Date: 09-02-2014

Case Style: Nick Coons v. Jacob L. Lew

Case Number: 13-15324

Judge: Susan P. Graber

Court: United States Court of Appeals for the Ninth Circuit on appeal from the District of Arizona (Maricopa County)

Plaintiff's Attorney: Christina Sandefur (argued), Clint Bolick, Kurt Altman, and
Nicholas C. Dranias, Goldwater Institute, Phoenix, Arizona,
for Plaintiffs-Appellants.

Defendant's Attorney: Jeffrey E. Sandberg (argued), Dana Kaersvang, and Alisa B.
Klein, Attorneys, John S. Leonardo, United States Attorney,
and Stuart F. Delery, Acting Assistant Attorney General,
Civil Division, United States Department of Justice,
Washington, D.C., for Defendants-Appellees.

Timothy Sandefur, Pacific Legal Foundation, Sacramento,
California, for Amici Curiae.

Description: Plaintiffs Nick Coons and Eric N. Novack brought a facial
constitutional challenge to two provisions of the Patient
Protection and Affordable Care Act, Pub. L. No. 111-148,
124 Stat. 119 (2010), as amended by Health Care and
Education Reconciliation Act of 2010, Pub. L. No. 111-152,
124 Stat. 1029 (“Affordable Care Act”): the individual
mandate, which requires that individuals maintain a minimum
level of health insurance coverage or pay a penalty; and the
establishment of the Independent Payment Advisory Board
(“IPAB”), a new advisory board charged with issuing budget
recommendations for the Medicare program in the event that
the program exceeds growth projections. Plaintiffs also
sought a declaration that the Arizona Health Care Freedom
Act (“Arizona Act”), which amends the Arizona constitution
to make it lawful to abstain from purchasing health insurance
without paying any penalty, is not preempted by the
Affordable Care Act. After the Supreme Court issued
National Federation of Independent Business v. Sebelius,
132 S. Ct. 2566 (2012), the district court dismissed Plaintiffs’
claims and entered judgment for Defendants Timothy
Geithner, Kathleen Sebelius, Eric Holder, Jr., and Barack
Hussein Obama, in their official capacities. Reviewing de
novo, Stout v. FreeScore, LLC, 743 F.3d 680, 684 (9th Cir.
2014); Demers v. Austin, 746 F.3d 402, 409 (9th Cir. 2014),
COONS V. LEW 5
we affirm in part, and in part vacate and remand with
instructions to dismiss for lack of jurisdiction.
BACKGROUND
In March 2010, Congress passed and the President signed
into law the Affordable Care Act. The Act establishes a
comprehensive regulatory system intended to increase the
number of Americans covered by medical insurance and to
decrease the cost of medical care. Two of its provisions are
at issue in this appeal: the provision commonly known as the
individual mandate, 26 U.S.C. § 5000A; and the provision
establishing IPAB, 42 U.S.C. § 1395kkk.
The individual mandate is codified in Title 26 of the
Internal Revenue Code. 26 U.S.C. § 5000A. The mandate
requires all “applicable individuals,” id. § 5000A(d), and their
dependents to maintain “minimum essential coverage,” id.
§ 5000A(f), for every month beginning in January 2014, id.
§ 5000A(a). If an individual fails to meet that requirement
and does not qualify for an exemption, id. § 5000A(e), the
individual must pay a penalty, termed the “shared
responsibility payment,” with his or her annual income tax
return, id. § 5000A(b).
IPAB is a new 15-member administrative board that will
monitor the growth of Medicare spending and, if actual
growth exceeds projected growth, will develop and submit
recommendations to reduce the growth rate to the “savings
target” set by the Chief Actuary of the Centers for Medicare
& Medicaid Services. 42 U.S.C. § 1395kkk. The
requirement that IPAB issue recommendations for a given
year is triggered only if the Chief Actuary determines that
actual growth will exceed projected growth in a particular
6 COONS V. LEW
year. Id. § 1395kkk(b). If the Chief Actuary makes that
determination, then IPAB is required to recommend measures
to reduce growth that the Secretary of Health and Human
Services (“Secretary”) must implement in the absence of an
affirmative veto by Congress.1 Id. If IPAB fails to make the
required recommendations for a given year, for lack of
membership or otherwise, its duties fall to the Secretary. Id.
§ 1395kkk(c)(5). Once IPAB completes its
recommendations, it must submit them to Congress and the
President. Id. § 1395kkk(c)(3). If instead the Secretary
completes the recommendations, the Secretary must submit
them to the President, who must in turn submit the proposal
to Congress within two days. Id. § 1395kkk(c)(4)–(5). The
scheme then provides, through congressional rulemaking
power, id. § 1395kkk(d)(5), detailed procedures by which
Congress must either consider and vote on the
recommendations or pass superseding legislation, id.
§ 1395kkk(d). In the absence of superseding legislation, id.
§ 1395kkk(e)(3)(A)(i), the Secretary must implement the
recommendations as submitted to Congress and the President,
id. § 1395kkk(e)(1).
In August of 2010, Coons and Novack, along with two
members of Congress,2 filed an omnibus facial challenge to
the Affordable Care Act in the United States District Court
for the District of Arizona. Coons is a citizen of Arizona, is
1 IPAB also has the authority, at its discretion, to make non-binding,
advisory proposals to Congress. 42 U.S.C. § 1395kkk(c).
2 The second amended complaint included Coons, Novack, and United
States House of Representatives members Jeff Flake and Trent Franks as
plaintiffs. But Representatives Flake and Franks did not appeal. Unless
otherwise specified, therefore, “Plaintiffs” refers to Coons and Novack
only.
COONS V. LEW 7
not exempt from the Affordable Care Act, does not have
private medical insurance, and does not want to purchase
private medical insurance or share his private medical history
with third parties. Novack is a citizen of Arizona and a
physician who manages a surgery practice that cares for
patients, 12.5% of whom receive care funded by Medicare
reimbursements. Plaintiffs challenge the individual mandate
and the establishment of IPAB on several theories, including
claims that those provisions: violate their constitutional
rights; exceed Article I legislative power under the
Commerce Clause, Necessary and Proper Clause, Spending
Clause, and taxation power; and violate Article I’s nondelegation
principle. Plaintiffs also seek a declaration that
the Arizona Act is not preempted by the Affordable Care Act.
Plaintiffs’ challenge was one of many similar cases filed
nationwide. One such case reached the United States
Supreme Court. The Court reviewed the individual mandate
and two other provisions expanding Medicaid coverage,
42 U.S.C. §§ 1396a(a)(10)(A)(i)(VIII), 1396c, to decide
whether the provisions exceeded Article I legislative power
under the Commerce Clause, the Spending Clause, or
Congress’ taxation power. While the Supreme Court’s
decision was pending, Defendants moved to dismiss all of
Plaintiffs’ claims, and the parties filed cross-motions for
summary judgment. The district court stayed this action
pending the Supreme Court’s disposition.
In National Federation of Independent Business, the
Supreme Court upheld the individual mandate as a proper
exercise of Congress’ taxation power, 132 S. Ct. at 2600, but
struck, as exceeding Spending Clause power, the portion of
the Medicaid expansion provision that withdrew all federal
Medicaid funding, including funding provided for programs
8 COONS V. LEW
predating the expansion, from states that refused to adopt the
expansion, id. at 2606–07. Following that decision, the
district court lifted the stay in Plaintiffs’ case and granted
Defendants’ motion to dismiss all claims that challenged the
individual mandate for exceeding Article I lawmaking power.
The district court also held that the establishment of IPAB did
not violate Article I’s non-delegation principle. After
receiving further briefing, the district court dismissed the
remaining claims3 and entered final judgment for Defendants.
Plaintiffs Coons and Novack timely appealed, and we have
jurisdiction under 28 U.S.C. § 1291.
DISCUSSION
Plaintiffs argue on appeal that the district court erred by
dismissing their challenge to the establishment of IPAB and
their challenge to the individual mandate as violative of
Coons’ substantive due process rights to medical autonomy
and informational privacy and by holding that the Affordable
Care Act preempts the Arizona Act. We disagree with their
arguments for the reasons that follow.
A. Article I Non-Delegation Challenge
Novack challenges the establishment of IPAB on the
ground that it violates Article I’s non-delegation principle.
But we first must address the threshold question whether
Novack satisfies the demands of Article III for ripeness. The
3 After the Supreme Court issued its decision in Nevada Commission on
Ethics v. Carrigan, 131 S. Ct. 2343 (2011), Plaintiffs voluntarily
dismissed count six of their complaint, which challenged features of the
Affordable Care Act as violative of Plaintiffs Flake and Franks’ First
Amendment rights.
COONS V. LEW 9
framers of Article III designed the federal courts to act
retrospectively and to avoid encroaching, through the
issuance of advisory opinions, on the prospective lawmaking
role of the legislature. United Pub. Workers of Am. (C.I.O.)
v. Mitchell, 330 U.S. 75, 89 (1947). “For adjudication of
constitutional issues, concrete legal issues, presented in actual
cases, not abstractions, are requisite.” Id. (internal quotation
marks omitted). This requirement has led to the doctrine of
ripeness, which contains “both a constitutional and a
prudential component.” Portman v. County of Santa Clara,
995 F.2d 898, 902 (9th Cir. 1993). The constitutional
component derives from Article III and, if it is not satisfied,
we lack jurisdiction to reach the merits of a dispute. Thomas
v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1139
(9th Cir. 2000) (en banc).
“The constitutional component of the ripeness inquiry is
often treated under the rubric of standing and, in many cases,
ripeness coincides squarely with standing’s injury in fact
prong.” Id. at 1138. When addressing the sufficiency of a
showing of injury-in-fact grounded in potential future harms,
Article III standing and ripeness issues often “boil down to
the same question.” Susan B. Anthony List v. Driehaus,
134 S. Ct. 2334, 2341 n.5 (2014) (internal quotation marks
omitted). In that context, “ripeness can be characterized as
standing on a timeline,” and the analysis for both standing
and ripeness is essentially the same. Thomas, 220 F.3d at
1138.
“In assuring that this jurisdictional prerequisite is
satisfied, we consider whether the plaintiffs face a realistic
danger of sustaining direct injury as a result of the statute’s
operation or enforcement.” Id. at 1139 (internal quotation
marks omitted). A plaintiff’s “injury must be concrete,
10 COONS V. LEW
particularized, and actual or imminent; fairly traceable to the
challenged action; and redressable by a favorable ruling.
Although imminence is concededly a somewhat elastic
concept, it cannot be stretched beyond its purpose, which is
to ensure that the alleged injury is not too speculative for
Article III purposes—that the injury is certainly impending.
Thus, we have repeatedly reiterated that threatened injury
must be certainly impending to constitute injury in fact, and
that allegations of possible future injury are not sufficient.”
Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013)
(citations, internal quotation marks, and brackets omitted).
Novack alleges that the establishment of IPAB will
certainly harm him in the future because he is an orthopedic
surgeon and manages a surgery practice in Arizona that
receives 12.5% of its patient care payments from Medicare
reimbursements. He argues that, because IPAB is
empowered to make recommendations on reimbursement
rates, 42 U.S.C. § 1395kkk(c)(2)(A)(iv), his challenge is ripe
because he will suffer financial harm as a result of IPAB’s
recommendations. Novack argues, in the alternative, that the
establishment of IPAB will set in motion market
displacements that will harm him financially, which he
contends is sufficient to satisfy Article III.
Although it is possible that some future IPAB action
might harm Novack, his allegations of future financial harm
are highly speculative and are not certainly impending.
Clapper, 133 S. Ct. at 1147. The Affordable Care Act does
provide that—if the Chief Actuary makes the requisite
finding—IPAB will have the discretion to recommend
reduced reimbursement rates to providers, 42 U.S.C.
§ 1395kkk(c)(2)(A)(iv), but IPAB is prohibited from
recommending a reduction until January 1, 2019, id.
COONS V. LEW 11
§ 1395kkk(c)(2)(A)(iii). Novack’s allegations that, because
IPAB is authorized to reduce and not increase reimbursement
rates, “the statute is imminently likely to decrease his
reimbursements for services that he renders to Medicare
patients, and otherwise affects his practice,” are exactly the
kinds of “allegations of possible future injury” that the
Supreme Court has held are insufficient to establish injury-infact.
Clapper, 133 S. Ct. at 1147. Speculative allegations
with respect to a potential future reduction in Medicare
reimbursement rates that are “wholly contingent upon the
occurrence of unforeseeable events” are insufficient to satisfy
the constitutional prong of our ripeness doctrine. Thomas,
220 F.3d at 1141. Accordingly, Novack’s challenge to IPAB
grounded on the contention that IPAB could exercise its
discretion to recommend reduction in reimbursement rates
some time after 2019, thereby causing him injury, is unripe.
Novack’s challenge to IPAB predicated on a market
displacement theory of injury-in-fact is equally unripe. In
particular, Novack cites allegations in the complaint that, “if
[IPAB’s speculated reductions in reimbursement rates] are
anticipated to become law,” health care providers and the
market might react negatively. (Emphasis added.) Those
allegations are insufficient to establish standing under the
market displacement theory of injury-in-fact. See Barnum
Timber Co. v. EPA, 633 F.3d 894, 900–01 (9th Cir. 2011).
Unlike the plaintiff in Barnum, who alleged that EPA
regulations on one property had already affected the market
and had already reduced the market value of plaintiff’s
property, id. at 901, Novack alleges only speculative future
market displacement that is contingent on a series of events,
including IPAB action, that has not yet occurred and may
never occur. Such speculative alleged injuries present a
dispute that is “not justiciable, because it is not ripe for court
12 COONS V. LEW
review.” Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726,
732 (1998). Moreover, Novack does not allege that he
actually has suffered financial harm from the alleged market
forces.
In sum, Novack’s allegations of future injury are too
speculative to satisfy the constitutional requirement of
ripeness.4 The district court, therefore, lacked jurisdiction to
adjudicate the merits of Novack’s challenge to the
establishment of IPAB. Accordingly, we vacate the district
court’s judgment on this claim and remand with instructions
to dismiss the claim for lack of jurisdiction.
B. Substantive Due Process and the Individual Mandate
Coons challenges the individual mandate on the ground
that it violates his right to substantive due process provided
by the Fifth and Ninth Amendments. He argues that the
mandate burdens directly his rights to medical autonomy and
informational privacy and, in the alternative, burdens his
informational privacy right indirectly by conditioning the
exercise of his right not to share his private medical
information on a requirement that he pay a penalty.
4 Novack argues, in the alternative, that he has suffered an injury-in-fact
simply by virtue of being subject to the jurisdiction of the IPAB. The
Supreme Court has held that, in certain circumstances, merely being
subject to the jurisdiction of a governmental entity established in violation
of the Constitution confers Article III standing. See Buckley v. Valeo,
424 U.S. 1, 117–18 (1976) (per curiam). But IPAB has no jurisdiction
over Novack or his practice of medicine. Novack’s allegations that his
financial interests will be affected indirectly by IPAB’s future regulatory
actions do not suffice to render Novack subject to IPAB’s jurisdiction.
COONS V. LEW 13
1. Medical Autonomy
The Supreme Court has recognized fundamental rights to
determine one’s own medical treatment, Cruzan ex rel.
Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 278
(1990), and to refuse unwanted medical treatment,
Washington v. Glucksberg, 521 U.S. 702, 724 (1997), and has
recognized a fundamental liberty interest in medical
autonomy, Planned Parenthood of Se. Pa. v. Casey, 505 U.S.
833, 851 (1992). Coons contends that the individual mandate
unduly burdens his right to medical autonomy by “forcing
him to apply limited financial resources to obtaining a health
care plan he does not desire or forcing him to save his income
and pay a penalty” and by “forcing him to create or risk
creating an intimate relationship concerning his health and
medical care with millions of non-physician intermediaries
employed by health insurers, rather than directly with the
physician of his choice.”
In order to determine whether the individual mandate
implicates Coons’ rights to medical autonomy, we must
examine what the individual mandate actually requires. The
Affordable Care Act provides that an individual must obtain
from any source, public or private, medical insurance that
meets statutory minimums of coverage, 26 U.S.C.
§ 5000A(a); or must pay a penalty, in the form of a tax, id.
§ 5000A(b). The individual mandate does not require that an
individual select a particular insurance plan, does not require
that the individual use an insurance plan once purchased, and
does not restrict an individual’s right to contract for care
directly with the physician of his or her choosing.
The fact that the individual mandate forces Coons to
expend funds on either medical insurance or a penalty
14 COONS V. LEW
implicates Plaintiff’s economic interests only—a substantive
due process right abandoned long ago by the Supreme Court.
See Ferguson v. Skrupa, 372 U.S. 726, 730 (1963) (“The
doctrine that prevailed in Lochner, Coppage, Adkins, Burns,
and like cases—that due process authorizes courts to hold
laws unconstitutional when they believe the legislature has
acted unwisely—has long since been discarded.”). As noted,
contrary to Coons’ contentions, the individual mandate does
not force him into an intimate relationship with an
intermediary insurer or preclude the doctor-patient
relationship of his choice. He remains free to obtain medical
insurance of his own choosing—or to obtain no insurance, but
at a financial cost—and to use or not use any such insurance
in selecting future doctor-patient relationships. To the extent
that Coons simply wishes to remain uninsured and free from
the mandatory payment, the Supreme Court no longer
recognizes such a right as fundamental.
We thus join the Sixth Circuit in upholding the individual
mandate against a substantive due process challenge
grounded in medical autonomy. U.S. Citizens Ass’n v.
Sebelius, 705 F.3d 588 (6th Cir. 2013).
2. Informational Privacy
The Supreme Court has recognized a fundamental privacy
right in non-disclosure of personal medical information.
Whalen v. Roe, 429 U.S. 589, 599 (1977). But, “the right to
informational privacy is not absolute; rather, it is a
conditional right which may be infringed upon a showing of
proper governmental interest.” Tucson Woman’s Clinic v.
Eden, 379 F.3d 531, 551 (9th Cir. 2004) (internal quotation
marks omitted). In order “to determine whether the
governmental interest in obtaining information outweighs the
COONS V. LEW 15
individual’s privacy interest,” we weigh the following factors:
“(1) the type of information requested, (2) the potential for
harm in any subsequent non-consensual disclosure, (3) the
adequacy of safeguards to prevent unauthorized disclosure,
(4) the degree of the need for access, and (5) whether there is
an express statutory mandate, articulated public policy, or
other recognizable public interest militating toward access.”
Id. at 551.
Coons contends that the individual mandate burdens
impermissibly his fundamental right to privacy in his medical
information by requiring him to provide medical information
to third-party insurance providers. He speculates that insurers
will “solicit sensitive information from customers” in order
to set risk premiums. He also asserts that such a disclosure
would make his medical information available for warrantless
government seizure. But Coons has not alleged that he has
applied for medical insurance or that any third party has
requested that he disclose his medical information as a
condition precedent to obtaining the minimum required
coverage.5 Those omissions frustrate our ability to weigh the
relevant factors delineated in Tucson Woman’s Clinic.
Because Coons’ challenge would require evaluating a
speculative intrusion, his challenge is prudentially unripe.6
See San Luis & Delta-Mendota Water Auth. v. Salazar,
5 Indeed, at oral argument, counsel represented that Coons has no
intention of obtaining insurance.
6 Because Coons’ unconstitutional conditions claim also rests on the
contention that the penalty constitutes an undue burden on his ability to
exercise his informational privacy rights, that challenge, too, is
prudentially unripe.
16 COONS V. LEW
638 F.3d 1163, 1173 (9th Cir. 2011). The Supreme Court has
held that prudential ripeness depends on two factors: “the
fitness of the issues for judicial decision and the hardship to
the parties of withholding court consideration.” Abbott Labs.
v. Gardner, 387 U.S. 136, 149 (1967). Here, as noted, Coons
has not alleged that any third party has sought private medical
information. Because we have no way to know who might
seek what kind of information, further factual development
would “‘significantly advance [our] ability to deal with the
legal issues presented.’” San Luis & Delta-Mendota Water
Auth., 638 F.3d at 1173 (quoting Nat’l Park Hospitality Ass’n
v. Dep’t of Interior, 538 U.S. 803, 812 (2003)). Moreover,
Coons does not contend that he is currently at risk of being
forced to disclose information protected by his substantive
due process right, so a holding of unripeness would work no
hardship against him. Judicial resolution of this issue should
await a concrete dispute. We hold, therefore, that the district
court did not err in declining to reach the merits of Coons’
informational privacy claim for lack of ripeness.7
C. Preemption
Finally, Plaintiffs appeal the district court’s holding that
the Affordable Care Act preempts the Arizona Act. We
evaluate under the Supremacy Clause, U.S. Const. art. VI, cl.
2, whether the Arizona Act, as a state law, is displaced by the
Federal Affordable Care Act.
7 Plaintiffs did not ask the district court for leave to amend, nor have
they argued on appeal that the district court erred in dismissing their claim
without affording them leave to amend their second amended complaint.
Therefore, the district court did not err in dismissing Plaintiffs’ claims
without leave to amend.
COONS V. LEW 17
In November of 2010, eight months after the Affordable
Care Act became law, Arizona voters amended their state
constitution through the Arizona Act to provide, in pertinent
part:
A. To preserve the freedom of
Arizonans to provide for their health
care:
1. A law or rule shall not compel,
directly or indirectly, any person,
employer or health care provider to
participate in any health care system.
2. A person or employer may pay
directly for lawful health care services
and shall not be required to pay
penalties or fines for paying directly
for lawful health care services. A
health care provider may accept direct
payment for lawful health care
services and shall not be required to
pay penalties or fines for accepting
direct payment from a person or
employer for lawful health care
services.
B. Subject to reasonable and
necessary rules that do not
substantially limit a person’s options,
the purchase or sale of health
insurance in private health care
systems shall not be prohibited by law
or rule.
18 COONS V. LEW
C. This section does not:
. . . .
4. Affect laws or rules in effect as
of January 1, 2009.
5. Affect the terms or conditions
of any health care system to the extent
that those terms and conditions do not
have the effect of punishing a person
or employer for paying directly for
lawful health care services or a health
care provider or hospital for accepting
direct payment from a person or
employer for lawful health care
services.
D. For the purposes of this
section:
. . . .
5. “Penalties or fines” means any
civil or criminal penalty or fine, tax,
salary or wage withholding or
surcharge or any named fee with
similar effect established by law or
rule by a government established,
created or controlled agency that is
used to punish or discourage the
COONS V. LEW 19
exercise of rights protected under this
section.
Ariz. Const. art. XXVII, § 2.
“The question whether a certain state action is pre-empted
by federal law is one of congressional intent. The purpose of
Congress is the ultimate touchstone.” Gade v. Nat’l Solid
Wastes Mgmt. Ass’n, 505 U.S. 88, 96 (1992) (internal
quotation marks and brackets omitted).
The Affordable Care Act presents a classic case of
preemption by implication because the Arizona Act “stands
as an obstacle to the accomplishment and execution of the full
purposes and objectives of Congress.” Id. at 98 (internal
quotation marks omitted). The Supreme Court has
recognized that the individual mandate is a proper exercise of
Congress’ Article I taxing power, Nat’l Fed’n of Indep. Bus.,
132 S. Ct. at 2600, and we affirm the constitutionality of the
Affordable Care Act again today. The Arizona Act provides
that its citizens may forego minimum health insurance
coverage and abstain from paying any penalties, Ariz. Const.
art. XXVII, § 2, which is exactly what the individual mandate
requires. The Arizona Act thereby stands as an obstacle to
Congress’ objective to expand minimum essential health
coverage nationwide through the individual mandate,
26 U.S.C. § 5000A, and is, therefore, preempted under the
Supremacy Clause. See Gade, 505 U.S. at 103 (“A state law
. . . is preempted if it interferes with the methods by which the
federal statute was designed to reach [its] goal.” (internal
quotation marks omitted)).
20 COONS V. LEW
CONCLUSION
We affirm the district court’s holding that the individual
mandate does not violate Plaintiff Coons’ substantive due
process right to medical autonomy, and we affirm the
dismissal, for lack of ripeness, of Coons’ challenge to the
individual mandate for violation of his substantive due
process right to informational privacy. We also affirm the
district court’s holding that the Affordable Care Act preempts
the Arizona Act. Finally, with respect to Plaintiff Novack’s
challenge to IPAB, we vacate the district court’s decision on
the merits of the claim and remand with instructions to
dismiss it for lack of jurisdiction.

Outcome: AFFIRMED in part, VACATED in part and
REMANDED with instructions. Costs on appeal shall be
awarded to Defendants-Appellees.

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