 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued April 5, 2016                   Decided May 13, 2016

                        No. 15-5164

   AMERICAN FREEDOM LAW CENTER AND ROBERT JOSEPH
                      MUISE,
                    APPELLANTS

                              v.

   BARACK HUSSEIN OBAMA, IN HIS OFFICIAL CAPACITY AS
   PRESIDENT OF THE UNITED STATES OF AMERICA, ET AL.,
                      APPELLEES


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:14-cv-01143)


    Robert Joseph Muise argued the cause for appellants.
With him on the briefs was David Yerushalmi.

     Katherine Twomey Allen, Attorney, U.S. Department of
Justice, argued the cause for appellees. With her on the brief
were Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, and Mark B. Stern and Alisa B. Klein, Attorneys.

    Before: GRIFFITH, SRINIVASAN and WILKINS, Circuit
Judges.

    Opinion for the Court filed by Circuit Judge WILKINS.
                               2
    WILKINS, Circuit Judge: Appellants Robert Muise and
American Freedom Law Center allege that their health
insurance premiums increased by 57% at the end of 2014, and
claim that the Affordable Care Act (“ACA”) is to blame.
Specifically, Appellants contend that in late 2013, the
Department of Health and Human Services (“HHS”)
unlawfully implemented two policies: a “Transitional Policy,”
which permitted health insurance companies to temporarily
continue providing health insurance plans that do not comply
with ACA requirements; and a “Hardship Exemption,” which
permitted some individuals whose policies were cancelled for
noncompliance to avoid the penalty under the individual
mandate. These actions, Appellants argue, caused fewer
people to purchase ACA-compliant plans. They assert that
the Transitional Policy drove up the cost of ACA-compliant
plans, such as the one purchased by Appellants. They also
claim that HHS violated equal protection principles by
applying either the Transitional Policy or the Hardship
Exemption in a discriminatory fashion. At issue in this case is
whether Appellants have standing to raise their challenges.

     We affirm the District Court’s determination that
Appellants lack standing.          Appellants have failed to
demonstrate that the Transitional Policy caused Appellants’
insurer, Blue Cross Blue Shield of Michigan (“Blue Cross”),
to increase the premium for their health care plan specifically.
Additionally, any alleged injury to Appellants from the
Transitional Policy stemmed not from the Policy itself, which
HHS applied evenhandedly, but from Blue Cross’s decision
not to take advantage of the Policy. Accordingly, Appellants
also lack standing to bring their equal protection challenge.
                              3
                              I.

                             A.

     The ACA, enacted by Congress in 2010, “aims to
increase the number of Americans covered by health
insurance and decrease the cost of health care.” Nat’l Fed’n
of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2580 (2012).
Among other things, the ACA institutes an individual
mandate, which requires each “applicable individual” to
purchase health insurance by maintaining “minimum essential
coverage,” and requires those who fail to do so to pay a
“penalty.” 26 U.S.C. § 5000A(a)-(c). In enacting the ACA,
Congress acknowledged that the individual mandate was an
important part of the overall functioning of the law, noting
that “significantly increasing health insurance coverage . . .
will minimize . . . adverse selection and broaden the health
insurance risk pool to include healthy individuals, which will
lower health insurance premiums.” 42 U.S.C. § 18091(2)(I).

     The ACA also imposes a number of new “market
reforms,” setting forth minimum standards that all offered
health insurance plans must meet. See, e.g., id. § 300gg
(prohibiting discriminatory premium rates); id. § 300gg-1
(guaranteeing issuance of coverage); id. § 300gg-3
(prohibiting preexisting conditions exclusions); id. § 18022
(defining essential health benefits requirements). These
reforms were scheduled to take effect on January 1, 2014.
See Cutler v. HHS, 797 F.3d 1173, 1177 (D.C. Cir. 2015)
(citing 42 U.S.C. § 300gg (note)). Prior to that time, certain
health insurance providers began cancelling some health
insurance plans that did not comply with the ACA’s reforms.
In a letter HHS sent to state insurance commissioners in
November 2013, it explained that
                                  4
        [a]lthough affected individuals and small
        businesses may access quality health insurance
        coverage through the new Health Insurance
        Marketplaces, in many cases with federal
        subsidies, some of them are finding that such
        coverage would be more expensive than their
        current coverage, and thus may be dissuaded
        from immediately transitioning to such
        coverage.

J.A. 43. To ameliorate this problem, HHS announced in its
letter a Transitional Policy, whereby HHS would not enforce
the ACA’s market reform requirements against health
insurance providers until October 2014. J.A. 43-45. It later
extended that deadline ultimately to October 2017. 1 The
Transitional Policy thus allowed individuals whose plans
otherwise would have been terminated to keep their original
health insurance during this transitional period, so long as
their health insurance provider agreed to continue issuing
their plan. The Policy, however, applies solely to health
insurance providers, which are given the option of
temporarily providing non-ACA-compliant plans, though they
are not required to do so. The Policy does not apply to
individuals, who still are required to comply with the ACA’s
individual mandate, unless they qualify for the Hardship
Exemption.


1
  In March 2014, HHS extended the policy for an additional two
years, to October 1, 2016. J.A. 50-51. In February 2016, it
extended the transitional period for an additional year, to October 1,
2017. Letter from Kevin Counihan, Dir., Ctr. for Consumer Info. &
Ins. Oversight (February 29, 2016), www.cms.gov/CCIIO/Resource
s/Regulations-and-Guidance/Downloads/final-transition-bulletin-2-
29-16.pdf.
                                 5
                                 B.

     Robert Muise is the co-founder and senior counsel of
AFLC, a nonprofit corporation whose “mission . . . is to fight
for faith and freedom through litigation, education, and public
policy programs.” Muise Decl. ¶¶ 2-4 (internal quotation
marks omitted). Muise receives health insurance through
AFLC’s group health plan, which is issued by Blue Cross. Id.
¶ 6. After passage of the ACA, Blue Cross informed AFLC
that its “current plan [was] changing” and that it would “be
transitioning [AFLC] into a reform-compliant plan.” J.A. 60.
Thus, Blue Cross chose not to continue offering Appellants’
original health insurance plan, even though it could have
continued to do so during the period established by the
Transitional Policy. Appellants allege that when Blue Cross
transitioned to that reform-compliant plan, the monthly
premium AFLC paid for Muise’s health insurance plan
increased from $1,349.96 to $2,121.59 – an increase of 57%
($771.63). See Muise Decl. ¶ 13.

     In a June 2014 rate filing, Blue Cross explained that there
would be a 2.7% rate increase for 2015 “for all small group
products that were offered in 2014,” such as Appellants’ plan.
J.A. 80. They listed four “[s]ignificant drivers of the rate
change,” one of which was “[l]ower than anticipated
improvement of the ACA compliant market level risk pool in
2014 and 2015 due to the market being allowed to extend pre-
ACA . . . plans into 2016.” Id. In other words, Blue Cross
blamed the rate increase, in part, on the ability of individuals
to retain non-ACA-compliant coverage, presumably due to
HHS’s Transitional Policy. In a later, March 2015 rate
filing, 2 Blue Cross reversed course, and noted that there
2
 This filing was not included in the record before the District Court
or before us on appeal, but it is publicly available. See Actuarial
Memorandum, Blue Cross Blue Shield Michigan, BCBSM 2015
                                6
would be a 3.3% decrease for policies issued between July 1,
2015, and December 31, 2015. 2015 Blue Cross Filing 6. It
listed two “[s]ignificant drivers” for the rate change: (1)
“2014 trend results coming in much lower than anticipated”;
and (2) “[s]hifts in market risk assumptions after the
allowance by the government for carriers to extend offerings
of pre-reform plans.” Id. Thus, although Blue Cross
appeared to blame its initial rate increase, in part, on the
consequences of the Transitional Policy, it seemed to also
credit, in part, the Policy with the later rate decrease.

     Appellants filed suit in July 2014, challenging the
Transitional Policy as an “unlawful executive action[]” issued
by “executive fiat.” Compl. ¶¶ 33, 46. They claim that the
Policy caused their health insurance costs to increase. Id.
¶ 49. Additionally, they assert an equal protection challenge,
claiming that Appellees violated the Fifth Amendment by
allowing certain individuals to benefit from the Policy,
thereby exempting them from the individual mandate, but not
providing this exemption to others, including Appellants. Id.
¶ 62.

    The District Court granted Appellees’ motion to dismiss
the case pursuant to Rule 12(b)(1) of the Federal Rules of
Civil procedure, holding that Appellants lacked standing. Am.
Freedom Law Ctr. v. Obama, 106 F. Supp. 3d 104, 113
(D.D.C. 2015). It determined, among other things, that
Appellants had failed to demonstrate that whatever injury they

Small Group Rate Filing (Mar. 23, 2015),
https://filingaccess.serff.com/sfa/home/MI (follow “Begin Search”;
follow “Accept”; enter “BBMI-129573445” in the field labeled
“SERFF Tracking Number”; select “Blue Cross Blue Shield of
Michigan”; select the document titled “Actuarial Memorandum
3Q2015 BCBSMSG 20150330 Final.pdf”) [hereinafter 2015 Blue
Cross Filing].
                              7
alleged to have suffered was caused by HHS’s Transitional
Policy, noting that “health insurance premiums fluctuate for
myriad reasons, ranging from the particular terms of coverage
to various other actuarial factors.” Id. at 109.

                             II.

    The only question in this appeal is whether Appellants
have standing to bring this suit. Because they have failed to
show that the increase in their health care premiums stems
from HHS’s Transitional Policy, Appellants have not
demonstrated that they have standing. We affirm the District
Court’s dismissal pursuant to Rule 12(b)(1).

                             A.

     We review a District Court’s decision regarding standing
de novo. Info. Handling Servs., Inc. v. Def. Automated
Printing Servs., 338 F.3d 1024, 1029 (D.C. Cir. 2003). The
“irreducible constitutional minimum of standing contains
three elements”: (1) injury-in-fact, (2) causation, and (3)
redressability.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560
(1992). Stated differently, “a litigant must demonstrate a
‘personal injury fairly traceable to the [opposing party’s]
allegedly unlawful conduct and likely to be redressed by the
requested relief.’” Ass’n of Flight Attendants-CWA, AFL-CIO
v. U.S. Dep’t of Transp., 564 F.3d 462, 464 (D.C. Cir. 2009)
(quoting Allen v. Wright, 468 U.S. 737, 751 (1984)).

    When “[t]he existence of one or more of the essential
elements of standing ‘depends on the unfettered choices made
by independent actors not before the courts and whose
exercise of broad and legitimate discretion the courts cannot
presume either to control or to predict,’” it becomes
“‘substantially more difficult’ to establish” standing. Lujan,
504 U.S. at 562 (quoting ASARCO Inc. v. Kadish, 490 U.S.
                                8
605, 615 (1989) (opinion of Kennedy, J.); Allen, 468 U.S. at
758); accord Nat’l Wrestling Coaches Ass’n v. Dep’t of
Educ., 366 F.3d 930, 938 (D.C. Cir. 2004). “[M]ere
‘unadorned speculation’ as to the existence of a relationship
between the challenged government action and the third-party
conduct ‘will not suffice to invoke the federal judicial
power.’” Nat’l Wrestling, 366 F.3d at 938 (quoting Simon v.
E. Ky. Welfare Rights Org., 426 U.S. 26, 44 (1976)). “The
greater number of uncertain links in a causal chain, the less
likely it is that the entire chain will hold true.” Fla. Audubon
Soc’y v. Bentsen, 94 F.3d 658, 670 (D.C. Cir. 1996) (en banc).
However, where “the alleged injury flows not directly from
the challenged agency action, but rather from independent
actions of third parties, we have required only a showing that
‘the agency action is at least a substantial factor motivating
the third parties’ actions.’” Tozzi v. HHS, 271 F.3d 301, 308
(D.C. Cir. 2001) (quoting Cmty. for Creative Non-Violence v.
Pierce, 814 F.2d 663, 669 (D.C. Cir. 1987)).

    In considering a motion to dismiss for lack of subject
matter jurisdiction, courts are required to “accept as true all of
the factual allegations contained in the complaint.”
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1 (2002).
Nonetheless, we “may consider materials outside the
pleadings in deciding whether to grant a motion to dismiss for
lack of jurisdiction.” Jerome Stevens Pharm., Inc. v. FDA,
402 F.3d 1249, 1253 (D.C. Cir. 2005).

                               B.

     Accepting, for the sake of argument, that Appellants have
demonstrated that they have suffered a concrete injury in fact,
they have failed to show that HHS’s Transitional Policy
caused that injury. At oral argument, Appellants conceded
that the injury they claim is solely a prospective one; they
                                9
assert that the Transitional Policy will cause them to pay more
for their health insurance in the future. This assumption,
however, is speculative.

     The only evidence Appellants offer to demonstrate that
the Policy caused, or will cause, their alleged injury is Blue
Cross’s 2014 rate increase filing, which included as a reason
for the rate increase the fact that the overall risk pool for
ACA-compliant plans was smaller than Blue Cross had
anticipated. But that statement alone is not enough to show
causation here.

     First, it is unclear whether the rate increase discussed in
Blue Cross’s filing applied to Appellants’ health care plan at
all. The filing stated that Blue Cross’s rates would increase
overall by 2.7%, but makes clear that the increase was an
average across all of Blue Cross’s plans. It notes that the rate
changes discussed in the filing “vary slightly by product and
plan,” J.A. 80, and provides a chart showing that some plans
increased by as much as 3.3%, while others did not increase at
all. See id. at 81. Appellants failed to specify before the
District Court which plan Blue Cross transitioned them to
after it discontinued their old plan, see Am. Freedom Law
Ctr., 106 F. Supp. 3d at 112, and they have provided no
further information on appeal. We are therefore left to guess
whether Appellants’ current plan was one of the plans for
which Blue Cross noted a rate increase in its 2014 filing.

     Second, although it appears that the price of at least some
of Blue Cross’s plans increased at the beginning of 2015, the
price of those same plans appears to have decreased in the
second half of 2015. 3 According to Appellants, “basic

3
 Unlike its June 2014 filing, which showed a price increase in only
certain plans, Blue Cross’s March 2015 filing showed a decrease in
every plan’s price. See 2015 Blue Cross Filing 7.
                               10
economic principles” establish a direct link between the
supposed decrease in the number of individuals in ACA-
compliant risk pools allegedly caused by HHS’s Transitional
Policy and the asserted increase in the price of Appellants’
health insurance plan. Appellant’s Br. 41. But as Blue
Cross’s two rate filings reveal, the effect of various factors,
including the size of risk pools, on health insurance pricing is
far from “basic,” and Appellants have made no concrete
allegations, nor provided any specific evidence, establishing
that the cost of their health insurance plan is likely to increase
in the future, let alone that such an increase will stem from the
Transitional Policy. This is a major missing link in the causal
chain Appellants must establish to demonstrate that HHS’s
Transitional Policy is a “substantial factor motivating”
Appellants’ alleged harm. Tozzi, 271 F.3d at 308 (quoting
Cmty. for Creative Non-Violence, 814 F.2d at 669).

     Moreover, as discussed above, we do not know whether
Appellants’ health insurance plan was one of the plans
affected by the rate increase discussed in Blue Cross’s 2014
filing. Accordingly, even if we did accept that HHS’s
Transitional Policy was a “substantial factor motivating” the
rate increase Blue Cross discusses in that rate filing,
Appellants have not linked that rate increase to their own
alleged injury.

     To circumvent the holes in their causation theory,
Appellants rely principally on our decision in Center for Auto
Safety v. NHTSA, 793 F.2d 1322 (D.C. Cir. 1986). That case
involved the Corporate Average Fuel Economy (“CAFE”)
standards set by the National Highway Traffic Safety
Administration (“NHTSA”), which determine how fuel
efficient an overall fleet of vehicles must be. The Center for
Auto Safety challenged NHTSA’s 1985 CAFE standard,
which allowed light trucks to be 1.5 miles per gallon less fuel
                              11
efficient than its previous standard. See id. at 1323.
Assessing whether the Center had standing to bring its suit,
we considered whether its alleged injury – its members’
inability to buy more fuel-efficient trucks, see id. at 1324 –
was caused by NHTSA’s new CAFE standard. We found “no
difficulty in linking the petitioners’ injury to the challenged
agency action,” id. at 1334, stating that “the agency’s
regulation and the injury are . . . directly linked” because
“NHTSA sets standards for the purpose of making vehicles
more fuel-efficient,” and “petitioners, in turn, complain of
less fuel-efficient vehicles.” Id. We explained that “[i]f
setting a higher standard cannot result in vehicles with
increased fuel efficiency, then the entire regulatory scheme is
pointless.” Id. at 1334-35. We also noted that the case
“involves none of the multiple, tenuous links between
challenged conduct and asserted injury that have
characterized claims in which causation has been found
lacking.” Id. at 1335.

     Based on their reading of Center for Auto Safety,
Appellants argue that “increasing health insurance coverage
and the size of purchasing pools” is “pointless” if it does not
bring down health care costs. Appellants’ Br. 36 (emphasis
omitted). Accordingly, they contend that there must be a
direct link between HHS’s Transitional Policy, which
allegedly decreased the size of those purchasing pools, and
the increase in Appellants’ premiums. The instant case,
however, is easily distinguished from Center for Auto Safety.
There, NHTSA set a specific floor auto manufacturers were
required to follow. Thus, if NHTSA determined that a truck
fleet had to meet, on average, a 20-miles-per-gallon fuel
efficiency rating, the average fuel efficiency of a
manufacturer’s truck fleet could not fall below 20 miles per
gallon. There were also no outside factors that could interact
with fuel efficiency standards to alter that floor.
                              12
     The instant case is different. First, although one of
Congress’s goals in drafting the ACA was to decrease the cost
of health care, Nat’l Fed’n of Indep. Bus., 132 S. Ct. at 2580,
the ACA establishes no floor under which health care prices
cannot drop, nor a ceiling above which prices cannot rise.
Second, many factors determine the cost of health care,
including administrative costs, drug costs, and the health and
age of the national populace. See generally BIPARTISAN
POLICY CTR., WHAT IS DRIVING U.S. HEALTH CARE
SPENDING? AMERICA’S UNSUSTAINABLE HEALTH CARE COST
GROWTH (September 2012), http://bipartisanpolicy.org/
library/what-driving-us-health-care-spending-americas-
unsustainable-health-care-cost-growth/ (providing a “basic
overview of the drivers of health care cost growth,” and
noting that such drivers are “complex and overlapping”).
Changes in any of these factors could cause costs to increase
or decrease, and it is difficult to separate out which factors
actually cause any specific price adjustment. Unlike Center
for Auto Safety, where the Center established a direct link
between NHTSA’s CAFE standards and the fuel efficiency of
vehicles, Appellants have made no attempt to separate out any
of these factors. As a result, they have not established a
sufficient link between the size of the risk pools at issue here
and the cost of their health care.

     Accordingly, Appellants have failed to demonstrate that
HHS’s Transitional Policy caused the alleged increase in their
health insurance policy’s price; they lack standing to
challenge the Transitional Policy on that ground.

                              C.

    “The ‘injury in fact’ element of standing in . . . an equal
protection case is the denial of equal treatment resulting from
the imposition of the barrier . . . .” Ne. Fla. Chapter of
                              13
Associated Gen. Contractors of Am. v. City of Jacksonville,
Fla., 508 U.S. 656, 666 (1993). Appellants’ second standing
argument is that HHS discriminated against Muise when it
“unlawfully exempted some ‘applicable individuals’ (and
their plans) . . . from the Individual Mandate,” but not him.
Appellants’ Br. 42-43. Although Appellants evidently intend
to contend that HHS has denied Muise equal treatment with
respect to the Hardship Exemption, Muise cannot demonstrate
injury in that regard: Muise is insured and thus is not subject
to the penalty in the first place (such that the exemption
would be of no benefit to him).

     Appellants also evidently raise an equal protection
challenge with regard to the Transitional Policy. They
contend that because only some individuals were able to
benefit from the Transitional Policy (namely, those
individuals whose plan is issued by a health insurance
company that took advantage of the Policy), HHS applied its
policy discriminatorily. Our precedent directly refutes this
claim.

     In Cutler v. HHS, a plaintiff whose health insurance plan
was cancelled by his health insurance company because the
plan was not ACA-compliant brought suit challenging HHS’s
Transitional Policy. 797 F.3d at 1175. Among other things,
plaintiff challenged the Policy as depriving him of equal
protection of the law. Id. at 1183. We held that he lacked
standing to bring his challenge:

       Cutler lacks Article III standing to pursue his
       equal protection challenge because his alleged
       injury is not fairly traceable to the transitional
       policy, nor would it be redressed by striking
       down that policy. The transitional policy
       applies evenhandedly across the United States,
                              14
       so if Cutler cannot obtain the insurance he
       desires and others can, that is because his own
       insurer cancelled his policy. Cutler’s injury is
       thus the result of the action of his private
       insurer, not the transitional policy, and it is
       purely speculative whether an order in this
       case would alter or affect the non-party
       insurers’ decision.

Id. at 1183-84.

     Cutler is directly on point here. Appellants’ inability to
benefit from the Transitional Policy stems not from the
actions of HHS, which applied the Policy “evenhandedly,”
but from Blue Cross’s decision to discontinue Appellants’
policy. Thus, for the same reasons established in Cutler,
Appellants’ “alleged injury is not fairly traceable to the
transitional policy, nor would it be redressed by striking down
that policy.” Id. at 1183.

    Appellants therefore lack standing to challenge the
Transitional Policy on equal protection grounds.

                             ***

    For the foregoing reasons, we affirm the District Court’s
judgment.

                                                   So ordered.
