 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued January 10, 2014               Decided March 7, 2014

                        No. 13-5003

ASSOCIATION OF AMERICAN PHYSICIANS AND SURGEONS AND
         ALLIANCE FOR NATURAL HEALTH USA,
                    APPELLANTS

                              v.

   KATHLEEN SEBELIUS, SECRETARY OF HEALTH & HUMAN
                       SERVICES,
           IN HER OFFICIAL CAPACITY, ET AL.,
                      APPELLEES


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:10-cv-00499)


     Lawrence J. Joseph argued the cause and filed the briefs
for appellants.

     Dana L. Kaersvang, Attorney, U.S. Department of
Justice, argued the cause for appellees. With her on the brief
were Stuart F. Delery, Assistant Attorney General, Ronald C.
Machen Jr., U.S. Attorney, and Mark B. Stern, Attorney.
Alisa B. Klein, Attorney, U.S. Department of Justice, entered
an appearance.
                                 2

   Before: ROGERS, Circuit Judge, and WILLIAMS and
SENTELLE, Senior Circuit Judges.

   Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.

     WILLIAMS, Senior Circuit Judge: Plaintiff-appellants
Association of American Physicians & Surgeons, Inc. and
Alliance for Natural Health USA sued the Secretary of Health
and Human Services and the Commissioner of the Social
Security Administration 1 in district court, raising a wide
variety of claims: (1) constitutional challenges to the Patient
Protection and Affordable Care Act (“ACA”), (2) statutory
(including Administrative Procedure Act) challenges to
actions of HHS and the Commissioner relating to the
implementation of ACA and prior Medicare legislation, and
(3) a somewhat amorphous attack on the failure of the
defendants to render an “accounting” that would (they argue)
alert the American people to the insolvency towards which the
Medicare and Social Security programs are heading. The
district court dismissed the challenges variously for lack of
jurisdiction or for failure to state a claim upon which relief
can be granted. Association of American Physicians &
Surgeons, Inc. v. Sebelius, 901 F. Supp. 2d 19 (D.D.C. 2012)
(“AAPS I”); see Fed. R. Civ. P. 12(b)(1), (6). Each of the
challenges ultimately fails, for the reasons set forth below.




    1
       The Secretary of the Treasury is also named as a defendant,
but appellants direct no arguments specifically to him.
                                 3

                   Constitutional Challenges

    We take the constitutional claims first. If successful, they
would radically alter the context for the statutory claims,
while there is no chance that the statutory claims, if
successful, would avoid the constitutional questions.
     Appellants attack 26 U.S.C. § 5000A, often spoken of
informally as the ACA’s individual health insurance mandate,
which was sustained as a valid exercise of the taxing power in
National Federation of Independent Business v. Sebelius, 132
S. Ct. 2566 (2012) (“NFIB”). 2 Id. at 2593-2600; Id. at 2609
(Ginsburg, J., joined by Breyer, Kagan, and Sotomayor, JJ.,
concurring) (agreeing that “the minimum coverage provision
is a proper exercise of Congress’ taxing power”). They argue
that the tax violates both the Fifth Amendment’s prohibition
of the taking of private property without just compensation
and the origination clause, U.S. Const. art. I, § 7, cl. 1, which
provides that “All Bills for raising Revenue shall originate in
the House of Representatives; but the Senate may propose or
concur with Amendments as on other Bills.”
   As to takings, the district court applied the Supreme
Court’s opinion in Brushaber v. Union Pac. Railroad Co., 240

    2
          Appellants mentioned the corresponding provision for
employers in their opening brief but provided no rationale for
treating it differently from the individual mandate. Appellants also
mentioned an equal protection argument in their opening brief, but
only in the standing section, not in the merits section. Later they
appeared to advance arguments involving the equal protection
clause and the employer provisions in letters filed under Fed. R.
App. P. 28(j) (e.g., letters of July 15, 2013). Under these
circumstances we have no occasion to address the claims involving
the employer mandate or the equal protection clause.
                               4

U.S. 1, 24-25 (1916), holding that an otherwise valid tax
could run afoul of the takings clause only in a “case where,
although there was a seeming exercise of the taxing power,
the act complained of was so arbitrary as to constrain to the
conclusion that it was not the exertion of taxation, but a
confiscation of property.” See AAPS I, 901 F. Supp. 2d at 38-
39.
     In an apparent effort to squeeze § 5000A into that narrow
category, appellants argue that the tax (and the insurance
program of which it is a part) asks “healthy private individuals
to support unhealthy private individuals.” Appellants’ Br. 32.
In support they cite the Court’s observation in Kelo v. City of
New London, Conn., 545 U.S. 469 (2005), that “it has long
been accepted that the sovereign may not take the property of
A for the sole purpose of transferring it to another private
party B, even though A is paid just compensation.” Id. at 477.
But it is impossible to read that sentence in Kelo (even if we
were to treat it as a holding, which it isn’t) as suggesting that
any redistributive purpose sweeps an otherwise valid tax into
the narrow group of measures condemned by Brushaber.
     Appellants make much of an assertion that their takings
clause challenge is as-applied rather than facial. But other
than saying so, they give us no reason why this should yield a
more favorable outcome for the claim. We thus affirm the
district court.
     In support of their origination clause claim, appellants
argue that though the bill ultimately eventuating in the ACA
originated in the House, it was not, as it left that chamber, a
revenue bill; only amendments added in the Senate that made
it such a bill. Appellants raised this argument for the first
time only after an order by the district court, after the Court
issued its decision in NFIB, inviting supplemental pleadings,
well after appellants filed their opposition to the government’s
motion to dismiss. The district court dismissed the claim on
                               5

the principle that when a plaintiff files an opposition to a
motion to dismiss, and addresses only some of the defendant’s
arguments, the ones not addressed may be taken as conceded.
AAPS I, 901 F. Supp. 2d at 37-38 (citing Iweala v.
Operational Techs. Servs., Inc., 634 F. Supp. 2d 73, 80
(D.D.C. 2009)). Appellants do not contest the general
principle, but argue that because they raised the origination
clause claim in supplemental briefing ordered by the district
court, there was no waiver or forfeiture.
     Insofar as the government recognizes that the order for
supplemental briefing renders this situation atypical, it focuses
on the fact the order required both parties to file their
supplemental briefs simultaneously. It’s hard to see how the
mere fact of simultaneous filing helps the government. If it
felt that appellants had improperly raised new arguments, it
was free to seek leave to object on that ground, to offer
contrary arguments on the merits, or to move to amend its
pleadings, Fed. R. Civ. P. 15. It did none of these.
     Regardless of the simultaneous filings, two
considerations support the district court’s decision to treat the
argument as conceded. First, the briefing in NFIB and the
lower court decisions reviewed in NFIB, long before the
decision issued, clearly raised the possibility that § 5000A
would be sustained as a tax. See, e.g., NFIB, 132 S. Ct. at
2593-2600 (opinion of Chief Justice Roberts) (addressing the
government’s tax theory), 2650-55 (opinion of Justices Scalia,
Kennedy, Thomas and Alito) (same). The government
offered that theory as a defense in this very case, see Motion
to Dismiss 5, 44-47, and appellants resisted the claim with
roughly five pages of their opposition to that motion, see
Opposition to Motion to Dismiss 41-46. Thus the decision in
NFIB did no more than render the tax theory more salient than
it had been.
                                6

     Second, the district court called for supplemental briefing
only to address “whether [NFIB] and Hall v. Sebelius [667
F.3d 1293 (D.C. Cir. 2012), addressed below] require the
dismissal of any counts.” It was thus much more limited than
plaintiffs now suggest; it did not invite briefing “on the
impact” of NFIB. Compare Reply Br. 17-18. The district
court was therefore perfectly reasonable in applying the
standard rule inferring concession from gaps in a plaintiff’s
opposition to a motion to dismiss.
     We note, though we do not rely on, the presence of an
origination clause challenge to § 5000A in Sissel v. U.S. Dep’t
of Health & Human Servs., 951 F. Supp. 2d 159 (D.D.C.
2013), appeal pending, No. 13-5202 (D.C. Cir.).

               Statutory (Including APA) Claims

     Appellants’ first statutory claim is an objection to
provisions in a Social Security Administration (“SSA”)
handbook, the Social Security Program Operations Manual
System (“POMS”). These provisions explain that individuals
entitled to social security benefits are automatically entitled to
Medicare Part A benefits. POMS HI 00801.002, POMS HI
00801.034, and POMS GN 00206.020. Appellants argue that
the handbook provisions exceed the SSA’s statutory authority
and that their adoption should have been preceded by notice-
and-comment rulemaking. The district court dismissed the
claim on a variety of standing theories. AAPS I, 901 F. Supp.
2d at 29-34. We affirm on a somewhat simpler basis.

     First, appellants’ substantive attack on the POMS
provisions is clearly foreclosed by our decision in Hall v.
Sebelius, 667 F.3d 1293 (D.C. Cir. 2012), holding that the
statutory text establishing Medicare Part A precludes any
option not to be entitled to its benefits (though eligible
persons are free not to exercise their entitlement). Id. at 1295-
                                7

97. Although Steel Co. v. Citizens for a Better Environment,
523 U.S. 83, 94-95 (1998), normally bars a court from
addressing a substantive merits claim before addressing all
jurisdictional vulnerabilities (the government presses several,
such as the channeling provision of 42 U.S.C. § 405(h)), there
is an exception within Steel Co. for a merits decision resting
entirely on prior or simultaneous rulings on an identical merits
question, id. at 98-101.

     Second, appellants’ claim to notice-and-comment
procedures under the APA fails because our decision in Hall
eliminates any possibility that such procedures could remedy
appellants’ alleged injury. It is true that a party asserting a
procedural injury enjoys a somewhat relaxed test as to
whether compliance with the procedural requirement would
lead to “redress” of the party’s substantive injury (i.e., lead to
a less injurious outcome), see Lujan v. Defenders of Wildlife,
504 U.S. 555, 572 n.7 (1992), but here there is no way
whatsoever that notice-and-comment procedures could help
appellants, see, e.g., Simon v. Eastern Ky. Welfare Rights
Org., 426 U.S. 26, 38, 41-43 (1976). Hall did not hold that
the POMS permissibly interpreted the statute to preclude
withdrawal by eligible persons from the entitlement to
Medicare Part A. Rather it held that the statute itself barred
any such effort to escape entitlement. Hall, 667 F.3d at 1296
(“under the law, plaintiffs remain legally entitled to the
benefits regardless of whether they accept them”); id.
(“plaintiffs’ position is inconsistent with the statutory text”).
Accordingly, all the procedure in the world could not lawfully
lead the SSA to a conclusion that would redress appellants’
substantive injury.
     Appellants’ second statutory claim attacks an interim
final rule, Changes in Medicare and Medicaid Programs, 75
Fed. Reg. 24,437 (May 5, 2010) (“IFR”), and two 2009
changes to a Medicare claims processing manual, Change
                                8

Requests 6417 and 6421, on both procedural and substantive
grounds. (“Change Request” is the term for an update to
HHS’s online manual, see Complaint, ¶ 76). The district
court rejected the claims in part on a standing theory and in
part on the merits. AAPS I, 901 F. Supp. 2d at 39-46. The
government argues that the claims are moot, and we agree.
    The district court’s discussion thoroughly describes the
IFR and the Change Requests. It is enough for our purposes
to observe that they govern the process by which physicians
may “opt out” of participation in Medicare Part B, and, having
opted out, may nonetheless refer patients for services covered
by Part B.
     As is common with interim final rules, the IFR here was
superseded by a rule promulgated after notice and comment,
Changes in Medicare and Medicaid Programs, 77 Fed. Reg.
25,284 (Apr. 27, 2012), issued while this case was pending in
the district court. The government argues that the procedures
accompanying adoption of the 2012 rule clearly moot
appellants’ procedural claim. Moreover, the Secretary made
substantive changes to the interim rule as a result of the
comments. See, e.g., id. at 25,291-92. Appellants do not
dispute these points.
     In their opening brief, appellants make the startling
argument that their claim is not moot because, “once the 2012
rule is invalidated, the Administration will need to retreat to
the procedurally defective actions challenged here.”
Appellants’ Br. 49. Appellants cite no case or reasoning to
support the idea that a claim can be saved from mootness by
the court’s blithely hypothesizing that a whole other set of
rules, not at issue in the present case, or so far as appears even
challenged in any proceeding, may be invalid. Appellants
also argue that when we hold ACA unconstitutional as a
violation of the origination clause, the IFR, etc., will
inevitably fall. We may assume arguendo that the second step
                                9

in this argument is sound, but that is of no help to appellants:
their premise—that we would vindicate their origination
clause claim—has proven incorrect. Appellants further argue
that the “substantive defects” carry over from the IFR to the
2012 rule, and that this commonality defeats mootness. But it
is clearly preferable as a general matter to review a set of
claims in the context of an extant rather than a defunct rule,
and appellants do not even argue that the passages to which
they object are so isolated as to defeat that general principle.


                  Claim for an “Accounting”

     Finally, appellants claim that the Social Security
Commissioner and the Secretary have violated their “fiduciary
and equitable duties,” Compl. ¶¶ 111, 117, by failing to
provide an “honest accounting” of the financial situation
facing Social Security and Medicare. Id. at ¶¶ 106-117. The
district court held that plaintiffs did not identify an injury
sufficient for standing and dismissed on that ground, AAPS I,
901 F. Supp. 2d at 46, a position endorsed by the government
on appeal.      The plaintiffs stress that, contrary to the
conclusion of the district court, they have asserted such an
injury, pointing to the particular interest in the solvency of the
Medicare Program held by the physician members of
appellant organizations.
    We need not address whether appellants’ alleged injury
should be classified as merely an abstract interest “in proper
application” of the laws, as the district court found, AAPS I,
901 F. Supp. 2d at 46, citing Lujan, 504 U.S. at 573-74, or as
a harm that, though very widely shared, is sufficiently
concrete to satisfy Article III’s injury requirement, FEC v.
Akins, 524 U.S. 11, 23-25 (1998). Appellants provide no legal
argument for their claims against the Commissioner and
Secretary. They do not cite a statute, the Constitution, or any
                              10

case law for the foundation of the alleged fiduciary duties;
they do not even sketch a penumbra possibly emanating from
any part of the laws or Constitution of the United States.
Although “[i]t is firmly established in our cases that the
absence of a valid (as opposed to arguable) cause of action
does not implicate subject-matter jurisdiction,” Steel Co., 523
U.S. at 89, it is equally clear that where a claim is “wholly
insubstantial and frivolous,” it may be dismissed for want of
jurisdiction. Bell v. Hood, 327 U.S. 678, 682-83 (1946). As
the filings in the district court and before this court do not
disclose even an arguable theory, we find a want of
jurisdiction over the claim to an “accounting.”

                            * * *

    For the reasons stated above, the judgment of the district
court is

                                                 Affirmed.
