             United States Court of Appeals
                        For the First Circuit

No. 11-1880

    CARLOS P. GONZÁLEZ-MALDONADO; ANNETTE ACEVEDO-HERNÁNDEZ;
             CONJUGAL PARTNERSHIP GONZÁLEZ-ACEVEDO,

                        Plaintiffs, Appellants,

                                  v.

  MMM HEALTHCARE, INC., a/k/a Medicare y Mucho Más, a/k/a MMM;
              PMC MEDICARE CHOICE, INC., a/k/a PMC;
   MEDICAL MANAGEMENT SERVICES ORGANIZATION, INC., a/k/a MSO,

                        Defendants, Appellees.


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF PUERTO RICO

          [Hon. Carmen Consuelo Cerezo, U.S. District Judge]


                                 Before
                     Boudin, Hawkins* and Thompson,
                            Circuit Judges.


     Nicolás Nogueras-Cartagena and Nogueras Law & Associates on
brief for appellants.
     Harry Anduze-Montaño and José A. Morales-Boscio on brief for
appellees.



                           September 7, 2012




     *
         Of the Ninth Circuit, sitting by designation.
            BOUDIN, Circuit Judge.    Two physicians who contract with

HMOs refused to accept capitation payments in place of fee-for-

service payments, so the HMOs dropped the physicians' contracts.

The physicians brought constitutional and antitrust claims against

the companies, which the district court rejected on a motion to

dismiss.    The physicians now appeal.        We describe briefly the

underlying events alleged in the complaint.

            Appellant Carlos P. González-Maldonado and his wife,

appellant Annette Acevedo-Hernández, are licensed physicians with

private medical offices in southeast Puerto Rico in Guayama and

Patillas, respectively.      Acevedo is a primary care physician, and

Gonzalez is a specialist in family medicine.            Appellants also

perform house calls and provide services at several geriatric

centers    and   hospitals   in   southeast   Puerto   Rico.   Most   of

appellants' patients are elderly and participate in Medicare Part

A and Part B.

            Appellees MMM Healthcare, Inc. ("MMM") and PMC Medicare

Choice, Inc. ("PMC") are health management organizations, popularly

called HMOs, which in this instance provide health care to Puerto

Rican seniors enrolled in Medicare; and appellee Medical Management

Services Organization, Inc. ("MSO") provides management support to

health care providers including MMM and PMC.            The Center for

Medicare and Medicaid Services ("CMS"), a federal agency, contracts




                                    -2-
with MMM and PMC to provide health care to Medicare enrollees, for

which CMS gives MMM and PMC a monthly payment for each enrollee.

            In 2005 or earlier, the appellants entered into contracts

with MMM and PMC, under which appellants agreed to provide health

care services to MMM's and PMC's enrollees on a fee-for-services

basis, that is to say, payments based for each of the medical

services provided (e.g., annual physical; blood tests).          MMM and

PMC provide over eighty percent of the health care coverage to

Medicare beneficiaries in southeast Puerto Rico, and over seventy-

five percent of appellants' income derived from invoices to MMM and

PMC for services to their enrollees.

            MMM, PMC, and MSO are sister corporations, all three

being wholly owned subsidiaries of MMM Holdings, Inc., according to

an unsworn statement under penalty of perjury (pursuant to 28

U.S.C. § 1746 (2006)) issued by the secretary of the board of MMM

Holdings, Inc. The statement, which was appended to the appellees'

reply to the plaintiffs' opposition to motion to dismiss, is not

countered    by   any   proffer   or   specific   information   from   the

appellants.1

            The current dispute stems from the appellees' decision to

change the form of payment for appellants, and presumably other


     1
      MMM Holdings Inc. appears to be a subsidiary of Aveta Inc.,
http://www.aveta.com/news/aveta-subsidiary-mso-of-puerto-rico-ann
ounces-acquisition-of-castellana-physician-services/   (June   1,
2012). This supplementary information is for context and is not
part of our rationale.

                                    -3-
doctors, from fee-for-services to a regime known as capitation,

under which appellants would receive a fixed sum per patient per

year.   Around March 2008, the appellees gave the appellants a

proposed contract extension with MMM and PMC that would follow a

capitation payment system.     MSO also contacted Gonzalez and asked

him to join MSO's health service provider group for southeast

Puerto Rico, which entailed conditions that included the capitation

payment system.

           Gonzalez and Acevedo refused to sign the new contracts or

to join MSO; instead, they continued to bill the appellees on a

fee-for-services basis.    In April 2008, Gonzalez received a letter

from MSO dated April 1, 2008, saying that Gonzalez and Acevedo

could no longer treat MMM and PMC enrollees at southeast Puerto

Rico hospitals unless they joined MSO.          The appellees likewise

refused to honor invoices after April 1, 2008, on a fee-for-

services basis. MMM and PMC contacted their enrollees who Gonzalez

treated to inform them that he could no longer treat them at

hospitals under their plans.      On September 30, 2008, MMM and PMC

notified   appellants   they   would   cancel   their   service   provider

contracts effective December 31, 2009, because the appellants had

refused to agree to a capitation contract or to join MSO.

           On March 2, 2010, appellants filed a complaint in the

district court setting forth claims under section 1 of the Sherman

Act, 15 U.S.C. § 1 (2006), various provisions of and regulations


                                  -4-
under the Social Security Act, 42 U.S.C. § 301 et seq. (2006), and

various provisions of Puerto Rico commonwealth law.             In an amended

complaint, the appellants added claims for violation of procedural

due   process   and   equal    protection    under    the   Fifth   Amendment,

violation     of   First      Amendment     free     assembly   rights,   and

monopolization under section 2 of the Sherman Act, 15 U.S.C. § 2.

            The appellees filed a motion to dismiss, Fed. R. Civ. P.

12(b)(1) and 12(b)(6), and in a decision filed on January 25, 2011,

the district court dismissed all federal claims on the merits; the

Puerto Rico law claims were then dismissed for lack of subject

matter jurisdiction, there being no remaining federal claims to

support supplemental jurisdiction (nor any claim of diversity

jurisdiction).     Appellants now appeal, limiting their brief to the

equal protection and free assembly claims and the claim under

section 1 of the Sherman Act.

            We review the dismissal of the complaint de novo, Auto.

Indus. Pension Trust Fund v. Textron Inc., 682 F.3d 34, 37 (1st

Cir. 2012), assuming the factual allegations of the complaint to be

true, Grajales v. Puerto Rico Ports Authority, 682 F.3d 40, 44 (1st

Cir. 2012). The complaint "must contain sufficient factual matter,

accepted as true, to 'state a claim to relief that is plausible on

its face.'"     Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).




                                     -5-
              Constitutional    Claims.          The    appellants        make   two

constitutional       claims:   that    the     appellees     have    discriminated

against non-MSO members in violation of the equal protection

component of the Fifth Amendment's Due Process Clause,2 and that

barring them from practicing at certain hospitals has abridged

their First Amendment right of free assembly.                It is a condition of

the constitutional claims that the appellees' actions qualify as

governmental action.3

              Most constitutional protections of rights and liberties

are   aimed     at   governmental     action    and    not   private      conduct.

Chemerinsky, Constitutional Law 519 (4th ed. 2011); e.g., U.S.

Const. Amend. I ("Congress shall make no law . . . abridging . . .

the right of the people peaceably to assemble") (emphasis added);

id. Amend. XIV, § 1 ("nor shall any State . . . deny to any person

within    its    jurisdiction   the     equal     protection        of   the   laws")

(emphasis added).        The requirement of governmental action has a




      2
      The Equal Protection Clause of the Fourteenth Amendment
applies only to state governments, but the Due Process Clause of
the Fifth Amendment is treated as containing an equal protection
component that binds the federal government in the same way that
the Equal Protection Clause binds the states.       See  Adarand
Constructors, Inc. v. Pena, 515 U.S. 200, 217 (1995).
      3
      The phrase "state action" is ordinarily employed; but here it
is the association of the appellees with federal government action
that is in issue. The "governmental action" requirement applies to
Fifth Amendment equal protection claims just as it does to
Fourteenth Amendment claims. See S.F. Arts & Athletics, Inc. v.
U.S. Olympic Comm., 483 U.S. 522, 542 & n.22 (1987).

                                       -6-
long history in the case law.        See Civil Rights Cases, 109 U.S. 3

(1883).

           Under limited circumstances, conduct by nominally private

actors    can    be    characterized       as   governmental      action      for

constitutional purposes, e.g., Marsh v. Alabama, 326 U.S. 501

(1946) (company town), although the conditions delineated in a

number of Supreme Court decisions over many years are not easily

reduced to a single formula. Principal categories in which private

actors may      be   deemed   "governmental"    and   implicate    a   host    of

constitutional protections include the following:

           -where a private entity exercises "powers
           traditionally exclusively reserved" to the
           government, Jackson v. Metro. Edison Co., 419
           U.S. 345, 352 (1974);

           -where there is a "sufficiently close nexus"
           between the challenged activity and government
           regulation or support such that "it can be
           said that the [government] is responsible for
           the specific conduct of which the plaintiff
           complains," Blum v. Yaretsky, 457 U.S. 991,
           1004 (1982) (quoting Jackson, 419 U.S. at
           351); and

           -where   government   actors    possess   such
           influence over a nominally private entity that
           there exists "public entwinement in the
           management and control" of the entity,
           Brentwood Academy v. Tenn. Secondary Sch.
           Athletic Ass'n, 531 U.S. 288, 297 (2001).

           None of these exceptions applies in this case, nor does

any other cited to us or of which we are aware.           Governments often

do provide health care, as in hospitals operated by the Department

of Veterans Affairs; but the public function exception applies to

                                     -7-
"traditionally exclusively" public functions. Jackson, 419 U.S. at

352 (emphasis added). Thus, running a utility company, id. at 353,

or running a school, Rendell-Baker v. Kohn, 457 U.S. 830, 842

(1982); Logiodice v. Trustees of Me. Cent. Inst., 296 F.3d 22, 26

(1st Cir. 2002), cert. denied, 537 U.S. 1107 (2003), do not

qualify.   Neither does operating an HMO.

           As    for   "nexus"   and     "support,"      appellants'    amended

complaint contains vague allegations that the appellees contract

for and "manage federal funds," but neither government regulation

standing alone, Jackson, 419 U.S. at 350, nor government funding,

Rendell-Baker, 457 U.S. at 840, converts a private entity into an

arm of the state--absent proof that the government "has exercised

coercive power or has provided . . . significant encouragement" for

the challenged action.        Blum, 457 U.S. at 1004.

           It appears that the federal government reimburses MMM and

PMC on a capitation basis--thought to encourage preventive care and

other efficiencies--but MMM and PMC were free to compensate the

doctors with whom they contracted on any basis they liked. And, if

the federal government did require the companies to use capitation

for their own payments to doctors, the proper suit would be

normally against the government itself and rarely against those who

merely obeyed the government's order.

           Finally,     the    Supreme       Court's   latest   gloss   on   the

entwinement     doctrine   states   that       "public   entwinement    in   the


                                       -8-
management and control" of a private entity can create a basis for

state action, Brentwood, 531 U.S. at 297 (emphasis added), but the

requisite entwinement exists only when government actors manage or

exercise control over a nominally private entity.          Compare id. at

298 (eighty-four percent of voting members of association were

representatives of public schools) and Evans v. Newton, 382 U.S.

296, 301 (1966) (city maintained a park nominally owned by private

trustees) with Logiodice, 296 F.3d at 28 (no entwinement where

private school was run by private trustees rather than public

officials). In this case, there are no allegations that government

officials played any role in the management or control of any of

the appellee corporations.

             Because we hold that the appellees are not governmental

actors, the appellants' constitutional claims necessarily fail, but

they would be unpromising even were appellees government actors.

While appellants claim that they were subject to discrimination for

refusing to join MSO and accept capitation payments, governmental

economic regulation, including a preference for capitation, would

be reviewed under the highly deferential rational basis standard,

R.I. Hospitality Ass'n v. City of Providence ex rel. Lombardi, 667

F.3d   17,   40   (1st   Cir.   2011),    and   would   hardly   be   deemed

"irrational."

             Appellants also claim that their free assembly rights

were jeopardized by their exclusion from practicing at certain


                                    -9-
hospitals.      But a doctor's inability to practice at a hospital as

a result of his unwillingness to accept the compensation offered by

the HMO that contracts with the hospital or patients has nothing to

do with the right to assemble.

            Antitrust     Claim.     The    appellants   contend   that    the

appellees MMM, PMC, and MSO violated Sherman Act section 1, 15

U.S.C. § 1, which prohibits any "contract, combination . . . or

conspiracy, in restraint of trade," by engaging in a group boycott

against the appellants.         A violation of section 1 may well occur

when a group of independent competing firms engage in a concerted

refusal    to     deal   with   a   particular    supplier,    customer,   or

competitor.     E.g., Klor's, Inc. v. Broadway-Hale Stores, Inc., 359

U.S. 207, 212 (1959); Fashion Originators' Guild of Am. v. Fed.

Trade Comm'n, 312 U.S. 457, 465 (1941).

            But it is patent in this case, as we explain hereafter,

that MMM, PMC, and MSO are not independent firms; rather, they are

wholly    owned    subsidiaries     of   the   same   parent   company.    In

Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752 (1984),

the Supreme Court held that a corporation and its wholly owned

subsidiary "have a complete unity of interest," id. at 767-68, and

as a single economic unit cannot violate section 1's conspiracy

prohibition, id. at 771. The rationale and underlying policy apply




                                     -10-
with equal force to sister corporations that are wholly owned

subsidiaries of the same parent.4

            American Needle, Inc. v. National Football League, 130 S.

Ct. 2201 (2010), cited by appellants, provides no support for their

position.        American   Needle   followed   conventional       doctrine   by

refusing    to    expand    Copperweld   to   treat   a   sports    league--an

agglomeration of independently owned and managed teams--as immune

from section 1 in the marketing of intellectual property.                     The

language to which appellants cite observed that the teams are

"independent centers of decisionmaking," id. at 2209 (quoting

Copperweld, 467 U.S. at 769), as if this also applied as well to

the sister companies in this case.

            But a sports league is a "hybrid arrangement" in which

franchises have "distinct entrepreneurial interests" in some areas,

yet promote common interests of the league in others.                Fraser v.

Major League Soccer, L.L.C., 284 F.3d 47, 57-58 (1st Cir.), cert.

denied, 537 U.S. 885 (2002). In American Needle, the Supreme Court

engaged in a functional analysis of whether NFL franchises compete

or share economic interests, finding that the franchises compete

when selling merchandise embodying their intellectual property and


     4
      Odishelidze v. Aetna Life & Cas. Co., 853 F.2d 21, 23 (1st
Cir. 1988); Siegel Transfer, Inc. v. Carrier Exp., Inc., 54 F.3d
1125, 1133 (3d Cir. 1995); Advanced Health-Care Servs., Inc. v.
Radford Cmty. Hosp., 910 F.2d 139, 146 (4th Cir. 1990); Hood v.
Tenneco Tex. Life Ins. Co., 739 F.2d 1012, 1015 (5th Cir. 1984);
Directory Sales Mgmt. Corp. v. Ohio Bell Tel. Co., 833 F.2d 606,
611 (6th Cir. 1987).

                                     -11-
so can violate section 1 by collaborating in the marketing of that

intellectual property.      American Needle, 130 S. Ct. at 2206-07,

2212-13.

           By contrast to the sports teams in American Needle, the

appellee subsidiaries in this case are wholly owned by the parent

and--whether    or   not    certain   decisions   are   delegated    to

subsidiaries--have a total unity of economic interests.             The

appellants' argument is that used in several antique precedents

once used as an excuse for applying section 1 to single economic

units, Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, Inc., 340

U.S. 211, 215 (1951); United States v. Yellow Cab Co., 332 U.S.

218, 227-28 (1947), precedents that were effectively overruled by

Copperweld, 467 U.S. at 773-74, 777.

           Of course, a company or any other single economic unit

can violate section 2 of the Sherman Act, which prohibits attempts

to monopolize and monopolization; but this assumes the existence of

an economic market in which a monopoly exists or is potentially

within reach.   See United States v. Grinnell Corp., 384 U.S. 563,

570 (1966); United States v. E.I. du Pont de Nemours & Co., 351

U.S. 377, 380 (1956).      No economic market is sufficiently alleged

in the complaint here, cf. E. Food Servs., Inc. v. Pontifical

Catholic Univ. Servs. Ass'n, Inc., 357 F.3d 1, 9 (1st Cir. 2004)

(dismissing section 1 claim for failure to allege an economic

market); and anyway the appellants have abandoned their section 2


                                  -12-
claim by declining to brief it on this appeal.        Rodriguez v.

Municipality of San Juan, 659 F.3d 168, 175 (1st Cir. 2011).

           Although the legal analysis just set forth is beyond

serious dispute, the factual predicate--that the appellees are

wholly owned subsidiaries of a single corporate enterprise--is not

asserted in the complaint; rather, as noted, the appellees asserted

the fact that they were sister companies in an affidavit made under

penalty of perjury appended to their reply to the appellants'

opposition to their motion to dismiss.

           Where the district court considers matters outside the

pleadings on a Rule 12(b)(6) motion to dismiss, the district court

must "treat[] [the motion] as one for summary judgment under Rule

56" and give all parties "a reasonable opportunity to present all

the material that is pertinent to the motion."     Fed. R. Civ. P.

12(d).   Appellants could have complained to the district court, or

even to us, that they had, or reasonably hoped to obtain, proof

that the appellees were not wholly owned subsidiaries but despite

Rule 12(d) were denied such an opportunity.

           They did nothing of the kind in the district court and,

in this court, their brief instead questions the affidavit's

credibility on no serious ground and offers a vague statement that

the district court "contravene[d] the procedural rule that provides

that the facts averred at the Complaint should be deemed as true,"

although their complaint nowhere states that the appellees are


                                -13-
independently owned.   The brief does not even directly argue that

the district court erred in considering the affidavit.

          To the extent that the appellants had any argument, it is

waived by "perfunctory" treatment, United States v. Zannino, 895

F.2d 1, 17 (1st Cir.), cert. denied, 494 U.S. 1082 (1990); and, in

any event, any formal error by the district court in taking

appellants' silence in the face of the affidavit as acquiescence

(qui tacet consentire videtur) was rendered harmless by their

failure to claim plausibly that appellants have or reasonably hope

to obtain proof to contradict the affidavit.

          Affirmed.




                               -14-
