            Case: 14-10296   Date Filed: 12/02/2014   Page: 1 of 18


                                                                [PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                               No. 14-10296
                         ________________________

                    D.C. Docket No. 9:13-cv-80990-WPD

KAWA ORTHODONTICS, LLP,

                                                       Plaintiff – Appellant,

                                   versus

SECRETARY, U.S. DEPARTMENT OF THE TREASURY,
U.S. DEPARTMENT OF TREASURY,
COMMISSIONER OF THE INTERNAL REVENUE SERVICE,
INTERNAL REVENUE SERVICE,

                                                       Defendants – Appellees.
                         ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       _________________________

                             (December 2, 2014)


Before MARTIN, JULIE CARNES and BLACK, Circuit Judges.

BLACK, Circuit Judge:
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                                 I. BACKGROUND

        The “employer mandate” provisions of the Patient Protection and Affordable

Care Act (ACA) require certain employers to offer their employees health

insurance that meets statutorily-specified minimum requirements. The ACA

imposes reporting obligations on those employers and provides for the assessment

of a tax penalty if an employer fails to provide adequate insurance.

        Between early 2013 and the end of June 2013, Kawa Orthodontics, LLP

(Kawa) expended time and money to determine how to comply with the employer

mandate. After Kawa incurred these expenses, on July 2, 2013, the U.S.

Department of the Treasury (Treasury) announced it would not enforce the

mandate for a transition period of one year—until the end of 2014. Treasury later

extended the transition relief for certain employers, including Kawa, for a second

year.

        In October 2013, Kawa filed a complaint in federal district court challenging

Treasury’s decision to postpone enforcement of the employer mandate. Kawa did

not seek the return of the money that Kawa paid to research its upcoming

obligations under the ACA. Nor did it seek the return of any money attributable to

the monetary value of the time that Kawa spent in this endeavor. Rather, Kawa

sought a declaratory judgment and an injunction setting aside Treasury’s transition




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relief. The district court dismissed the complaint, finding that Kawa lacked Article

III standing. Kawa appeals.

                          II. STANDARD OF REVIEW

      Whether a party has Article III standing is a jurisdictional issue, and

therefore must be addressed before we may reach the merits. Vt. Agency of

Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 771, 120 S. Ct. 1858,

1861 (2000); see also Bochese v. Town of Ponce Inlet, 405 F.3d 964, 974 (11th

Cir. 2005) (“Standing is a threshold jurisdictional question which must be

addressed prior to and independent of the merits of a party’s claims.” (brackets and

quotation omitted)). We review de novo whether plaintiffs have Article III

standing. Ga. Latino Alliance for Human Rights v. Governor of Georgia, 691 F.3d

1250, 1257 (11th Cir. 2012). In assessing standing on a motion to dismiss, we

presume the plaintiff’s “general allegations embrace those specific facts that are

necessary to support the claim.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561,

112 S. Ct. 2130, 2137 (1992). Moreover, we “must accept as true all material

allegations of the complaint, and must construe the complaint in favor of the

complaining party.” Warth v. Seldin, 422 U.S. 490, 501, 95 S. Ct. 2197, 2206

(1975). We may affirm for any reason supported by the record, even if not relied

upon by the district court. United States v. Al-Arian, 514 F.3d 1184, 1189 (11th

Cir. 2008).



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                                    III. DISCUSSION

       To establish Article III standing, a plaintiff must show “(1) an injury in fact

that is concrete, particularized, and either actual or imminent; (2) a causal

connection between the injury and the conduct complained of; and (3) a likelihood

that a favorable judicial decision will redress the injury.” McCullum v. Orlando

Reg’l Healthcare Sys., Inc., 768 F.3d 1135, 1145 (11th Cir. 2014). Applying this

test, we conclude Kawa lacks Article III standing to challenge Treasury’s delay of

the mandate.1 We address each element in turn.

A. Injury

       In its complaint Kawa alleges Treasury’s delay in enforcing the employer

mandate injured it because the delay caused Kawa to “lose some, if not all, of the

value of the time and resources it expended in 2013 in anticipation of the mandate

going into effect on January 1, 2014.” Kawa alleges it would not have spent its

time and money researching the ACA in 2013 had it known the mandate would be

delayed until 2015, “but instead would have spent its time, resources, and money

on other priorities.”




       1
         Because we conclude Kawa lacks Article III standing, we need not address whether
Treasury’s decision to postpone enforcement of the employer mandate is unreviewable under
§ 701(a)(2) of the Administrative Procedure Act (the APA), which precludes judicial review of
an agency’s action if the “agency action is committed to agency discretion by law.” 5 U.S.C.
§ 701(a)(2).


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      To satisfy the injury requirement, Kawa must show “an invasion of a legally

protected interest that is sufficiently concrete and particularized rather than abstract

and indefinite.” Ga. State Conference of NAACP Branches v. Cox, 183 F.3d 1259,

1262 (11th Cir. 1999). “The interest must consist of obtaining compensation for,

or preventing, the violation of a legally protected right.” Vt. Agency of Natural

Res., 529 U.S. at 772, 120 S. Ct. at 1862.

      The allegations in Kawa’s complaint do not state such a concrete and

particularized injury. Although Kawa asserts it would have waited to research its

ACA obligations, Kawa has not alleged that its ACA research is objectively worth

less, or that Kawa has been actually harmed in a concrete way. See GrassRoots

Recycling Network, Inc. v. E.P.A., 429 F.3d 1109, 1112 (D.C. Cir. 2005) (holding a

plaintiff failed to show an actual injury to challenge an EPA rule when the plaintiff

alleged he “would not have purchased” a piece of property or “would have paid . . .

less” because the plaintiff’s allegations showed only that the property was “worth

less to him,” not that the property was “in fact worth less”). Therefore, as set out

in its complaint, Kawa’s bare allegation that it has lost the “value of the time and

resources it expended in 2013” sets out an injury that is too abstract and indefinite

to confer Article III standing, particularly because the substantive requirements for

complying with the employer mandate remain unchanged and Kawa is still subject

to them.



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       The dissent characterizes Kawa’s alleged injury as the “lost two years of

interest” Kawa could have accrued on the money spent in 2013 to comply with the

employer mandate. However, as this appeal comes to us on a motion to dismiss,

we must evaluate Kawa’s standing “based on the facts alleged in the complaint.”

Shotz v. Cates, 256 F.3d 1077, 1081 (11th Cir. 2001). We may not hypothesize or

speculate about the existence of an injury Kawa did not assert. Id. (“[W]e may not

speculate concerning the existence of standing or piece together support for the

plaintiff.” (quotation omitted)). Kawa’s complaint does not mention the word

“interest,” let alone allege that Kawa had specific plans to invest its money into an

interest-bearing asset. 2 Therefore, Kawa’s lost-interest argument is waived.

See Bryant v. Jones, 575 F.3d 1281, 1308 (11th Cir. 2009) (“[A]bsent

extraordinary circumstances, legal theories and arguments not raised squarely

before the district court cannot be broached for the first time on appeal.”).

       In short, Kawa’s complaint alleges only a subjective perception that

Treasury’s delay caused it harm, which is insufficient to establish Article III

standing. 3


       2
          Kawa’s response to the motion to dismiss also makes no mention of lost interest. It was
not until its initial brief before this Court that Kawa made a one-sentence passing reference to
lost interest, stating only that “[a]t a minimum, Kawa Ortho could have saved its money and
accrued interest on it rather than spending it on compliance with a mandate that never took
effect.” Appellant Br. 16.
       3
         Even if Kawa’s complaint had alleged lost interest revenue as its injury, that would not
confer standing on it to challenge Treasury’s delay. First, as explained in our discussion of


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B. Causation

       Even if Kawa had established a concrete and particularized injury, Kawa’s

claim of standing fails on the causation requirement.

       To establish causation, Kawa must demonstrate its alleged injury is “fairly

traceable to the challenged action of the defendant, and not the result of the

independent action of some third party not before the court.” Lujan, 504 U.S. at

560, 112 S. Ct. at 2136 (quotation and alterations omitted). Kawa alleges its injury

was caused by Treasury’s delay of the mandate. Kawa has not demonstrated its

purported injury is fairly traceable to Treasury’s delay. Any injuries associated

with the timing of Kawa’s compliance expenses, including any opportunity costs,

are attributable to the ACA itself. Cf. Arcia v. Fla Sec’y of State, No. 12-15738,

2014 WL 6235917, at *4 (11th Cir. Nov. 17, 2014) (plaintiffs who incurred costs

because of Florida’s voter-removal program had standing to challenge that

particular program); Habitat Educ. Ctr. v. U.S. Forest Serv., 607 F.3d 453, 456-57

(7th Cir. 2010) (plaintiff who incurred costs because of an order requiring it to post

a bond had standing to challenge bond order). Treasury played no role in

determining when or how Kawa allocated its resources in preparation for the




causation, it was the ACA itself, not Treasury’s delay, which caused Kawa to spend money on
legal research in 2013 and thereby forego the opportunity to earn interest on whatever money it
spent. Second, as explained in our discussion of redressability, the only remedy that could
restore Kawa’s lost interest is money, which Kawa does not seek.


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employer mandate and reporting requirements of the ACA. Therefore, Kawa

cannot show causation. 4

C. Redressability

       Even if Kawa had met both the injury and causation requirements to

establish standing, it cannot meet the redressability requirement. This is so

because Kawa does not—and cannot 5—seek money damages in this case, and

money damages are the only relief that could redress Kawa’s alleged injury. Kawa

nevertheless requests a declaratory judgment that Treasury’s transition relief

violates the Administrative Procedure Act and an injunction prohibiting and setting

aside the transition relief. Kawa argues an injunction would reinstate the original

January 1, 2014, effective date of the mandate, and Kawa would thereby regain

some or all of the value of its 2013 expenditures.

       To establish redressability, “it must be likely, as opposed to merely

speculative, that the injury will be redressed by a favorable decision.” Lujan, 504

U.S. at 561, 112 S. Ct. at 2136 (quotation omitted). In this case, granting the

requested declaratory and injunctive relief would not redress Kawa’s purported

injury. Kawa would not recoup its compliance expenses or any value associated

with the time and resources Kawa expended in 2013. The consequence of granting

       4
         The dissent does not cite any authority for its view that Kawa’s alleged injury is fairly
traceable to Treasury’s actions, but instead relies only on its characterization of Kawa’s injury.
       5
         Damages are not available under the Administrative Procedure Act in this action. See 5
U.S.C. § 702 (authorizing actions seeking “relief other than money damages”).


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the requested relief would be to simply subject Kawa and other employers to the

employer mandate tax penalties and reporting requirements. Kawa has not

explained how Treasury’s enforcement of tax penalties and reporting requirements

would put Kawa in any different position than Kawa is currently in now, or how

the requested relief will or could increase the value of the resources Kawa

expended. See DiMaio v. Democratic Nat’l Comm., 520 F.3d 1299, 1303 (11th

Cir. 2008) (explaining a plaintiff lacked standing where the complaint did not

“suggest in any way how [the] ‘injury’ could be redressed by a favorable

judgment”). Therefore, Kawa has not shown redressability. 6

                                   IV. CONCLUSION

       For the foregoing reasons, we conclude Kawa lacks Article III standing.

       AFFIRMED.




       6
          The dissent argues that an injunction “would end the continued injury Kawa faces from
each new day of unearned interest on the money” Kawa spent on compliance in 2013. But
nothing short of monetary compensation that may be invested in an interest-bearing account
could stop Kawa from continuing to lose the potential interest revenue Kawa gave up in 2013
when it paid for ACA research. As explained, Kawa does not seek and cannot obtain monetary
damages. And neither a declaratory judgment nor an injunction could restore to Kawa its alleged
loss of time and value.


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MARTIN, Circuit Judge, dissenting:

      Kawa Orthodontics, LLP (Kawa) filed suit in federal court challenging the

Treasury Department’s decision to delay enforcement of the “employer mandate”

provisions of the Patient Protection and Affordable Care Act (ACA). Before us is

the narrow question of whether Kawa has Article III standing to challenge that

delay. Because I believe that Kawa has standing, I respectfully dissent.

                                         I.

      The ACA requires employers with more than fifty full-time employees to

provide minimum essential health-insurance coverage to its employees and their

dependents or pay a tax penalty. 26 U.S.C. § 4980H. According to the statute,

these provisions (known as the “employer mandate”) were scheduled to take effect

on January 1, 2014. Pub. L. No. 111-148, § 1513(d), 124 Stat. 119, 256.

However, on July 2, 2013, the Treasury Department announced a one-year delay in

enforcement of the employer mandate. See IRS Notice 2013-45, Transition Relief

for 2014 Under §§ 6055 (§ 6055 Information Reporting), 6056 (§ 6056

Information Reporting) and 4980H (Employer Shared Responsibility Provisions),

IRB 2013-31, July 29, 2013, available at http://www.irs.gov/irb/2013-

31_IRB/ar08.html. That delay has since been extended until the end of 2015 for

employers with between fifty and ninety-nine employees. See 79 Fed. Reg. 8544

(Feb. 12, 2014).
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      In October 2013, Kawa filed suit in federal district court challenging

Treasury’s delay in enforcing the employer mandate. Kawa has more than fifty

full-time employees and would therefore be subject to the provision. According to

the complaint, prior to the announcement of delayed enforcement, Kawa incurred

certain costs “including money spent on legal fees . . . in order to determine what

options and obligations it ha[d] under the ‘employer mandate’ and how the

coverage Plaintiff [then] offer[ed] to its employees w[ould] be affected by the

mandate.” Kawa alleged that had it known the employer mandate would not be

enforced until well after January 1, 2014, it “would not have expended its time and

resources and incurred these anticipatory costs in 2013 . . . but instead would have

spent its time, resources, and money on other priorities.” In short, Kawa alleged

injury because it “los[t] some, if not all, of the value of the time and resources it

expended in 2013 in anticipation of the mandate going into effect on January 1,

2014.” Kawa sought declaratory and injunctive relief under the Administrative

Procedure Act (APA) setting aside the delay of the employer mandate. On January

13, 2014, the District Court dismissed Kawa’s suit for lack of subject-matter

jurisdiction, holding that Kawa lacked Article III standing. Kawa appeals that

holding here.




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                                           II.

        In order to show standing, a plaintiff “must allege personal injury fairly

traceable to the defendant’s allegedly unlawful conduct and likely to be redressed

by the requested relief.” Allen v. Wright, 468 U.S. 737, 751, 104 S. Ct. 3315,

3324 (1984), abrogated on other grounds by Lexmark Int’l, Inc. v. Static Control

Components, Inc., __ U.S. __, 134 S. Ct. 1377 (2014). The “party invoking federal

jurisdiction bears the burden of establishing these elements.” Lujan v. Defenders

of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130, 2136 (1992). “We review issues

of standing de novo.” Hollywood Mobile Estates, Ltd. v. Seminole Tribe of Fla.,

641 F.3d 1259, 1264 (11th Cir. 2011). After careful consideration, I believe that

Kawa has alleged facts sufficient to meet each part of the three-pronged standing

test.

                                           A.

        First, Kawa has shown that it has sustained an injury as a result of the

government’s decision to delay enforcement of the employer mandate. It spent

money on compliance costs two years earlier than necessary, and therefore lost two

years of interest on those expenditures. Under basic rules of accounting, “[a]

dollar today is worth more than a dollar tomorrow.” Atlanta Mut. Ins. Co. v.

Comm’r, 523 U.S. 382, 384, 118 S. Ct. 1413, 1415 (1998) (quoting D. Herwitz &

M. Barrett, Accounting for Lawyers 221 (2d ed. 1997)); see also Till v. SCS Credit



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Corp., 541 U.S. 465, 487, 124 S. Ct. 1951, 1966 (2004) (Thomas, J., concurring in

the judgment) (“$4,000 today is worth more than $4,000 to be received 17 months

from today because if received today, the $4,000 can be invested to start earning

interest immediately.” (footnote omitted)). This is the “time value of money.” See

Habitat Educ. Ctr. v. U.S. Forest Serv., 607 F.3d 453, 459 (7th Cir. 2010). Here,

had Kawa spent money to ensure its compliance with the employer mandate in

2015 instead of 2013, it could have earned an additional two years of interest on

that money. Or, instead of earning interest, Kawa could have invested that money

in other endeavors to generate two years’ worth of added profits to the company.

Cf. Arcia v. Florida Sec’y of State, 746 F.3d 1273, 1279 (11th Cir. 2014) (“Under

the diversion-of-resources theory, an organization has standing to sue when a

defendant’s illegal acts impair the organization’s ability to engage in its own

projects by forcing the organization to divert resources in response.”). 1

       This loss of the time value of Kawa’s money is a sufficient injury to meet

the requirements of Article III standing. Recently, in Habitat Education Center, the

Seventh Circuit addressed a similar question and held that the plaintiff had

standing to challenge a deposit of $10,000 with the court, even though it was



       1
        The owner of Kawa, Larry Kawa, also said in his declaration that he “spent
approximately 100 hours researching and familiarizing [him]self with the ACA and the
‘employer mandate.’” “Had [he] not spent [his] time researching the ACA and the ‘employer
mandate’ and seeking and obtaining professional advice on how best to comply with the
mandate, [he] would have spent this same time generating new patient referrals for Kawa Ortho.”


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possible the plaintiff would eventually receive the full amount of money back if it

won the case. Id. at 457. The Seventh Circuit reasoned:

      It could be argued that unless and until damages are assessed, Habitat
      has incurred no loss and therefore lacks standing to appeal. But it has
      incurred a loss—a loss of the use of $10,000. Every day that a sum of
      money is wrongfully withheld, its rightful owner loses the time value
      of the money. Suppose no damages are ever assessed against Habitat
      and so eventually the court returns the $10,000 that it is holding; there
      would be no procedural vehicle to enable Habitat to recover the loss
      of the time value of its money. Therefore it had standing to challenge
      the bond order on appeal from the final judgment.

Id.

      The very same can be said here. Kawa alleged that it “spent [money] on

legal fees . . . in order to determine what options and obligations it ha[d] under the

[ACA].” And by paying lawyers to ensure that its health insurance program

complied with the ACA in 2013 rather than 2015, Kawa lost two years of interest

on those expenditures. Given that the Supreme Court has found an injury as small

as “a $5 fine and costs” and a “$1.50 poll tax” sufficient to show standing, United

States v. SCRAP, 412 U.S. 669, 689 n.14, 93 S. Ct. 2405, 2417 (1973), I

understand the lost interest on thousands of dollars of legal payments that were

prematurely spent to meet the injury prong of standing. See also F. Andrew

Hessick, Probabilistic Standing, 106 Nw. U. L. Rev. 55, 67–68 (2012) (“[S]tanding

treats identically a plaintiff who alleges only 1¢ in harm and a plaintiff who alleges




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a $100,000 injury; both have a personal stake warranting invocation of the

courts.”).

      Of course, I agree that the information Kawa obtained as a result of its legal

expenditures will also be valuable in 2015 when the employer mandate goes into

effect. However, looking only to the utility of Kawa’s legal expenditures ignores

the fact that Kawa could have obtained that information two years later, and

benefited from the use of interest earned on that money had it known of the delay.

Monetary loss—no matter how small—has been recognized as a cognizable injury

for standing purposes. I would hold that Kawa has alleged facts that show an

injury sufficient to demonstrate Article III standing.

                                          B.

      Second, Kawa has shown that its “injury [is] fairly traceable to the

defendant’s allegedly unlawful conduct,” Allen, 468 U.S. at 751, 104 S. Ct. at

3324. The government argues that Kawa’s asserted injury “did not result from the

actions of the defendants in this case,” but rather “from the enactment of the statute

itself.” Were the alleged injury the fact that Kawa spent the money on compliance

costs at all, the government would be correct that the statutory mandate—not the

delay—brought about the need to make such expenditures. But since the injury is

the lost time value of Kawa’s expenditures, not the expenditures themselves, the




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only reason for that loss is the delay in enforcement. I would hold that Kawa has

alleged causation sufficient to demonstrate Article III standing.

                                         C.

      Third, Kawa has shown that its injury is “likely to be redressed by the

requested relief.” Allen, 468 U.S. at 751, 104 S. Ct. at 3324. When determining

redressibility, we simply inquire as to whether the plaintiff has shown that it would

gain some relief in the event of a favorable ruling. See Hollywood Mobile Estates,

641 F.3d at 1266.

      Here, Kawa sought relief under the APA for injunctive and declaratory

relief—not monetary damages. I agree with the District Court that “[n]either a

declaration that Defendants acted unlawfully nor an injunction requiring the

immediate implementation of the employer mandate would compensate Plaintiff

for its time and resources expended in 2013.” However, compensation is not the

only means of redress. Kawa may not be able to obtain redress for the interest it

has lost between January 1, 2014, and now. But if a court required the government

to enforce the employer mandate going forward, that decision would end the

continued injury Kawa faces from each new day of unearned interest on the money

it prematurely used for those legal expenditures. In other words, it would not have

unnecessarily spent the money before it needed to. For this reason, I would hold

that Kawa has met the redressibility prong for Article III standing.



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                                          III.

      The majority says that because “Kawa’s complaint does not mention the

word ‘interest,’ let alone allege that Kawa had specific plans to invest its money

into an interest-bearing asset . . . [its] lost-interest argument is waived.” But I am

mindful that “[w]hen the defendant challenges standing via a motion to dismiss,

both trial and reviewing courts must accept as true all material allegations of the

complaint, and must construe the complaint in favor of the complaining party.”

Region 8 Forest Serv. Timber Purchasers Council v. Alcock, 993 F.2d 800, 806

(11th Cir. 1993) (quotation marks omitted). We may find standing “based on the

facts alleged in the complaint.” Shotz v. Cates, 256 F.3d 1077, 1081 (11th Cir.

2001) (emphasis added). The plaintiffs’ complaint here clearly says that “Plaintiff

would not have expended its time and resources and incurred these anticipatory

costs in 2013 if the mandate had not been schedule to take effect until 2015, but

instead would have spent its time, resources, and money on other priorities.” The

complaint also states that the delay in enforcement of the “employer mandate” has

“caus[ed] Plaintiff to lose some . . . of the value of the time and resources it

expended in 2013.” Applying the well-known principle of “the time value of

money” means that spending money on other priorities in 2013—and reaping the

benefits of those investments between 2013 and 2015—would financially benefit

Kawa even if it eventually expends money in 2015 to comply with the mandate.



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Construing Kawa’s complaint liberally, I understand Kawa to have easily alleged

facts sufficient to demonstrate Article III standing in its complaint. 2

        Of course, my view on the issue of standing has nothing to do with the

merits of Kawa’s complaint challenging the employer mandate’s delayed

enforcement under the APA. In fact, any discussion of the merits here would be

inappropriate. See, e.g., Mulhall v. UNITE HERE Local 355, 618 F.3d 1279, 1294

(11th Cir. 2010) (holding, after we found standing following a district court’s

dismissal for lack of subject matter jurisdiction, that “[t]he merits will be for the

district court to decide on remand”). However, I would hold that Kawa has alleged

facts that demonstrate it has met the requirements of Article III standing, and

would remand and allow the District Court to address the merits of Kawa’s claims.

I therefore respectfully dissent.




       2
          I agree with the majority’s suggestion that Kawa has poorly explained how expending
funds in 2013 rather than in 2015 would injure it. However, a party’s deficient enunciation of a
legal argument does not strip us of our duty to view the complaint in the light most favorable to
the plaintiff and determine whether it has alleged facts sufficient to show standing. See
Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990) (“Facial attacks on the complaint
require the court merely to look and see if the plaintiff has sufficiently alleged a basis of subject
matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the
motion.” (quotation marks omitted)).


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