                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-6-2002

PA Psychiatric v. Green Spring Health
Precedential or Non-Precedential:

Docket 0-3403




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Filed February 6, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-3403

PENNSYLVANIA PSYCHIATRIC SOCIETY,
       Appellant

v.

GREEN SPRING HEALTH SERVICES, INC.;
MAGELLAN HEALTH SERVICES, INC.;
HIGHMARK, INC.;
KEYSTONE HEALTH PLAN WEST, INC.;
KEYSTONE HEALTH PLAN CENTRAL, INC.;
KEYSTONE HEALTH PLAN EAST, INC.

On Appeal from the United States District Court
for the Western District of Pennsylvania
D.C. Civil Action No. 99-cv-00937
(Honorable Gary L. Lancaster)

Argued October 31, 2000

Before: SCIRICA, NYGAARD and BARRY, Circuit Ju dges

(Filed: February 6, 2002)

       PHILIP H. LEBOWITZ, ESQUIRE
        (ARGUED)
       Pepper Hamilton
       3000 Two Logan Square
       18th and Arch Streets
       Philadelphia, Pennsylvania 19103

        Attorney for Appellant
JOHN R. LEATHERS, ESQUIRE
 (ARGUED)
Buchanan Ingersoll
One Oxford Centre, 20th Floor
301 Grant Street
Pittsburgh, Pennsylvania 15219

 Attorney for Appellees,
Green Spring Health Services, Inc.
and Magellan Health Services, Inc.

GERRI L. SPERLING, ESQUIRE
Springer Bush & Perry
Two Gateway Center, 15th Floor
Pittsburgh, Pennsylvania 15222

 Attorney for Appellees,
Highmark, Inc. and Keystone
Health Plan West, Inc.

CARLETON O. STROUSS, ESQUIRE
Kirkpatrick & Lockhart
Payne-Shoemaker Building
240 North Third Street
Harrisburg, Pennsylvania 17101

 Attorney for Appellee,
Keystone Health Plan Central, Inc.

THOMAS S. BIEMER, ESQUIRE
JOHN J. HIGSON, ESQUIRE
Dilworth Paxson
3200 The Mellon Bank Center
1735 Market Street
Philadelphia, Pennsylvania 19103

 Attorneys for Appellee,
Keystone Health Plan East, Inc.

                        2
       RICHARD D. RASKIN, ESQUIRE
       Sidley Austin Brown & Wood
       10 South Dearborn Street
       Chicago, Illinois 60603

        Attorney for Amici Curiae-
       Appellant, The American Medical
       Association and Pennsylvania
       Medical Society

OPINION OF THE COURT

SCIRICA, Circuit Judge.

The Pennsylvania Psychiatric Society sued several
managed health care organizations on behalf of its member
psychiatrists and their patients. The gravamen of its
complaint was that the managed health care organizations
impaired the quality of health care provided by
psychiatrists to their patients by refusing to authorize
necessary psychiatric treatment, excessively burdening the
reimbursement process and impeding other vital care.

The principal issue on appeal is whether the
Pennsylvania Psychiatric Society has properly pleaded
associational and third-party standing. Finding the Society
would require significant individual participation to
establish its member psychiatrists' claims, the District
Court dismissed its complaint for lack of associational
standing.1 The District Court also found the Society's
member psychiatrists lacked third-party standing to pursue
their patients' claims. As an alternative ground for
dismissal, the District Court held the mandatory arbitration
provision in the psychiatrists' contracts barred the Society
from advancing their members' claims in court.

We believe the District Court's dismissal under Fed. R.
Civ. P. 12(b)(6) was premature. For this reason, we will
vacate and remand for further proceedings.
_________________________________________________________________

1. The District Court adopted the Magistrate Judge's Report and
Recommendation in full.

                                3
I.

The District Court had subject matter jurisdiction under
28 U.S.C. S 1331 because certain claims asserted by the
Pennsylvania Psychiatric Society arose under the Employee
Retirement Income Security Act of 1974 ("ERISA"), 29
U.S.C. SS 1001-1461.2 We have jurisdiction under 28 U.S.C.
S 1291.
_________________________________________________________________

2. The case was removed from state court under ERISA's civil
enforcement provision, S 502(a)(1)(b), which preempts state court
jurisdiction for claims by a plan participant "to recover benefits due to
him under the terms of his plan, to enforce his rights under the terms
of the plan, or to clarify his rights to future benefits under the terms
of
the plan." 29 U.S.C. S 1132(a)(1)(B); Metropolitan Life Ins. Co. v.
Taylor,
481 U.S. 58, 66 (1987); Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 56
(1987).

To discern which claims are preempted, "we embraced a distinction
between claims pertaining to the quality of the medical benefits provided
to a plan participant [that is, not preempted] and claims that the plan
participant was entitled to, but did not receive, a certain quantum of
benefits under his or her plan [that is, preempted]." In re U.S.
Healthcare,
Inc., 193 F.3d 151, 162 (3d Cir. 1999) (citing Dukes v. U.S. Healthcare,
Inc., 57 F.3d 350, 357-58 (3d Cir. 1995)), cert. denied sub nom., U.S.
Healthcare, Inc. v. Bauman, 530 U.S. 1242 (2000). Explaining this
distinction in the Supreme Court's lexicon, we recently restated our
position that "challenges [to] the administration of or eligibility for
benefits [i.e., quantity] . . . fall[ ] within the scope of S 502(a) and
[are]
completely preempted . . . ." Pryzbowski v. U.S. Healthcare, Inc., 245
F.3d 266, 273 (3d Cir. 2001). To this end, claims against HMO policies
that purportedly delay care "fall within the realm of the administration
of benefits." Id.

On behalf of its members' patients, the Pennsylvania Psychiatric
Society alleges the MCOs implemented policies to discourage or prevent
subscribers from using mental health services. UnderS 502(a), "[r]elief
may take the form of accrued benefits due, a declaratory judgment on
entitlement to benefits, or an injunction against a plan administrator's
improper refusal to pay benefits." Dedeaux , 481 U.S. at 53. In this case,
the relief sought involves the administration of benefits, because it
would
change the quantum of mental health services provided. These
allegations fall within the scope of ERISA's civil enforcement provision,
and, therefore, removal was proper as ERISA completely preempts at
least some of the claims alleged by the Pennsylvania Psychiatric Society
on behalf of its members' patients.
4
II.

The Pennsylvania Psychiatric Society, a nonprofit
corporation representing licensed psychiatrists in
Pennsylvania, filed suit on behalf of its member
psychiatrists and their patients who subscribe to managed
health care plans administered by Green Spring Health
Services.

There are several defendants. Green Spring Health
Services, Inc. provides a network of psychiatrists as well as
administrative services for managed health care plans;
Magellan Health Services, Inc. is its corporate parent.
Keystone Health Plan West, Inc., Keystone Health Plan
Central, Inc., and Keystone Health Plan East, Inc. are
health maintenance organizations that contract with Green
Spring Health Services to provide mental health and
substance abuse services to their subscribers. Highmark,
Inc. is the parent company of Keystone Health Plan West
(these managed care organizations collectively are referred
to as "the MCOs"). Green Spring Health Services, Magellan
Health Services and Highmark choose which psychiatrists
to credential to provide these services.

Green Spring Health Services administers the psychiatric
and substance abuse services for the employee benefit
plans provided by the health management organizations.
For this purpose, it enters into contracts with psychiatrists
(the "Provider Agreement") to form a provider network to
service the plans. In particular, the Provider Agreement
assures that Green Spring Health Services will not
undermine the psychiatrists' responsibility to provide
patients with the mental health services they require. For
most disputes arising between credentialed psychiatrists
and Green Spring Health Services, the Provider Agreement
also contains a mandatory arbitration clause that requires
exhaustion of internal review procedures before seeking
binding arbitration.

Alleging the MCOs unfairly profit at the expense of the
psychiatrists and their patients, the Pennsylvania
Psychiatric Society asserts several tort and breach of
contract claims for impeding necessary psychiatric
treatment. The Pennsylvania Psychiatric Society contends

                               5
the MCOs refused to authorize and provide reimbursement
for medically necessary mental health treatment; interfered
with patients' care by permitting non-psychiatrists to make
psychiatric treatment decisions; violated Provider
Agreements by improperly terminating relationships with
certain psychiatrists; and breached the contractual duties
of good faith and fair dealing by failing to timely pay
psychiatrists and by referring patients to inconvenient
treatment locations, thereby depriving some patients access
to treatment.

On the basis of these allegations, the Pennsylvania
Psychiatric Society claims the MCOs tortiously interfered
with the psychiatrists' livelihood as well as the psychiatrist-
patient relationship. In addition, the Society asserts the
MCOs fraudulently misrepresented the quality of care their
plans would provide to subscribers and the benefits
psychiatrists would receive for providing their services.
Finally, on behalf of its members' patients, the Society
alleges the MCOs made false representations to their
subscribers in violation of the Pennsylvania Unfair Trade
Practices and Consumer Protection Law, 73 Pa. Const. Stat.
Ann. S 201-1 et seq. (West 2001).

The complaint sought declaratory relief, injunctive relief,
and damages. The Pennsylvania Psychiatric Society does
not appeal the dismissal of its damages claims.

The suit commenced in state court but was removed to
federal court on grounds that ERISA preempted all or, at
least, some of the Society's claims. Recommending
dismissal, the Magistrate Judge issued a Report and
Recommendation finding the Society lacked standing to
assert the claims of its members and their patients. As an
alternative ground for dismissal, the Magistrate Judge
found the mandatory arbitration clause in the psychiatrists'
contracts foreclosed advancing the claims in court. The
District Court adopted the Magistrate Judge's Report. The
Pennsylvania Psychiatric Society timely appealed.

III.

The Pennsylvania Psychiatric Society's ability to press the
claims of its members and their patients initially hinges on

                               6
whether it meets the constitutional requirements for
associational standing. For its part, the Society seeks only
to pursue claims on behalf of its members and their
patients; it does not allege direct injury to itself.

Our review of a dismissal under Fed. R. Civ. P. 12(b)(6)
for lack of standing is plenary. ACLU-NJ v. Township of
Wall, 246 F.3d 258, 261 (3d Cir. 2001); Gen. Instrument
Corp. v. Nu-Tek Elecs. & Mfg., Inc., 197 F.3d 83, 86 (3d Cir.
1999). On appeal, we must accept as true all material
allegations of the complaint and draw all reasonable
inferences in a light most favorable to plaintiff. Maio v.
Aetna, Inc., 221 F.3d 472, 481-82 (3d Cir. 2000). " `The
issue is not whether a plaintiff will ultimately prevail but
whether the claimant is entitled to offer evidence to support
the claims.' " In re Burlington Coat Factory Sec. Litig., 114
F.3d 1410, 1420 (3d Cir. 1997) (quoting Scheuer v. Rhodes,
416 U.S. 232, 236 (1974)). Therefore, we may affirm the
district court only if we believe that the association would
be entitled to no relief under any set of facts consistent
with its allegations. Allegheny Gen. Hosp. v. Philip Morris,
Inc., 228 F.3d 429, 434-35 (3d Cir. 2000); City of Pittsburgh
v. West Penn Power Co., 147 F.3d 256, 262 n.12 (3d Cir.
1998).

A.

To satisfy the "case or controversy" standing requirement
under Article III, S 2 of the United States Constitution, a
plaintiff must establish that it has suffered a cognizable
injury that is causally related to the alleged conduct of the
defendant and is redressable by judicial action. Friends of
the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. , 528 U.S.
167, 180-81 (2000) (discussing Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992)); The Pitt News v.
Fisher, 215 F.3d 354, 359 (3d Cir. 2000). Associations may
satisfy these elements by asserting claims that arise from
injuries they directly sustain. See, e.g., Babbitt v. United
Farm Workers Nat'l Union, 442 U.S. 289, 299 n.11 (1979).
Absent injury to itself, an association may pursue claims
solely as a representative of its members. See, e.g., New
York State Club Ass'n, Inc. v. City of New York, 487 U.S. 1
(1988); Pub. Interest Research Group of N.J., Inc. v.

                               7
Magnesium Elektron, Inc., 123 F.3d 111 (3d Cir. 1997). By
permitting associational standing, we "recognize[ ] that the
primary reason people join an organization is often to
create an effective vehicle for vindicating interests that they
share with others." Int'l Union, United Auto., Aerospace &
Agric. Implement Workers v. Brock, 477 U.S. 274, 290
(1986); see also Joint Anti-Fascist Refugee Comm. v.
McGrath, 341 U.S. 123, 187 (1951) (Jackson, J.,
concurring) (noting purpose of joining an association "often
is to permit the association . . . to vindicate the interests of
all").

The Supreme Court has enunciated a three-prong test for
associational standing. An association must demonstrate
that "(a) its members would otherwise have standing to sue
in their own right; (b) the interests it seeks to protect are
germane to the organization's purpose; and (c) neither the
claim asserted nor the relief requested requires the
participation of individual members in the lawsuit." Hunt v.
Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343
(1977) (permitting state agency that represented apple
industry to challenge North Carolina statute); see also
Laidlaw Envtl. Servs., 528 U.S. at 181; Hosp. Council v. City
of Pittsburgh, 949 F.2d 83, 86 (3d Cir. 1991). The need for
some individual participation, however, does not necessarily
bar associational standing under this third criterion.
Hospital Council, 949 F.2d at 89-90.

In this case, the MCOs concede the Pennsylvania
Psychiatric Society satisfies Hunt's first and second prongs.
But echoing defendants' objections, the District Court
found the psychiatrists' claims would require a level of
individual participation that precludes associational
standing. As noted, the Society has not appealed the
dismissal of its damages claims. This is noteworthy because
damages claims usually require significant individual
participation, which fatally undercuts a request for
associational standing. On this point, the Supreme Court
has explained that

       "[w]hether an association has standing to invoke the
       court's remedial powers on behalf of its members
       depends in substantial measure on the nature of the
       relief sought. If in a proper case the association seeks

                               8
       a declaration, injunction, or some other form of
       prospective relief, it can reasonably be supposed that
       the remedy, if granted, will inure to the benefit of those
       members of the association actually injured. Indeed, in
       all cases in which we have expressly recognized
       standing in associations to represent their members,
       the relief sought has been of this kind."

Hunt, 432 U.S. at 343 (quoting Warth v. Seldin, 422 U.S.
490, 515 (1975)). Because claims for monetary relief
usually require individual participation, courts have held
associations cannot generally raise these claims on behalf
of their members. E.g., Air Transp. Ass'n v. Reno, 80 F.3d
477, 484-85 (D.C. Cir. 1996) (collecting cases); Sanner v.
Bd. of Trade, 62 F.3d 918, 923 (7th Cir. 1995) (same).
Specifically, the Supreme Court has counseled "that an
association's action for damages running solely to its
members would be barred for want of the association's
standing to sue." United Food & Commercial Workers Union
Local 751 v. Brown Group, Inc., 517 U.S. 544, 546 (1996)
(relying on Hunt, 432 U.S. at 343). Had the Society
continued to press its claims for damages on appeal,
dismissal under Rule 12(b)(6) would be entirely appropriate.

The sole associational standing question remains
whether, taking the allegations as true, the Pennsylvania
Psychiatric Society's requests for declaratory and injunctive
relief will require an inappropriate level of individual
participation.3 We first addressed this question in Hospital
Council of Western Pennsylvania v. City of Pittsburgh, where
an association alleged that certain city and counties
threatened to discriminate against nonprofit hospitals on
taxation, zoning, and contract matters if the hospitals
_________________________________________________________________

3. Individual participation by an association's membership may be
unnecessary when the relief sought is prospective (i.e., an injunction or
declaratory judgment). See Brock, 477 U.S. at 287-88; Ark. Med. Soc'y,
Inc. v. Reynolds, 6 F.3d 519, 528 (8th Cir. 1993); Action Alliance of
Senior
Citizens v. Snider, Civ. A. No. 93-4827, 1994 WL 384990, at *3 (E.D. Pa.
July 18, 1994) ("[P]articipation of individual members is rarely necessary
when injunctive relief rather than individual damages is sought. Hospital
Council, 949 F.2d at 89. This particularly true where . . . a broad based
change in procedure rather than individualized injunctive relief is
sought.").

                               9
refused to make voluntary payments in lieu of taxes. 949
F.2d 83. Interpreting Hunt's third prong through the prism
of earlier Supreme Court jurisprudence, we rejected the
city's argument that some individual participation violated
this requirement.4 Id. at 89. Explaining the circumstances
on which this conclusion rested, we concluded:

       [T]he claims asserted by the Council would require
       some participation by some Council members. This
       case, unlike many prior associational standing cases,
       does not involve a challenge to a statute, regulation, or
       ordinance, but instead involves a challenge to alleged
       practices that would probably have to be proved by
       evidence regarding the manner in which the defendants
       treated individual member hospitals. Adjudication of
       such claims would likely require that member hospitals
       provide discovery, and trial testimony by officers and
       employees of member hospitals might be needed as
       well. Nevertheless, since participation by "each
       [allegedly] injured party" would not be necessary, we
       see no ground for denying associational standing.

Id. at 89-90.

The Court of Appeals for the Seventh Circuit
subsequently adopted our interpretation of Hunt 's third
prong in Retired Chicago Police Association v. City of
Chicago, where the Retired Chicago Police Association sued
the city to bar implementation of increased health care
premiums. 7 F.3d 584 (7th Cir. 1993). In this drawn-out
litigation, the Retired Chicago Police Association
represented city employees who allegedly had been
guaranteed subsidized health coverage. When the city
attempted to raise the coverage price because of escalating
costs, the employees claimed the city reneged on its
promise and sued. Believing the allegations would require
individual participation, the district court concluded the
association lacked standing. Id. at 600-01. Relying on
Hospital Council, the court of appeals reversed and
remanded, holding the association could attempt to
_________________________________________________________________

4. In its brief, Keystone suggests reasons why individual participation
would be required.

                               10
establish its allegations with limited membership
participation.5 Id. at 602-03.

The MCOs argue the medical coverage decisions on
psychiatric care and substance abuse services, which form
the basis of the organization's allegations, are fact-intensive
inquiries. For this reason, they assert the examination of
medical care determinations will demand significant
individual participation. To buttress this point, defendants
note they offer subscribers various health care plans that in
turn provide varying benefits. Consequently, they argue,
demonstrating any single coverage decision violated their
obligations will entail a case-by-case examination of a
patient's condition along with the corresponding available
benefits. In support, defendants rely on Rent Stabilization
Association v. Dinkins, where an association of landowners
alleged rent regulations constituted an unconstitutional
taking of their property. 5 F.3d 591 (2d Cir. 1993). There,
the Court of Appeals for the Second Circuit held that the
extensive individual testimony required to adjudicate the
claims would violate Hunt. Id. at 596; see also Reid v. Dep't
of Commerce, 793 F.2d 277, 279-80 (Fed. Cir. 1986)
(holding union lacked standing to assert back pay claims
for its members because each claim depended on member's
individual circumstances). The court reasoned the claims
foreclosed standing because it

       would have to engage in an ad hoc factual inquiry for
       each landlord who alleges that he has suffered a
       taking. [The court] would have to determine the
       landlord's particular return based on a host of
       individualized financial data, and [the court] would
_________________________________________________________________

5. The Court of Appeals for the Seventh Circuit stated:

       We believe that the approach of the Third Circuit is a sound one.
We
       can discern no indication in Warth, Hunt , or Brock that the
Supreme
       Court intended to limit representational standing to cases in which
       it would not be necessary to take any evidence from individual
       members of an association . . . . Rather, the third prong of Hunt
is
       more plausibly read as dealing with situations in which it is
       necessary to establish "individualized proof," 432 U.S. at 344, for
       litigants not before the court in order to support the cause of
action.

7 F.3d at 601-02.

                               11
       have to investigate the reasons for any failure to obtain
       an adequate return, because the Constitution certainly
       cannot be read to guarantee a profit to an inefficient or
       incompetent landlord.

Rent Stabilization, 5 F.3d at 596. But the Court of Appeals
for the Second Circuit has not rejected associational
standing where only limited individual participation by
some members would be required. See N.Y. State Nat'l Org.
for Women v. Terry, 886 F.2d 1339, 1349 (2d Cir. 1989)
(association warranted standing although evidence from
some individual members necessary); see also Nat'l Ass'n of
Coll. Bookstores, Inc. v. Cambridge Univ. Press, 990 F.
Supp. 245, 249-50 (S.D.N.Y. 1997). We agree that
conferring associational standing would be improper for
claims requiring a fact-intensive-individual inquiry.

The District Court reviewed the Pennsylvania Psychiatric
Society's allegations--overly restrictive treatment
authorizations; care determinations based on criteria
besides medical necessity; creation of improper obstacles to
physician credentialing; imposition of overly-burdensome
administrative requirements; failure to pay psychiatrists for
rendered services; direct interference with psychiatrist-
patient relations--and found each assertion would
necessitate significant individual participation. If this were
true, the organization would not satisfy the associational
standing requirements.6

But the Pennsylvania Psychiatric Society maintains the
heart of its complaint involves systemic policy violations
that will make extensive individual participation
unnecessary. In effect, the Society contends the methods
the MCOs employ for making decisions--e.g., authorizing or
denying mental health services, credentialing physicians,
and reimbursement--represent breaches of contract as well
as tortious conduct. Therefore, insofar as its allegations
concern how the MCOs render these decisions, the
Society's complaint "involve[s] [ ] challenge[s] to alleged
practices," Hospital Council, 949 F.2d at 89, that may be
_________________________________________________________________

6. Likewise, if the Pennsylvania Psychiatric Society continued to press
damages claims on behalf of its members, it would not meet the
requirements for associational standing. See supra p. 8.

                               12
established with sample testimony, which may not involve
specific, factually intensive, individual medical care
determinations. See Virginia Hosp. Ass'n v. Baliles, 868
F.2d 653, 663 (4th Cir. 1989), aff 'd on other grounds sub
nom. Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498 (1990).

If the Pennsylvania Psychiatric Society can establish
these claims with limited individual participation, it would
satisfy the requirements for associational standing. While
we question whether the Society can accomplish this, at
this stage of the proceedings on a motion to dismiss for
lack of standing, we review the sufficiency of the pleadings
and "must accept as true all material allegations of the
complaint and must construe the complaint in favor of the
plaintiff." Trump Hotels & Casino Resorts, Inc. v. Mirage
Resorts Inc., 140 F.3d 478, 483 (3d Cir. 1998) (citing Warth,
422 U.S. at 501). For this reason, we believe the Society's
suit should not be dismissed before it is given the
opportunity to establish the alleged violations without
significant individual participation (as noted, if the damages
claims remained, we would affirm the dismissal under Fed.
R. Civ. P. 12(b)(6)). Moreover, as the organization concedes,
if it cannot adequately demonstrate the MCOs' breaches
with limited individual participation, its suit should be
dismissed. Because this appeal arises on a motion to
dismiss, the Pennsylvania Psychiatric Society should be
allowed to move forward with its claims within the
boundaries of associational standing. Therefore, we
conclude that the District Court erred in dismissing the
matter on this basis under Fed. R. Civ. P. 12(b)(6).
Nevertheless, the District Court is free to revisit this issue.

B.

In addition to advancing the rights of its member
psychiatrists, the Pennsylvania Psychiatric Society seeks to
assert the claims of its members' patients who are also
allegedly injured by defendants' practices. Because the
patients are not members of, or otherwise directly
associated with, the Pennsylvania Psychiatric Society, the
Society does not have associational standing to assert their
claims. Nonetheless, the Society maintains it may bring the

                                13
patients' claims under the doctrine of third-party standing.7
In particular, the Society contends its member psychiatrists
have third-party standing to assert the claims of their
patients, and the Society has standing to bring the claims
of its members, including their third-party claims.
Defendants have challenged both of these steps. Therefore,
we must decide, first, whether the member psychiatrists
have third-party standing to bring the claims of their
patients, and second, whether the Pennsylvania Psychiatric
Society has associational standing to assert these members'
third-party claims.

1.

Apart from the constitutional requirements for standing,8
courts have imposed a set of prudential limitations on the
exercise of federal jurisdiction over third-party claims.
Bennett v. Spear, 520 U.S. 154, 162 (1997) ("[T]he federal
judiciary has also adhered to a set of prudential principles
that bear on the question of standing.") (quotation and
citation omitted); Warth, 422 U.S. at 498; Powell v. Ridge,
189 F.3d 387, 404 (3d Cir. 1999). The restrictions against
third-party standing do not stem from the Article III "case
or controversy" requirement, but rather from prudential
concerns,9 Amato v. Wilentz , 952 F.2d 742, 748 (3d Cir.
_________________________________________________________________

7. Third-party standing is also commonly known as jus tertii standing.
City of Chicago v. Morales, 527 U.S. 41, 56 n.22 (1999); The Pitt News,
215 F.3d at 362 n.6; see also Henry Monaghan, Third Party Standing, 84
Colum. L. Rev. 277, 278 n.6 (1984) (explaining jus tertii standing).
8. Under standing doctrine, a plaintiff must satisfy three constitutional
preconditions: (1) a cognizable injury that is (2) causally connected to
the
alleged conduct and is (3) capable of being redressed by a favorable
judicial decision. Lujan, 504 U.S. at 560-61; see also supra pp. 6-7.
9. The Supreme Court has consistently held that standing to assert
third-party rights is a prudential matter:

       [O]ur decisions have settled that limitations on a litigant's
assertion
       of jus tertii are not constitutionally mandated, but rather stem
from
       a salutary "rule of self-restraint" designed to minimize
unwarranted
       intervention into controversies where the applicable constitutional
       questions are ill-defined and speculative.

Craig v. Boren, 429 U.S. 190, 193-95 (1976); see also Brown Group, 517
U.S. at 557; Allen v. Wright, 468 U.S. 737, 751 (1984); Singleton v.
Wulff,
428 U.S. 106, 123-24 (1976) (plurality opinion); Warth 422 U.S. at 499;
Barrows v. Jackson, 346 U.S. 249, 255, 257 (1953).

                               14
1991), which prevent courts from "deciding questions of
broad social import where no individual rights would be
vindicated and . . . limit access to the federal courts to
those litigants best suited to assert a particular claim."
Gladstone, Realtors v. Vill. of Bellwood, 441 U.S. 91, 99-100
(1979); see also Sec'y of State v. Joseph H. Munson Co., 467
U.S. 947, 955 (1984).

It is a well-established tenet of standing that a"litigant
must assert his or her own legal rights and interests, and
cannot rest a claim to relief on the legal rights or interests
of third parties." Powers v. Ohio, 499 U.S. 400, 410 (1991);
see also Valley Forge Christian Coll. v. Ams. United for
Separation of Church and State, Inc., 454 U.S. 464, 474-75
(1982); Wheeler v. Travelers Ins. Co., 22 F.3d 534, 538 (3d
Cir. 1994). This principle is based on the assumption that
"third parties themselves usually will be the best
proponents of their own rights," Singleton v. Wulff, 428 U.S.
106, 114 (1976) (plurality opinion), which serves to foster
judicial restraint and ensure the clear presentation of
issues. See Munson, 467 U.S. at 955.

Yet the prohibition is not invariable and our
jurisprudence recognizes third-party standing under certain
circumstances.10 Campbell v. Louisiana, 523 U.S. 392, 397-
98 (1998); see also Hodel v. Irving, 481 U.S. 704, 711
(1987) (acknowledging general rule that party must assert
own interests is "subject to exceptions"). In particular, if a
course of conduct "prevents a third-party from entering into
a relationship with the litigant (typically a contractual
relationship), to which relationship the third party has a
_________________________________________________________________

10. For instance, doctors may be able to assert the rights of patients;
lawyers may be able to assert the rights of clients; vendors may be able
to assert the rights of customers; and candidates for public office may be
able to assert the rights of voters. See, e.g. , Caplin & Drysdale,
Chartered
v. United States, 491 U.S. 617 (1989) (holding lawyer could bring Sixth
Amendment lawsuit on behalf of criminal defendant); Singleton, 428 U.S.
106 (conferring standing on physicians on behalf of patients to challenge
a statute that excluded funding for abortions from Medicaid benefits);
Craig, 429 U.S. 190 (allowing vendor to challenge statute that prohibited
males under age of twenty-one from buying beer); Mancuso v. Taft, 476
F.2d 187 (1st Cir. 1973) (permitting candidate for public office to raise
voters' rights).

                               15
legal entitlement," third-party standing may be appropriate.
United States Dep't of Labor v. Triplett, 494 U.S. 715, 720
(1990); see also Munson, 467 U.S. at 954-58 (fundraiser
had third-party standing to challenge statute limiting fees
charitable organizations could pay because law infringed on
organizations' right to hire fundraiser for a higher fee).

The Supreme Court has found that the principles
animating these prudential concerns are not subverted if
the third party is hindered from asserting its own rights
and shares an identity of interests with the plaintiff. See
Craig, 429 U.S. at 193-94; Singleton, 428 U.S. at 114-15;
Eisenstadt v. Baird, 405 U.S. 438, 443-46 (1972). More
specifically, third-party standing requires the satisfaction of
three preconditions: 1) the plaintiff must suffer injury; 2)
the plaintiff and the third party must have a "close
relationship"; and 3) the third party must face some
obstacles that prevent it from pursuing its own claims.
Campbell, 523 U.S. at 397; Powers, 499 U.S. at 411; The
Pitt News, 215 F.3d at 362. It remains for courts to balance
these factors to determine if third-party standing is
warranted. Amato, 952 F.2d at 750.

a.

Although the Pennsylvania Psychiatric Society itself has
not suffered direct injury, it is uncontested that it properly
pleaded that defendants' policies and procedures have
economically injured its member psychiatrists and
undermined their ability to provide quality health care.
Thus, while the Society does not itself stand in an
appropriate relationship to the patients' claims to directly
assert them, its members may have third-party standing to
do so.11 And because plaintiff seeks to establish standing on
_________________________________________________________________

11. The District Court held--and the dissent argues--that the
Pennsylvania Psychiatric Society could not raise these claims because it
did not itself suffer injury. Injury to the Society, however, is not
relevant
to the issue of the psychiatrists' standing to bring the patients' claims.
Because of the Society's posture, that is the initial question to be
resolved. Only after it is determined that the member psychiatrists would
have third-party standing over these claims do we assess whether the
Society can bring its members' third-party claims. It is in the latter
context that injury to appellant itself is a potential requirement, which
we discuss below.

                               16
the basis of its members' standing to bring these claims,
the members are the appropriate focus of inquiry for these
purposes.

b.

We next turn to whether the psychiatrists and their
patients have a sufficiently "close relationship" which will
permit the physicians to effectively advance their patients'
claims. To meet this standard, this relationship must
permit the psychiatrists to operate " `fully, or very nearly, as
effective a proponent' " of their patients' rights as the
patients themselves.12 Powers , 499 U.S. at 413 (quoting
Singleton, 428 U.S. at 115).

The patients' relationships with their psychiatrists fulfills
this requirement. See supra note 12. In Singleton v. Wulff,
the Supreme Court granted physicians third-party standing
on behalf of their patients to challenge a statute prohibiting
Medicaid funding for certain abortions. 428 U.S. 106.
Because of the inherent closeness of the doctor-patient
relationship, the plurality found the physicians could
efficaciously advocate their patients' interests. Id. at 117
(noting "abortion decision is one in which the physician is
intimately involved"). The relationship forged between
psychiatrists and their patients is equally compelling.

Psychiatrists clearly have the kind of relationship with
their patients which lends itself to advancing claims on
their behalf. This intimate relationship and the resulting
mental health treatment ensures psychiatrists can
effectively assert their patients' rights. Because the
Pennsylvania Psychiatric Society alleges the MCOs prevent
patients from receiving necessary mental health services
and psychiatrists from providing them, its member
psychiatrists would be well-suited to litigate these claims
for both parties, as their interests are clearly aligned. See
_________________________________________________________________

12. Courts have generally recognized physicians' authority to pursue the
claims of their patients. Am. Coll. of Obstetricians & Gynecologists v.
Thornburgh, 737 F.2d 283, 290 & n.6 (3d Cir. 1984) (collecting cases
where physicians allowed to assert patients' claims); see also Planned
Parenthood v. Farmer, 220 F.3d 127, 147 & n.10 (3d Cir. 2000).

                                17
Amato, 952 F.2d at 751 (noting doctor-patient relationship
provides strong likelihood of effective advocacy by a
physician on behalf of his patients). Accordingly, we believe
the psychiatrist-patient relationship would satisfy the
second criterion for third-party standing.13

c.

Finally, we examine whether the mental health patients
face obstacles to pursuing litigation themselves. This
criterion does not require an absolute bar from suit, but
"some hindrance to the third party's ability to protect his or
her own interests," Powers, 499 U.S. at 411. In other
words, a party need not face insurmountable hurdles to
warrant third-party standing.14Id. at 415 (holding excluded
juror's limited incentive to bring discrimination suit
satisfied obstacle requirement for criminal defendant to
merit third-party standing); Singleton, 428 U.S. at 117
(recognizing lawsuit's invasion of patient's privacy and
"imminent mootness" of pregnancy sufficiently impeded
patient from bringing suit herself). The District Court found
the patients' mental health problems did not significantly
hinder them from suing. We disagree.

The stigma associated with receiving mental health
services presents a considerable deterrent to litigation. Cf.
Parham v. J.R., 442 U.S. 584, 622 (1979) (Stewart, J.,
concurring) ("There can be no doubt that commitment to a
mental institution results in massive curtailment of liberty.
In addition to the physical confinement involved, a person's
liberty is also substantially affected by the stigma attached
to treatment in a mental hospital.") (quotations and
_________________________________________________________________

13. The importance of the psychiatrist-patient relationship has been
recognized in other settings too. In Jaffee v. Redmond, the Supreme
Court upheld the evidentiary privilege for psychotherapist-patient
communications. 518 U.S. 1, 10-15 (1996).

14. One treatise insists that "cases do not demand an absolute
impossibility of suit in order to fall within the[impediment] exception.
At
the other end of the spectrum, a practical disincentive to sue may
suffice, although a mere disincentive is less persuasive than a concrete
impediment." 15 James Wm. Moore et al., Moore's Federal Practice
S 101.51[3][c].

                               18
citations omitted); Humphreys v. Drug Enforcement Admin.,
96 F.3d 658, 662 (3d Cir. 1996) (noting "psychiatric
patients suffer a stigma in society") (quotation and citation
omitted). For example, the Supreme Court recognized in
Singleton that the obstacles confronted by women in
opposing an abortion statute were not overwhelming. In
fact, the Court acknowledged the suit could have been
brought pseudonymously or as a class. Singleton , 428 U.S.
at 117. The Court still concluded that a woman's desire to
protect her privacy could discourage her from bringing suit
and constituted a sufficient impediment. Id. at 117-18.
These concerns apply with equal, if not greater, force to
mental health patients. See Bd. of Trustees of Univ. of Ala.
v. Garrett, 531 U.S. 356, 375 (2001) ("There can be little
doubt, then, that persons with mental or physical
impairments are confronted with prejudice which can stem
from indifference or insecurity as well as from malicious ill
will.") (Kennedy, J., concurring). Besides the stigmatization
that may blunt mental health patients' incentive to pursue
litigation, their impaired condition may prevent them from
being able to assert their claims. Therefore, we believe the
patients' fear of stigmatization, coupled with their potential
incapacity to pursue legal remedies, operates as a powerful
deterrent to bringing suit.

Because the third-party claims asserted by the
Pennsylvania Psychiatric Society do not implicate any
constitutional rights of the psychiatrists' patients, the
MCOs contend that granting third-party standing is
unwarranted. While successful third-party standing claims
have involved alleged violations of third parties'
constitutional rights, Singleton and its progeny have not
stipulated that constitutional claims are a prerequisite.15 It
is true that the rule against third-party standing"normally
bars litigants from asserting the rights or legal interests of
others in order to obtain relief from injury to themselves."
_________________________________________________________________

15. Simply raising a third party's constitutional claims will not in and
of
itself satisfy the requirements for third-party standing. For instance, a
litigant may not assert a third party's Fourth Amendment rights against
unreasonable search and seizure to prevent the admission of damaging
evidence. E.g., United States v. Payner , 447 U.S. 727 (1980); see also
Monaghan, supra note 7, at 305 n.149.

                               19
Warth, 422 U.S. at 509. Furthermore, the Supreme Court
has noted that courts must consider "the relationship of the
litigant to the person whose rights are being asserted; the
ability of the person to advance his own rights; and the
impact of the litigation on third-party interests." Caplin &
Drysdale, 491 U.S. at 623 n.3. But the Court has not held
that a constitutional claim must also be alleged, see, e.g.,
Powers, 499 U.S. at 410-11, and absent further guidance,
we will not impose this requirement. For these reasons, we
hold the Pennsylvania Psychiatric Society's member
psychiatrists would have third-party standing to assert the
claims of their patients.

2.

The Pennsylvania Psychiatric Society contends it has
standing to bring these third-party claims just as it has
standing to bring its members' other claims under the
doctrine of associational standing. Defendants maintain the
patients' claims are too attenuated from the Society to
permit derivative standing.

We decline to adopt a per se rule barring such derivative
claims. The Supreme Court did not delineate in Hunt which
types of claims associations could bring on behalf of their
members, but rather simply held that "an association has
standing to bring suit on behalf of its members" when the
requisite elements are established. Hunt, 432 U.S. at 343.

The limitations on derivative standing, therefore, are to
be determined by applying the test for associational
standing specified in Hunt. Our holding that the
Pennsylvania Psychiatric Society has alleged facts sufficient
to establish the third-party standing of its members to
bring their patients' claims implies the satisfaction of only
the first requirement of the Hunt test--that "its members
would otherwise have standing" to bring these claims. A
third-party claim must also meet the requirements that
"the interests it seeks to protect are germane to the
organization's purpose" and that "neither the claim asserted
nor the relief requested requires the participation of
individual members in the lawsuit." Id. These factors inform
the analysis whether an association stands in the correct

                               20
relationship to a claim to allow it to assert that claim on
behalf of others.

Other courts of appeals have adopted this approach in
finding standing in similar cases. In Fraternal Order of
Police v. United States, the Court of Appeals for the District
of Columbia granted an organization derivative authority to
assert the third-party claims of its members. 152 F.3d 998,
1002 (D.C. Cir. 1998) ("[T]he presence of[the chief law
enforcement officers] as members gives the Order standing
to make these [third-party] claims as well.").16 The Fraternal
Order of Police sued to contest the constitutionality of
federal legislation that prohibited supplying firearms to
police officers convicted of domestic violence. Id. at 1000-
01. Because a chief law enforcement officer would be liable
for supplying a firearm to a subordinate convicted of
domestic violence and because the failure to supply a
weapon could also violate the subordinate officer's rights,
the court of appeals found the chiefs had third-party
standing to advance the claims of their officers. Id. at 1002.
Since the chiefs were members of the Fraternal Order of
Police, the association had standing to advance the chiefs'
claims as well as the claims of their subordinates. Similar
to this case, none of the members were themselves party to
the suit.17

The Court of Appeals for the Sixth Circuit also granted an
organization derivative authority to enjoin the enforcement
of a statute requiring private schools to administer
proficiency tests in Ohio Association of Independent Schools
v. Goff. 92 F.3d 419, 421-22 (6th Cir. 1996). As parties to
the litigation, the association's member schools had
standing because failure to comply with the statute would
_________________________________________________________________

16. The opinion containing the discussion of standing in Fraternal Order
of Police was reversed on rehearing. Fraternal Order of Police v. United
States, 173 F.3d 898 (D.C. Cir. 1999). In the second opinion, however,
the court stated, "The analysis of standing on this issue is unchanged
from our prior opinion." Id. at 903.

17. Contrary to the dissent, we believe Fraternal Order of Police supports
recognition of the combination of associational standing and third-party
standing, since the standing "bridge" in that case--the chief law
enforcement officers--were not parties to the litigation.

                               21
result in the loss of their school charters. Id. at 422. The
private schools also had third-party standing to assert the
constitutional right of their students' parents to direct their
children's education. Because its member schools could be
injured by the statute, the Ohio Association of Independent
Schools also had standing to assert their claims. Since its
member schools had standing to assert the rights of the
parents, the court held the Ohio Association of Independent
Schools also had standing to sue on behalf of the parents
whose children attended its members' schools. Id. ("The
member schools . . . have standing . . . on behalf of parents
of students who are threatened with the nonreceipt of
diplomas. Consequently, the OAIS itself, as an organization
dedicated exclusively to advancing the interests of the
member schools, has associational standing to challenge
the statutes at issue."). Thus, while some member schools
--the intermediate parties--were parties to the dispute, the
Sixth Circuit's standing analysis did not rely on that fact.
We see a compelling analogy between these cases and the
claims before us, and believe the Pennsylvania Psychiatric
Society may have standing to assert its members' third-
party claims.

The District Court found the Pennsylvania Psychiatric
Society lacked derivative authority to pursue the claims of
its members' patients because it had not suffered direct
injury itself. On this point, defendants contend Goff is inapt
because the Court of Appeals for the Sixth Circuit did not
require that the association suffer injury in fact. See Amato,
952 F.2d at 749. This criticism is misplaced. It is generally
true that third-party standing requires the party who
advances the interests of another party to also suffer
discrete injury. As noted previously, this prudential
requirement sharpens presentation of claims and avoids
litigation of general grievances. But when an association,
which has not sustained direct injury, obtains standing to
pursue the claims of its members, the association may rely
on the injuries sustained by its members to satisfy the
injury-in-fact requirement. Consequently, once an
organization's members establish third-party standing, the
prudential concerns are alleviated if the association also
has authority to assert its members' claims.

                               22
It is a well-recognized anomaly of representational
standing that the individuals who have sustained the
requisite injury to satisfy the constitutional and prudential
standing criteria are not in fact responsible for bringing
suit. So long as the association's members have or will
suffer sufficient injury to merit standing and their members
possess standing to represent the interests of third-parties,
then associations can advance the third-party claims of
their members without suffering injuries themselves. 18 If on
remand the Pennsylvania Psychiatric Society warrants
associational standing to represent its members, we
conclude it also may have derivative authority to raise the
claims of its members' patients.19

IV.

We now consider the arbitration provision in the Provider
Agreement between the MCOs and the psychiatrists. 20 The
_________________________________________________________________

18. In Public Citizen v. FTC, the Court of Appeals for the District of
Columbia held Public Citizen and other organizations had standing to
challenge an FTC regulation exempting certain promotional items from a
statutory requirement that all advertisements for smokeless tobacco
products carry certain health warnings. 869 F.2d 1541 (D.C. Cir. 1989).
The court held the organizations had associational standing to assert the
claims of their members. Id. at 1550. Additionally, the court held that
members who were also parents had standing to advance claims for their
children. The organizations thus had the derivative authority to assert
the claims of their members' children as well. Id.

19. Because the District Court held the Pennsylvania Psychiatric Society
did not have standing to assert the claims of its members' patients, it
found the organization itself did not fall within the "zone of interests"
of
the common law fraud or statutory fraud claims asserted on behalf of
the psychiatrists' patients. Because we reverse and remand the District
Court's judgment on associational and third-party standing, it will have
to reconsider this issue.

20. The Provider Agreement provides in part:

        Section 10.1 Resolution of Disputes. In the event that a dispute
        between Green Spring and Provider arises out of or is related to
this
        Agreement, the parties to the dispute agree to negotiate in good
faith
        to attempt to resolve the dispute. In the event the dispute is not
        resolved within 30 days of the date one party sent written notice
of

                                23
Pennsylvania Psychiatric Society argues that the District
Court erred in holding all its claims were subject to
mandatory arbitration. The Society contends the arbitration
provision should not apply to its member psychiatrists for
several reasons: (1) the arbitration provision is an
unconscionable contract of adhesion; (2) the organization's
broad-based claims are beyond the scope of the arbitration
provision; (3) claims regarding the process of determining
medical necessity fall outside the purview of arbitration and
pursuing these claims through the available internal review
procedures would be futile; and (4) the psychiatrists with
initial credentialing or re-credentialing claims do not have
contracts with the MCOs requiring arbitration.21
_________________________________________________________________

       the dispute to the other party, and if any party wishes to pursue
the
       dispute, it shall be submitted to binding arbitration in accordance
       with the rules of the American Arbitration Association . . . . If
the
       dispute pertains to a matter which is generally administered in
       accordance with Green Spring's procedures involving, for example,
       credentialing or quality assurance, the procedures set forth by
       Green Spring must be fully exhausted by Provider before Provider
       may invoke its right to arbitration under this Section. Provider
       acknowledges that the recommendation and determination of
       whether Health Services are Medically Necessary shall be made in
       accordance with Green Spring's policies and procedures and shall
       not be subject to this Section 10.

The Provider Agreement defines Medically Necessary Health Services as:

       Health Services including professional services and supplies
       rendered by a Provider to identify or treat an illness that has
been
       diagnosed or is suspected, and which are: (a) consistent with (i)
the
       efficient diagnosis and treatment of a condition; and (ii)
standards of
       good medical practice; (b) required for other than convenience; (c)
       the most appropriate supply or level of service; (d) unable to be
       provided in a more cost-effective and efficient manner; and (e)
       unable to be provided at a facility providing a less intensive
level of
       care. When applied to inpatient care, the term means: The needed
       care cannot be safely given on other than an inpatient basis.

21. The District Court believed that these claims had all been settled,
but
the Pennsylvania Psychiatric Society maintains in its brief that these
claims have not been addressed completely. Keystone also argues the
association should be prohibited from asserting claims on behalf of
psychiatrists that Green Spring Health Services has never credentialed

                               24
Because it denied the Society associational and third-
party standing to advance the claims of its members'
patients, the District Court did not did not examine
whether the patients' claims would be subject to mandatory
arbitration. The District Court only reviewed the effect of
the arbitration provision on the credentialed psychiatrists
who are Society members. It strikes us that, assuming the
Society has standing to assert the claims of each party, the
District Court will have to re-examine the scope as well as
the effect of the arbitration provision on all the parties
involved. Because we find the Pennsylvania Psychiatric
Society survives a motion to dismiss for lack of standing,
the District Court must sort through, in the first instance,
the impact of the psychiatrists' arbitration clause on the
alleged claims.

V.

We will reverse and remand the dismissal of the
Pennsylvania Psychiatric Society's complaint for lack of
standing. Depending on the level of individual participation
necessary to demonstrate its claims, the Society may have
standing to press the claims of its member psychiatrists
and their patients. Of course, we express no opinion as to
the merits of any of the claims or defenses.

We will reverse the order of the District Court and
remand for proceedings consistent with this opinion.
_________________________________________________________________

because their claims are not present in the Pennsylvania Psychiatric
Society's Amended Complaint. See Pa. ex. rel. Zimmerman v. PepsiCo,
Inc., 836 F.2d 173, 181 (3d Cir. 1988). In addition, defendants contend
that the Pennsylvania Psychiatric Society has not asserted a single claim
in its complaint on behalf of psychiatrists who have been denied
credentialing by defendants. However, several of the allegations in the
organization's amended complaint could arguably be read as asserting
claims on behalf of this class of psychiatrists. Although the Amended
Complaint is somewhat ambiguous, all these claims may be found woven
throughout the allegations.

                               25
NYGAARD, Circuit Judge, dissenting:

I agree with much of what the majority has said. I part
company, however, with its conclusion that grants PPS a
hybrid-type of third-party derivative standing. PPS argues
that it has standing to litigate, not the interests of its
member-psychiatrists, but rather the issues and interests
of its member-psychiatrists' patients -- who are three steps
removed from PPS. PPS's argument has three premises. Its
first two premises are exceptions to the standing rule: 1)
that PPS has associational standing to litigate on behalf of
its member-psychiatrists; and, 2) that its member-
psychiatrists have third-party standing to litigate on behalf
of their patients. Its third premise is that these exceptions
can be "stacked" to concoct a new exception to the standing
rule. PPS thus concludes that it should have standing to
litigate on behalf if its members' patients.

The first two premises are sound, but I disagree with the
majority on the third. PPS cannot piggy-back two discrete
exceptions, to swallow up the long-standing rule that
litigants must assert their own rights and interests. I
cannot find, nor does PPS cite, any authority for stacking or
piggy-backing these relationships into an attenuated
concatenation of exceptions to the standing rule so as to
confer standing on PPS. I would hold that PPS cannot seek
relief based upon the rights and interests of remote third
parties. I must therefore respectfully dissent on this point.

Central to my conclusion is that PPS's third premise runs
afoul of Amato v. Wilentz, 952 F.2d 742 (3d Cir. 1991),
wherein we discussed the objectives and standards for
third-party standing. Although third-party standing
typically proves to be a nebulous prudential doctrine,
sensitive to the particularities and peculiarities of the
relationship between the parties and their claims, we
distilled a basic test for third-party standing in Amato. Id.
at 748-49. We require that the party seeking standing must
first have suffered an injury in fact. If the party seeking
standing has suffered an injury in fact, the court must then
examine further, considering: a) the intimacy of the
relationship between the parties; b) any impediment the
party might have to advancing its own rights; and c) the
identity of the interests between the parties. Id. at 749.

                               26
Applying the Amato standards, the District Court first
found that PPS did not itself suffer an injury. No one
disputes this fact. I agree with the District Court that
because PPS has not even alleged a concrete injury to itself,
it cannot satisfy Amato's most elementary standard.
Standing should be denied to PPS on this test alone.

The District Court, however, continued and found that
even if PPS had alleged an injury in fact to itself, Amato's
subsequent elements, or balancing tests, would not favor
PPS third-party standing for its members' patients. The
District Court found that the "relationship between PPS and
the patient subscribers is so attenuated as to weigh against
PPS to bring suit on behalf of persons with which it has no
direct relationship." The District Court next found that
"there appears to be no impediment to the patients seeking
to enforce their legal claims themselves" and the patients
face "no affirmative obstacle to sue[ ]." I agree with the
District Court that even had PPS shown an injury-in-fact,
the subsequent balancing test would not confer standing on
PPS. The argument that psychiatric patients may face some
impediment to bringing these claims themselves, because of
the stigma attached to mental illness and psychiatric care,
is mere speculation, and moreover, this factor is
counterbalanced by the remoteness of the relationship
between PPS and its members' patients. The relationship
between PPS and the patients is nothing like the
doctor/patient intimacy that supports that exception to the
standing rule.

Thus the District Court held that PPS should be denied
third-party standing for its member' patients for three
distinct reasons: 1) PPS suffered no injury in fact and
therefore the Court did not need to entertain the secondary
balancing factors set forth in Amato; 2) even if PPS did
merit consideration under the balancing test, the balancing
test would not weigh in favor of granting standing since
PPS's relationship with its members' patients is too
attenuated; and 3) the patients have no substantial
obstacle to bringing their claims independently. I agree with
all three reasons, and with the District Court's conclusion.

PPS argues to us that the District Court "ignored
significant case law recognizing derivative third-party

                               27
standing." Nonsense. None of the cases PPS cites are
directly on point. PPS and its amici cite cases that confer
standing to doctors to litigate on behalf of their patients.
But this does nothing to advance PPS' argument on the
"stacking" issue presented here. PPS cites both American
College of Obstetricans v. Thornburgh, 737 F.2d 283 (3d Cir.
1983) and Ohio Association of Independent Schools v. Goff,
92 F.3d 419 (6th Cir. 1996), to support the notion that "an
association may assert third-party claims that could be
brought by its members." Neither of these cases stand for
such a notion.

In Ohio Association, the association, along with several of
its member schools, sought standing for parents of children
in the schools to challenge the requirement of state
formulated testing in private schools. Ohio Association, 92
F.3d at 421. The Court found that the "OAIS member
schools also have standing to assert the constitutional right
of parents to direct their children's education." Id. at 422
(emphasis added). Thus the Court did not find that the
association had standing to assert parents' interests, but
that individual schools had standing to do so. Thus the
operative distinction between Ohio Association and PPS'
argument is that in Ohio Association both the association
and its individual members jointly brought the suit, but
here, PPS attempts to bring its claims to court without the
participation of any of its members.

American College presents the same problems for PPS. In
American College, the challenge was brought by a team of
an association, doctors, and medical providers. American
College, 737 F.2d at 289. In a footnote the Court stated
that the "district court concluded that plaintiff physicians,
ACOG, and medical providers all had standing to raise their
own interests (or the interests of members) and those of
patients and customers in challenging the Act's
constitutionality. We affirm this general conclusion." Id. at
290 n.6. As in Ohio Association, the standing questions in
American College turned on the doctors actually
participating in the suit. The reason is obvious: The doctors
provide the standing "bridge" between the association and
the patients. All of the support cited in American College
demonstrates the need for physicians to participate in the

                               28
suit to establish standing. Id. (citing City of Akron v. Akron
Ctr. for Reprod. Health, 462 U.S. 416 (1983) (challenge by
abortion clinics and a physician); Planned Parenthood Ass'n
v. Ashcroft, 462 U.S. 476 (1983) (challenge by Planned
Parenthood, two physicians and an abortion clinic); Planned
Parenthood v. Danforth, 428 U.S. 52, 62 (1976) (challenge
by Planned Parenthood and two physicians); Singleton v.
Wulff, 428 U.S. 106 (1976) (challenge by two physicians)).

Other cases demonstrate this need for a caretaker, such
as a parent or advising officer, to be a party to the suit to
provide the bridge between the association and the harmed
individual. See Fraternal Order of Police v. United States,
152 F.3d 998 (D.C. Cir. 1998) (granting standing for an
organization whose members included chief law
enforcement officers based on the chief law enforcement
officer's standing to advance the equal-protection rights of
subordinate officers); Public Citizen v. FTC, 869 F.2d 1541
(D.C. Cir. 1989) (organizations had standing to challenge an
FTC regulation that exempted certain promotional items
from the requirement that advertising for smokeless
tobacco products carry health warnings, since the members
of the organizations included parents of children who might
be injured by the lack of warnings).

In summary, I agree with the manner in which the
District Court applied the Amato standard. I am convinced
that PPS has neither successfully met (nor
circumnavigated, as the case may be) Amato's requirement
that PPS must have itself suffered an injury. Hence I
respectfully dissent and would affirm the District Court.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               29
