliation bill cited in note 1 , supra. But the House and Senate each passed, and the President signed, both bills, so that claim has no merit. Cf., e.g., Nevada v . Watkins, 914 F.2d 1545, 1557 (9th Cir. 1990) (deeming a Presentment Clause challenge “unpersuasive in view of the fact . . . that [a reconciliation bill] was passed in accordance with” the clause). 13
• Peterson alleges that the Act also violates the Presentment Clause because it covers subjects other than health care,
13 If Peterson is disputing that those bills each passed the House and Senate, then his claim is barred by the “enrolled bill rule, which “requires the judicial department . . . to accept, as having passed Congress, all bills authenticated” in regular form by the appropriate House and Senate officials. Marshall Field & C o . v . Clark, 143 U.S. 649, 672 (1892); see also United States v . Farmer, 583 F.3d 1 3 1 , 151-52 (2d Cir. 2009); Pub. Citizen v . U.S Dist. C t . for D.C., 486 F.3d 1342, 1349-50 (D.C. Cir. 2007).
16 such as student loans. But there is no “single-subject” requirement in the Presentment Clause, as there is in many state constitutions. See 73 Am. Jur. 2d Statutes § 55 (2010).
Finally, Peterson alleges that the President violated his oath of office by knowingly signing an unconstitutional bill. But courts have consistently ruled that such a claim s not cognizable. See, e.g., Ramp v . Bush, N o . 08-336 2008 WL 686727, at * 1 , 2008 U.S. Dist. LEXIS 19401, at *1 (N.D. Ohio Mar. 1 3 , 2008) (explaining that whether the President complied with his oath of office is “indisputably a political question,” not a justiciable o n e ) ; Catholic Charities CYO v . Chertoff, N o . 07-1307, 2007 WL 2344995, at * 8 , 2007 U.S. Dist. LEXIS 62732, at *22 (N.D. Cal. Aug. 1 6 , 2007); Sadowski v . Bush, 293 F. Supp. 2d 1 5 , 19 (D.D.C. 2003). Moreover, the claim is entirely derivative of Peterson’s other (dismissed) claims, in that it would require a showing that the Act violates the Constitution in some other respect.
IV. Conclusion
For the reasons set forth above, the defendants’ motion to
dismiss the case for lack of subject matter jurisdiction14 is
GRANTED. The clerk shall enter judgment accordingly and close
the case.
SO ORDERED.
Joseph N. Laplante nited States District Judge
Dated: March 3 0 , 2011
14 Document n o . 1 0 .
17 cc: Harold Peterson, pro se Eric R. Womack, Esq. T . David Plourde, Esq.