Unpublished Disposition, 935 F.2d 274 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 935 F.2d 274 (9th Cir. 1991)

Duane L. ISAACS, Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee.

No. 90-16649.

United States Court of Appeals, Ninth Circuit.

Submitted May 29, 1991.* Decided June 4, 1991.

Before HUG, KOZINSKI and LEAVY, Circuit Judges.


MEMORANDUM** 

Dr. Duane L. Isaacs, appearing pro se, appeals the district court's order denying Isaacs' summary judgment motion and granting summary judgment in favor of the United States in Isaacs' action challenging the constitutionality of several provisions of the Medicare statute, 42 U.S.C. § 1395j et seq. Isaacs contends that the district court erred by finding that Isaacs lacked standing to challenge the Medicare statute solely on behalf of his Medicare patients. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

We review the district court's grant of summary judgment de novo. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 110 S. Ct. 3217 (1990). We must determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Danning v. Miller, 922 F.2d 544, 546 (9th Cir. 1991).

"Standing is a threshold question in every case before a federal court." McMichael v. County of Napa, 709 F.2d 1268, 1269 (9th Cir. 1983). A determination of standing involves an analysis of "constitutional requirements and prudential considerations." Valley Forge College v. Americans United, 454 U.S. 464, 471 (1982). " [A]t an irreducible minimum, Art. III requires the party who invokes the court's authority to 'show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,' " and that the injury is redressable by the courts. Id. at 472 (quoting Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99 (1979)). Prudential considerations require that "the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties." Warth v. Seldin, 422 U.S. 490, 499 (1975).

There are two exceptions to the rule that a plaintiff cannot assert the rights of absent third parties. See Singleton v. Wulff, 428 U.S. 106, 114 (1976). First, a plaintiff can assert a third party's rights if the enjoyment of those rights is "inextricably bound up with the activity the litigant wishes to pursue," and if the plaintiff is as effective a proponent of the rights as the third party. Id. at 114-15. Second, a plaintiff may assert a third party's rights if there exists a "genuine obstacle" to such assertion by the third party, such as where assertion by the third party would result in nullification of the rights. Id. at 115-16.

Isaacs contends that several Medicare provisions violate the "fundamental right" of Medicare patients to "consensual medical privacy" in the doctor-patient relationship. Although Isaacs has alleged an injury in fact under Article III, he lacks standing to assert violations of the constitutional rights of his Medicare patients.1 

The constitutional case or controversy requirement is satisfied here because it is clear that under the challenged Medicare statutes Isaacs suffers concrete injury when he does not receive payment for services to Medicare beneficiaries when such services are deemed unreasonable and unnecessary or consist of "routine foot care." See Singleton, 428 U.S. at 113. Furthermore, if the challenged Medicare provisions are found to be unconstitutional, Isaacs will benefit by receiving payment for services otherwise uncompensable under the statutes. See id.

Isaacs' constitutional challenge to the Medicare provisions is brought solely on behalf of his Medicare patients. There is no indication, however, that Medicare patients' enjoyment of their alleged constitutional right to "consensual medical privacy" is "inextricably bound up" with Isaacs' practice of medicine. Moreover, Isaacs cannot be as effective a proponent of these rights as the Medicare patients themselves because the challenged Medicare provisions appear to protect rather than harm the interests of Medicare patients. The provisions, among other things, require doctors to inform patients of services which may not be covered by Medicare, and provide for independent review of the necessity and quality of medical services. See, e.g. 42 U.S.C. §§ 1320c-3(a) (1) (B) and 1395u(l) (1) (C); Finally, there is no "genuine obstacle" to Medicare patients, themselves, asserting a right to medical privacy in the doctor-patient relationship. Cf. NAACP v. Alabama, 357 U.S. 449, 459 (1958) (plaintiff permitted to assert absent third party's right to be protected from compelled disclosure where assertion by third party would nullify right).

Thus, because there are no genuine issues of material fact and because Isaacs lacks standing to assert the constitutional rights of his Medicare patients, the district court did not err by granting summary judgment in favor of the United States. See Warth, 422 U.S. at 508-10; cf. Singleton, 428 U.S. at 117-18 (physicians permitted to assert women patients' right to abortion where privacy considerations and imminent mootness of claim would prevent women themselves from asserting right).

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

In his complaint, Isaacs contends that certain provisions of the Medicare statute violate his Medicare patients' right to "consensual medical privacy." To support his Fed. R. Civ. P. 59(e) motion for alteration of the judgment, Isaacs filed a reply brief contending that the Medicare provisions violate the first amendment by infringing on the right of Medicare patients and doctors to associate for the advancement of common beliefs, and the right of privacy in that association. The district court construed the motion as one for reconsideration and denied it on the ground that Isaacs was improperly raising his first amendment theory for the first time in the post-judgment motion. Isaacs raises his first amendment theory again in his brief on appeal. Because this theory was not properly raised before the district court, we do not consider it on appeal. See Villar v. Crowley Maritime Corp., 782 F.2d 1478, 1483 (9th Cir. 1986)