                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 11-1973
                        ___________________________

 Peter Kinder, Missouri Lieutenant Governor; Dale Morris; Samantha Hill; Julie
                               Keathley; M. K.,

                      lllllllllllllllllllll Plaintiffs - Appellants,

                                           v.

Timothy F. Geithner, Secretary of the United States Department of Treasury; Hilda
  Solis, Secretary of the United States Department of Labor; Eric H. Holder, Jr.,
United States Attorney General; Kathleen Sebelius, Secretary of the United States
                    Department of Health and Human Services,

                     lllllllllllllllllllll Defendants - Appellees.

                             ------------------------------

            State of Alabama; State of Alaska; State of Arizona, et al.,

                   lllllllllllllllllllllAmici on Behalf of Appellant,

   American Association of People with Disabilities; Families USA; Friends of
             Cancer Research; March of Dimes Foundation, et al.,

                   lllllllllllllllllllllAmici on Behalf of Appellee.
                                       ____________

                    Appeal from United States District Court
              for the Eastern District of Missouri - Cape Girardeau
                                 ____________

                           Submitted: October 20, 2011
                             Filed: October 4, 2012
                                 ____________
Before BYE, SMITH, and COLLOTON, Circuit Judges.
                           ____________

COLLOTON, Circuit Judge.

       A group of seven plaintiffs, including Samantha Hill and Missouri Lieutenant
Governor Peter Kinder (acting in his personal capacity), brought this action to
challenge various provisions of the Patient Protection and Affordable Care Act (“the
Act”). Pub. L. No. 111-148, 124 Stat. 119 (2010). The district court1 dismissed the
suit for lack of standing. Hill and Kinder appeal, and we affirm.

                                          I.

        Hill and Kinder filed a lawsuit challenging, among other things, the Act’s
individual mandate. On appeal, they pursue two claims that were raised in their
amended complaint: (1) that Congress exceeded its authority under the Commerce
Clause and the taxing power when it promulgated the mandate, and (2) that the
mandate violates the Due Process Clause of the Fourteenth Amendment by abrogating
their rights under the Missouri Health Care Freedom Act, which provides that “[n]o
law or rule shall compel, directly or indirectly, any person, employer, or health care
provider to participate in any health care system.” Mo. Rev. Stat. § 1.330(1).

      The mandate, of course, was the subject of the Supreme Court’s recent decision
in National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012).
The provision at issue requires individuals to maintain “minimum essential” health
care coverage. 26 U.S.C. § 5000A. Beginning in 2014, individuals who are not
exempt and who do not comply must pay the government a “shared responsibility
payment,” id. § 5000A(b)(1), which the Supreme Court identified as a “tax” for
purposes of Congress’s taxing power. Sebelius, 132 S. Ct. at 2594-2600.


      1
        The Honorable Rodney W. Sippel, United States District Judge for the Eastern
District of Missouri.

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       The government moved to dismiss the suit, arguing that the district court lacked
subject matter jurisdiction and that the complaint failed to state a claim upon which
relief could be granted. Hill and Kinder opposed the motion and filed supplemental
affidavits with their response. The district court, citing Osborn v. United States, 918
F.2d 724, 729 n.6 (8th Cir. 1990), reasoned that because the government’s motion was
a “facial attack” on subject matter jurisdiction, the court should consider only the
pleadings. It therefore declined to consider the affidavits. But cf. Warth v. Seldin, 422
U.S. 490, 501 (1975).

       The district court ruled that neither Hill nor Kinder had standing to sue and
dismissed the complaint for lack of jurisdiction. Hill’s complaint, as recounted by the
court, was that she desires to obtain only high-deductible “major medical” or
“catastrophic” health insurance coverage, but that the Act “allows citizens to maintain
catastrophic plans only if an individual is under 30 years of age and certifies that his
or her premium payment is more than eight percent of his or her household income.”
Am. Compl. ¶ 140. The district court concluded that Hill’s complaint misunderstands
the statute. Whereas Hill asserted that she could purchase a catastrophic plan only if
she is under the age of thirty and meets the test of financial hardship, the statute
connects the two criteria with “or” and provides that she need only satisfy one. 42
U.S.C. § 18022(e)(2). Because Hill will be under the age of thirty when the Act takes
effect, the district court determined that she would be able to buy a qualifying
catastrophic plan, and that she therefore failed to allege an injury. The district court
determined that Kinder lacked standing, because he sued in his individual capacity,
and he could not allege injury based on his performance of duties as an officer of the
State of Missouri.

      Hill and Kinder filed a notice of appeal to this court before Sebelius was
decided. They disputed the district court’s ruling on standing and argued on the
merits that the individual mandate violates the Federal Constitution. Shortly after this
case was argued and submitted, the Supreme Court granted certiorari in Sebelius. We
held this appeal pending a decision, and the Supreme Court upheld the individual


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mandate as a constitutional exercise of Congress’s taxing power. Sebelius, 132 S. Ct.
at 2594-2600.

       After the Court’s decision, we asked the parties to supplement their briefs with
a statement of position on this appeal in light of Sebelius. Hill and Kinder continue
to pursue their appeal, although it is unclear what relief they now seek. The amended
complaint asked the court to declare provisions of the Act unconstitutional and to
enjoin the defendants from enforcing those sections against the plaintiffs. The
supplemental brief filed by Hill and Kinder in light of Sebelius does not specifically
urge those remedies or any other that we can readily discern. The government
responds that if the plaintiffs have standing, then the judgment should be affirmed
based on Sebelius.

                                           II.

       The district court dismissed the suit on the ground that the plaintiffs lack
standing. Although the Supreme Court recently addressed the constitutionality of the
Act in Sebelius, we are obliged first to consider our jurisdiction. For the reasons that
follow, we conclude that the district court correctly ruled that Hill and Kinder lacked
standing to sue, and we therefore affirm on that basis.

       Article III requires that a plaintiff must have suffered an injury-in-fact as an
essential element of standing. Injury-in-fact means an actual or imminent invasion of
a concrete and particularized legally protected interest. Lujan v. Defenders of Wildlife,
504 U.S. 555, 560 (1992). The requisite injury “cannot be inferred argumentatively
from averments in the pleadings, but rather must affirmatively appear in the record.”
FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990) (internal quotations and
citations omitted).

      Hill and Kinder do not dispute the district court’s decision to resolve the
standing question based solely on the allegations in their amended complaint. In other
words, they “do not premise their appeal on the trial court restricting its review to the

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amended complaint.” Appellants’ Br. 22 n.5. The appellants urge this court,
however, to incorporate their supplemental affidavits for the first time on appeal. We
decline to consider them, because Hill and Kinder must show that they “met the
challenge to their standing at the time of judgment.” Summers v. Earth Island Inst.,
555 U.S. 488, 495 n.* (2009). They do not challenge the district court’s decision to
resolve standing based on the amended complaint, so we review the question based
on the same record.

       We agree with the district court that the amended complaint does not allege that
Hill suffered an Article III injury-in-fact. As we read the amended complaint, Hill
allegedly was injured because she “desires to obtain only high-deductible ‘major
medical’ or ‘catastrophic’ health insurance coverage,” Am. Compl. ¶ 138, and the Act
denies her the option of purchasing this coverage. Id. ¶¶ 140, 144. But Hill is eligible
to purchase a “catastrophic plan” under § 1302(e) of the Act, because she will be
under the age of thirty when the Act goes into effect. See 42 U.S.C. § 18022(e)(2).
The only injury that Hill alleges in her complaint—that the Act requires her to make
a shared responsibility payment if she does not purchase catastrophic coverage that
she does not want—will thus not occur.

       Hill contends that the district court’s analysis is based on a misreading of the
amended complaint, and that she alleged a different injury. Hill asserts that her claim
of injury is that she does not want to purchase any insurance plan, including a
catastrophic plan, that would satisfy the requirements of the Act. On this reading, the
allegation in paragraph 138 of the amended complaint that Hill “desires to obtain only
high-deductible ‘major medical’ or ‘catastrophic’ health insurance coverage” referred
to a type of major-medical, catastrophic coverage that was available before the
passage of the Act, not to the catastrophic plans defined by the Act.

      Hill’s present argument advances an unnatural reading of the amended
complaint, and the district court did not err by failing to discern it. Hill alleged in
paragraph 138 that she “desires to obtain only high-deductible ‘major medical’ or
‘catastrophic’ health insurance coverage.” Am. Compl. ¶ 138 (emphasis added). She

                                          -5-
placed the word “catastrophic” in quotation marks, thus naturally leading the court to
conclude that it was a term drawn from the Act. See 42 U.S.C. § 18022(e) (entitled
“Catastrophic plan”). Then, in paragraph 140, she alleged that the Act “allows
citizens to maintain catastrophic plans only if an individual is under 30 years of age
and certifies that his or her premium payment is more than eight percent of his or her
household income.” Am. Compl. ¶ 140 (emphases added). “All other individuals,”
she alleged, “will be required to have at least the minimum essential coverage
determined by the Secretary of Health and Human Services.” Id. Paragraph 144 then
alleges that Hill is placed in the category of “all other individuals,” because she is
“denied the option of purchasing [a] high-deductible, major medical, health insurance
policy”—that is, a catastrophic plan. Id. ¶ 144. The court naturally understood Hill
to mean that she wanted to purchase only a catastrophic plan under the Act, but that
the Act forbids her to do so. Given Hill’s faulty premise that she may purchase a
catastrophic plan only if she meets both the requirements of age and financial need,
id. ¶ 140, it made sense for Hill to allege that the Act would deny her the option to
purchase “catastrophic” health insurance coverage within the meaning of § 1302(e).

       In response to the district court’s ruling, Hill asserts that “‘catastrophic’ health
insurance coverage” in paragraph 138 means one thing (a pre-Act “catastrophic”
plan), while “catastrophic plans” in paragraph 140 means something else (the
“catastrophic plans” defined by § 1302(e) of the Act). No discernible reason for this
shift in meaning is apparent on the face of the complaint, and the district court
logically read the two paragraphs as referring to the same catastrophic coverage.

       Hill also relies on paragraph 141 of the amended complaint, which alleges that
the Act “requires [her] to purchase a health-insurance policy that includes, inter alia,
coverage in the following categories: ambulatory patient services, maternity and
newborn care, mental health and substance use disorder services, prescription drugs,
laboratory services, and pediatric services including oral and vision care.” Id. ¶ 141.
Hill argues that this paragraph alleges injury because it claims that she must purchase
a policy that includes unwanted “essential health benefits,” even if she is permitted to
purchase a “catastrophic plan.” But paragraph 141 merely recites that the Act requires

                                           -6-
policies to provide certain coverages; it does not connect this information to any
alleged injury.

       When the complaint ultimately alleged injury in paragraph 144, it asserted that
“[a]s the provisions referenced above provide,” Hill is “denied the option of
purchasing [a] high-deductible, major medical, health insurance policy,” and is instead
required to purchase a more expensive plan that she does not want. Id. ¶ 144. This
allegation harks back to the dichotomy established in paragraph 140 between citizens
whom the Act allows “to maintain catastrophic plans” under § 1302(e) (one of the
“provisions referenced above”) and “[a]ll other individuals.” Id. ¶ 140. If Hill were
claiming that she did not want to purchase any insurance plan that would satisfy the
individual mandate in the Act, including a “catastrophic plan” that would satisfy
§ 1302(e), then it would have been a simple matter to make that allegation. Cf.
Fednav, Ltd. v. Chester, 547 F.3d 607, 617 (6th Cir. 2008) (“[W]e simply will not
strain to construe the complaint to say by negative implication what it very simply
could have said directly.”). For these reasons, we conclude that the district court did
not err in determining that Hill failed to allege an injury.2

       Kinder also failed to allege an injury-in-fact. Nowhere in the amended
complaint does Kinder assert that he will be uninsured or lack “minimum essential
coverage” when this portion of the Act takes effect in January 2014. He therefore did
not allege that the Act’s individual mandate or minimum coverage provisions would
injure him.



       2
        Hill also urges consideration of paragraph 23 of the complaint, which alleged
that she had “no need or desire to purchase or pay for insurance coverage covering
infant and child care . . . and over 200 other preventative services.” Am. Compl. ¶ 23.
This paragraph, however, was not incorporated into the counts of the complaint that
allege the constitutional claims, and Hill did not even cite the allegation in the district
court when opposing the defendants’ motion to dismiss.

                                           -7-
                                  *       *       *

       Because neither Hill nor Kinder pleaded sufficient facts to establish an injury-
in-fact, both plaintiffs lack standing to sue, and there is no Article III case or
controversy. The judgment of the district court is affirmed.
                        ______________________________




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