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 .

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,

(Mar. 2 3 , 2010), as amended by the Health Care and Education Reconciliation Act of 2010, Pub. L . N o . 111-152,

(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,

,

(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,

,

(W.D. V a . Nov. 30 2010) (same), and Thomas More Law Ctr.

v . Obama,

(E.D. Mich. 2010) (same), with

Florida v . U.S. Dep’t of Health & Human Servs., 10-91,

,

(N.D. Fla. Jan. 3 1 , 2011)

(declaring the Act unconstitutional), and Virginia ex rel.

Cuccinelli v . Sebelius,

(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,

7 , 50 (1st Cir. 2007)

(quoting Kokkonen v . Guardian Life Ins. C o . of Am.,

(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,

; see also Pejepscot Indus. Park v . M e .

Cent. R.R.,

(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,

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,

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,

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,

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,

(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,

5 8 , 666 (1st Cir. 2010) (citing Lujan,

). 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,

6 0 , and this

court must follow Supreme Court precedent. See, e.g., Evans v .

Thompson,

, 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,

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,

, at * 5 - 8 ,

; Goudy-Bachman v . U.S. Dep’t of Health &

Human Servs., N o . 10-763,

, at * 4 - 7 ,

(M.D. P a . Jan. 2 4 , 2011); U.S.

Citizens Ass’n v . Sebelius, N o . 10-1065,

, at * 5 ,

, at *13 (N.D. Ohio Nov. 2 2 , 2010);

Florida v . U.S. Dep’t of Health & Human Servs.,

(N.D. Fla. 2010); Thomas More,

.

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,

, at *8-13,

, at

*24-40 (S.D. Miss. Feb. 3 , 2011); N.J. Physicians, Inc. v . Obama,

N o . 10-1489,

, at * 3 - 7 ,

(D.N.J. Dec. 8 , 2010); Shreeve v . Obama, N o . 10-

7 1 ,

, at * 2 - 4 ,

, at

10 *7-11 (E.D. Tenn. Nov. 4 , 2010); Baldwin v . Sebelius, N o . 10-

1033,

, at * 3 - 4 ,

, 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,

, at * 6 ,

(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,

(citing Lujan,

),

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.,

, at *4-7 & n.6,

, 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,

. 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

(9th Cir. 2006) (quoting ASARCO, Inc. v .

Kadish,

(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.”

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.

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.

(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,

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.

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.”

(quoting Lujan,

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,

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,

, 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,

; see also, e.g., Hollander v . McCain,

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,

(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,

(1892); see also United States v . Farmer,

3 1 , 151-52 (2d Cir. 2009); Pub. Citizen v . U.S Dist. C t . for D.C.,

, 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

, at * 1 ,

, 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,

, at * 8 ,

, at *22 (N.D. Cal. Aug. 1 6 , 2007); Sadowski v . Bush,

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.

18