Catherine Johnson v. Xavier Becerra, in His Official Capacity As Secretary of Health and Human Services

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 14, 2024 Decided August 9, 2024
No. 23-5128
CATHERINE JOHNSON, ET AL.,
APPELLANTS
v.
XAVIER BECERRA, IN HIS OFFICIAL CAPACITY AS SECRETARY
OF HEALTH AND HUMAN SERVICES,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:22-cv-03024)
Alice Bers argued the cause for appellants. With her on the
briefs was Wey-Wey Kwok.
Steven H. Hazel, Attorney, U.S. Department of Justice,
argued the cause for appellee. With him on the brief were Brian
M. Boynton, Principal Deputy Assistant Attorney General,
Alisa B. Klein, Attorney, Samuel R. Bagenstos, General
Counsel, U.S. Department of Health and Human Services,
Janice L. Hoffman, Associate General Counsel, and Susan
Maxson Lyons, Deputy Associate General Counsel for
Litigation.

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Before: SRINIVASAN, Chief Judge, RAO and PAN, Circuit
Judges.
Opinion for the Court filed by Circuit Judge RAO.
RAO, Circuit Judge: The lead plaintiffs in this case are
Medicare beneficiaries with chronic illnesses who depend on
the services of home health aides. Although these services are
generally covered by Medicare, the plaintiffs allege that
Medicare-enrolled providers have refused to provide them in-
home care or offered fewer services than they were entitled to.
They attribute this problem to the policies and priorities of the
Secretary of Health and Human Services, and they sued to
compel systemwide reforms. Because the plaintiffs lack Article
III standing to bring such claims, we affirm the district court’s
dismissal.
I.
A.
Medicare covers home health aides for homebound
beneficiaries who need assistance with personal and medical
care. 42 U.S.C. §§ 1395k(a)(2)(A), 1395x(m). Home health
aides help patients with bathing, dressing, grooming, and
taking medications, and they are generally employed through
health care providers known as home health agencies
(“HHAs”).
HHAs are generally free to decide whether to serve
Medicare beneficiaries. A beneficiary “may obtain health
services from any [qualifying HHA] … if such
institution … undertakes to provide him such services.” Id.
§ 1395a(a) (emphasis added). To enroll in Medicare and
receive Medicare payments, HHAs must satisfy conditions of
participation, including meeting certain standards of care for
the patients they serve. See id. § 1395bbb(a). HHAs may not

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discriminate against patients based on disability. 29 U.S.C.
§ 794(a); 42 C.F.R. § 489.10(b)(2).
The Secretary administers the home health benefit and
enforces the conditions of participation, including through
regular audits of Medicare-enrolled HHAs. See 42 U.S.C.
§ 1395bbb(b), (c)(2)(A). He must prevent disability
discrimination in the implementation of Medicare and
“administer programs and activities in the most integrated
setting appropriate to the needs of” disabled beneficiaries. 45
C.F.R. § 85.21(a), (d). The Secretary also must collect and
publish data about Medicare-enrolled HHAs. One of those
initiatives is the “Quality of Patient Care Star Rating” system,
which assigns HHAs a star rating based on seven metrics, five
of which focus on patient improvement. These ratings are
published online.
B.
Plaintiffs Catherine Johnson and Cara Bunnell are
Medicare beneficiaries who suffer from multiple sclerosis and
require the services of home health aides.1 Johnson alleges that
her Medicare-enrolled HHA stopped providing her in-home
service in 2021, and she has struggled to find an agency that
would accept her as a patient ever since. Although some
providers accepted her for short periods, they purportedly
offered her fewer services than she was entitled to under
Medicare, forcing Johnson to pay for additional care out of
pocket. Bunnell has faced similar difficulties. Her Medicare-
enrolled HHA stopped providing in-home services in 2022
after a benefits dispute. She now pays out of pocket for these
services.
1 On an appeal from the grant of a motion to dismiss, we accept the
plaintiffs’ well-pleaded factual allegations as true. See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).

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These two plaintiffs are joined by the National Multiple
Sclerosis Society and Team Gleason. Both organizations
advocate for and assist individuals with chronic illnesses. They
contend the patients they serve struggle to find HHAs that will
provide Medicare-covered home health services, and so the
organizations pay for private home health aides for those who
cannot afford it. The plaintiffs sued the Secretary and sought to
represent a class of chronically ill and disabled Medicare
beneficiaries who had similarly been unable to find Medicare-
covered home health services.
The plaintiffs bring two groups of claims. First, they allege
the Secretary is violating the Medicare statute and regulations
by insufficiently enforcing the conditions of participation on
HHAs and unlawfully implementing the home health benefit.
The plaintiffs claim that Medicare-enrolled HHAs flout the
conditions of participation by underserving the chronically ill
and that the Secretary is not doing enough to curb these
violations. Moreover, the plaintiffs maintain that many of the
Secretary’s policies and practices contribute to the shortage of
home health services available to Medicare beneficiaries.
Second, the plaintiffs claim the Secretary is violating the
ban on disability discrimination. Because many HHAs refuse
to accept or adequately care for Medicare patients, some
patients are forced into nursing homes or other institutionalized
care. The plaintiffs insist this violates the mandate to ensure
health care is provided to individuals in the most integrated
setting appropriate to their needs.
Based on these alleged violations, the plaintiffs request
both a declaratory judgment and broad forms of injunctive
relief. They seek to enjoin the Secretary to “[e]nsure that class
members who … qualify for Medicare-covered home health
aide services have reasonable access to the … services
authorized by the Medicare statute and regulations.” The

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proposed injunction also demands stricter enforcement of the
conditions of participation and policy reforms to the
Secretary’s auditing, payment, and quality rating systems.
The district court dismissed the plaintiffs’ complaint for
lack of Article III standing because they “failed to plausibly
allege” that “their requested relief would redress any harm.”
Johnson v. Becerra, 668 F. Supp. 3d 14, 20 (D.D.C. 2023). The
court found that the plaintiffs’ alleged injuries were caused by
private HHAs not before the court and that they failed to
demonstrate it was likely that enjoining the Secretary would
cause the HHAs to change their behavior. Id. at 21. Moreover,
the plaintiffs described their requested relief at such a “high
level of generality” that it was effectively “a generalized
injunction to obey the law.” Id. (cleaned up). Because the court
was “unsure of what Plaintiffs [were] asking it to order the
Secretary to do,” it could not “evaluate whether granting that
relief would” have a meaningful effect on the choices of private
HHAs to accept chronically ill Medicare patients. Id. at 22.
Without sufficient allegations supporting redressability, the
district court concluded the plaintiffs lacked standing.
The plaintiffs timely appealed. We review the district
court’s dismissal for lack of subject matter jurisdiction de novo.
Jibril v. Mayorkas, 101 F.4th 857, 865 (D.C. Cir. 2024).
II.
The plaintiffs seek a sweeping and multi-faceted
injunction directing the Secretary to better enforce the
conditions on Medicare participation and adopt new policies
for administering the home health benefit. The plaintiffs
suggest such an injunction would remedy their alleged
injuries––namely, the denial of Medicare-covered home health
services and the financial injury of having to pay for such
services out of pocket. We assume without deciding that these
are injuries in fact but conclude that the plaintiffs have failed

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to allege redressability. The plaintiffs seek judicial reordering
of the enforcement and policy priorities of the Secretary, but
granting such relief is generally not within the power of the
Article III courts. The plaintiffs’ injuries stem from private
HHAs that have made independent choices not to serve
chronically ill patients. And the plaintiffs have offered only
speculation that the relief they seek from the Secretary will
redress their harms by prompting private health providers to
expand their services. Thus, the plaintiffs have failed to
establish standing to bring this suit.
A.
To maintain an action in federal court, the plaintiffs must
show they have suffered an “injury in fact,” “fairly traceable to
the challenged action of the defendant,” and it must be “likely,
as opposed to merely speculative, that the injury will be
redressed by a favorable [judicial] decision.”2 Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560–61 (1992) (cleaned up). It is
“substantially more difficult” for plaintiffs to establish standing
if they challenge government action (or inaction) in order to
remedy an injury caused by a third party. Id. at 562 (cleaned
up). A federal court generally “cannot redress injury that results
from the independent action of some third party not before the
court.” Murthy v. Missouri, 144 S. Ct. 1972, 1986 (2024)
(cleaned up). “[M]ere unadorned speculation as to the
2 The organizational plaintiffs assert standing based on the resources
they expend helping chronically ill patients obtain home health
services. Like the individual plaintiffs, the organizations’ financial
injury stems from HHAs denying covered home health services to
Medicare beneficiaries, and they rely on the same theories of
causation and redressability. We do not assess the separate
requirements of organizational standing because the organizations
have failed to allege redressability for the same reasons as the
individual plaintiffs.

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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 Coaches Ass’n v.
Dep’t of Educ., 366 F.3d 930, 938 (D.C. Cir. 2004) (cleaned
up).
When plaintiffs sue the government in order to change
third-party behavior, they bear the burden of showing that
“agency action is at least a substantial factor motivating the
third parties’ actions.” Tozzi v. U.S. Dep’t of Health & Human
Servs., 271 F.3d 301, 308 (D.C. Cir. 2001) (cleaned up). And
there must be “little doubt as to … the likelihood of redress.”
Nat’l Wrestling, 366 F.3d at 941. This is a significant barrier—
courts have routinely rejected suits for injunctive relief that are
directed against executive agencies but that seek to change the
behavior of third parties.
In Simon v. Eastern Kentucky Welfare Rights
Organization, for instance, low-income patients sued the IRS
because tax exempt hospitals had chosen not to provide them
care. 426 U.S. 26, 28–29, 32–33 (1976). The plaintiffs argued
that an IRS ruling on the tax exemption encouraged the
hospitals not to provide certain services to the indigent, and so
a judicial order invalidating that ruling would encourage the
provision of those services. Id. at 42. But the hospitals were
“independent” actors with many reasons to deny service to
low-income patients, and so the Supreme Court found it
“speculative” that “the desired exercise of the court’s remedial
powers … would result in the availability … of [hospital]
services.” Id. at 42–43. Similarly, in National Wrestling, we
held the plaintiffs lacked standing to challenge Title IX
guidance documents that allegedly pressured schools to
eliminate men’s wrestling programs. 366 F.3d at 937. We
explained there were other incentives for schools to make the
same choices, and so an allegation that the plaintiffs would
have “‘better odds’ of retaining the[] desired wrestling

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programs” in the absence of the guidance documents was not
enough to show that vacating the guidance would redress the
alleged harm. Id. at 940, 942. At bottom, it is difficult for
plaintiffs to prove “the causation and redressability
requirements” of standing when they “challenge[] only an
Executive Branch decision not to impose costs or penalties
upon some third party.” Branton v. FCC, 993 F.2d 906, 910–
11 (D.C. Cir. 1993).
These well-established principles reflect the separation of
powers concerns at the heart of our standing doctrine. “The
Constitution … assigns to the Executive Branch, and not to the
Judicial Branch, the duty to ‘take Care that the Laws be
faithfully executed.’” Allen v. Wright, 468 U.S. 737, 761
(1984) (quoting U.S. CONST. art. II, § 3). Article III courts are
not “continuing monitors of the wisdom and soundness of
Executive action.” Id. at 760 (cleaned up). Thus, federal courts
lack jurisdiction over “suits challenging, not specifically
identifiable Government violations of law, but the particular
programs agencies establish to carry out their legal
obligations.” Id. at 759. These concerns are especially acute
here, where the plaintiffs have sued the Secretary over his
alleged failure to enforce and administer the laws in a particular
manner.
B.
For the purposes of assessing standing, the requested
injunctive relief can be divided into two categories.
TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2208 (2021)
(“[P]laintiffs must demonstrate standing for … each form of
relief that they seek.”). Plaintiffs seek a directive from the court
instructing the Secretary to: (1) increase enforcement of the
regulations applicable to HHAs; and (2) change the policies
and programs administering home health benefits. The

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plaintiffs have failed to plausibly allege standing to seek either
form of relief.
1.
First, the plaintiffs request an injunction “directing the
Secretary to … [m]eaningfully enforce” the conditions for
HHAs to participate in Medicare. Although the Secretary
regularly audits HHAs for compliance with the applicable
regulations, the plaintiffs want the Secretary to focus more
auditing and enforcement resources on HHAs that provide
inadequate service to the chronically ill and disabled.
Plaintiffs’ challenge to the enforcement policies and
priorities of the Secretary runs into the basic rule that “private
persons … have no judicially cognizable interest in procuring
enforcement of the … laws” against third parties. Sure-Tan,
Inc. v. NLRB, 467 U.S. 883, 897 (1984). The plaintiffs never
specify what constitutes “meaningful enforcement,” but
regardless of whether they want stiffer penalties or more
enforcement actions against particular offenders, they lack
standing to compel the Secretary to take such steps.
The plaintiffs have failed to allege redressability with
respect to their claims for stricter enforcement in part because
they have failed to allege a causal link between enforcement
priorities and their injuries. When a plaintiff challenges
government action in order to redress an injury from a third
party, our court has required “formidable evidence” of
causation. See Nat’l Wrestling, 366 F.3d at 942 (cleaned up).
Yet the plaintiffs put forward no evidence of causation, much
less formidable evidence. They allege only that HHAs have
refused to accept them or offered them insufficient covered
services, and they make the conclusory allegation that this is
the result of the Secretary’s failure to enforce the conditions of
participation. But there is no condition that Medicare-enrolled
HHAs must serve all Medicare beneficiaries. The relevant

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conditions apply only once an HHA has undertaken to provide
service. It is therefore “purely speculative whether the denials
of service specified in the complaint fairly can be traced to” the
Secretary’s enforcement practices. Simon, 426 U.S. at 42–43.
The causation and redressability requirements of standing
are “closely related[,] like two sides of a coin. … If the
challenged conduct is at best an indirect or contributing cause
of the plaintiff’s injury[,] … the plaintiff faces an uphill climb
in pleading and proving redressability.” West v. Lynch, 845
F.3d 1228, 1235–36 (D.C. Cir. 2017) (cleaned up). Plaintiffs
argue their claims are redressable because, if the Secretary
“meaningfully enforce[d]” the conditions of participation,
disabled and chronically ill patients would be more likely to
obtain Medicare-covered home health services. But these
pleadings are insufficient because HHAs are free to choose
whether to accept a patient. See 42 U.S.C. § 1395a(a). The
plaintiffs offer no reason for us to infer that greater
enforcement of the conditions of participation would cause
HHAs already serving Medicare beneficiaries to expand their
services or would result in other HHAs undertaking to serve
Medicare beneficiaries.
There are many economic and practical reasons why an
HHA might not provide services to a chronically ill Medicare
beneficiary. For instance, the complaint recognizes that rates of
in-home care have been steadily declining for the past 20 years.
In both their complaint and at oral argument, the plaintiffs
indicated that private health insurers might pay more than
Medicare. Given the various regulatory and private market
forces at work, we cannot plausibly infer that HHAs would
choose to provide services to these plaintiffs if the Secretary
expanded the scope or vigor of his enforcement efforts. “When
conjecture is necessary, redressability is lacking.” West, 845
F.3d at 1237.

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2.
Second, the plaintiffs request an injunction ordering the
Secretary to devise new policies and strategies for
accomplishing the goals in the Medicare statutes. The plaintiffs
seek a judicial directive to the Secretary to regulate to “[e]nsure
that” qualified beneficiaries “have reasonable access
to … home health aide services” and are not discriminated
against or unnecessarily institutionalized. For example, the
plaintiffs ask the court to order the Secretary to change his
“payment methods and criteria” and reform “quality
measurement and/or rating criteria” to “effectuate reasonable
access to … Medicare-covered aide services.”
Notably, the plaintiffs do not seek to enjoin a particular
unlawful action by the Secretary. They also do not seek to
compel the Secretary to guarantee covered home health
services for particular patients. Nor could they. As already
noted, private HHAs may choose whether to accept a patient.
See 42 U.S.C. § 1395a(a). To remedy the shortage of services,
the plaintiffs instead request a court order instructing the
Secretary to make systemic reforms to his administration of the
home health benefit. But the Supreme Court has always
“rejected claims of standing predicated on the right, possessed
by every citizen, to require that the Government be
administered according to law.” Valley Forge Christian Coll.
v. Ams. United for Separation of Church & State, Inc., 454 U.S.
464, 482–83 (1982) (cleaned up). In a properly brought case,
courts may review the lawfulness of executive action, but the
courts have no constitutional authority to direct executive
agencies in their policymaking functions. Congress conferred
regulatory authority over the home health benefit to the
Secretary, not the Article III courts.
Moreover, the requested relief is woefully underspecified.
Although the plaintiffs claim that the Secretary’s payment

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policies, audits, and rating system contribute to health care
shortages, they never identify what reforms are necessary to fix
the problem. When pressed in the district court, the plaintiffs
asked for “reasonable modifications.” Without more detail, it
is “purely speculative” whether an injunction instructing the
Secretary to better administer the law will cause HHAs to
accept more chronically ill Medicare patients. Simon, 426 U.S.
at 42.
The closest the plaintiffs come to specifying some relief is
proposing the Secretary revise his Star Rating system so that it
does not discourage HHAs from accepting patients with
chronic illnesses. But the plaintiffs fail to connect the ratings to
their injuries. We have no basis to infer that a directive to alter
the rating system would improve the plaintiffs’ access to
covered home health services. Even if different rating criteria
could, in theory, influence HHA behavior, “a quest for ill-
defined ‘better odds’ is not close to what is required to satisfy
the redressability prong of Article III.”3 Nat’l Wrestling, 366
F.3d at 939.
In sum, we cannot infer from the facts here that the
Secretary’s policies cause HHAs to reject or underserve
chronically ill Medicare patients. In the absence of any
plausible causal link, plaintiffs have failed to demonstrate that
their proposed injunction would redress their injuries by
prompting HHAs to provide the services they seek.
3 The plaintiffs also request an injunction requiring the Secretary to
better train and educate Medicare auditors and HHAs on the
requirements of the Medicare statutes. But as with the other forms of
requested relief, the plaintiffs fail to allege how training failures led
to the denial of home health benefits or how training improvements
would redress their injuries.

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C.
Plaintiffs raise several additional arguments, but none
succeeds in establishing the necessary elements of standing.
First, plaintiffs maintain the causal influence of the
Secretary’s policies and the effectiveness of various reforms
are questions of fact that cannot be resolved on a motion to
dismiss. If there is uncertainty about causation or
redressability, they contend, it should be resolved in the
plaintiffs’ favor.
Even at the motion to dismiss stage, however, the plaintiffs
bear “the burden of … adduc[ing] facts showing that [third-
party] choices have been or will be made in such manner as to
produce causation and permit redressability of injury.” Id. at
938 (quoting Lujan, 504 U.S. at 562). The plaintiffs admit that
complex factors contribute to an HHA’s decision not to offer
covered home health services. Even if it is possible that reforms
to payment policies or the Star Rating system would affect an
HHA’s decision to provide care to more Medicare
beneficiaries, “that possibility is sheer speculation” and
depends on unsubstantiated assumptions about how private
HHAs would respond to changes in government policy. See
Crete Carrier Corp. v. EPA, 363 F.3d 490, 494 (D.C. Cir.
2004). While the burden to establish Article III standing is
easier at the pleading stage, the plaintiffs here have failed to
meet even that burden.
Second, the plaintiffs argue they have adequately alleged
redressability because the Secretary has a statutory obligation
to enforce the requirements of the Medicare statutes. That
makes this case different from Simon or its progeny, say the
plaintiffs, because the Secretary has a “formal legal
relationship” with Medicare-enrolled HHAs and an
“affirmative duty” to ensure that HHAs follow the conditions
of participation and the nondiscrimination mandate. In

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assessing whether an injunction against the government would
change third-party behavior in a way that redresses the
plaintiffs’ injuries, we have never exclusively relied on the
formality of the legal relationship between the government and
the third party.4 Rather, the question is whether the plaintiffs
have “allege[d] specific, concrete facts demonstrating
that … [they] personally would benefit in a tangible way from
the court’s intervention.” Warth v. Seldin, 422 U.S. 490, 508
(1975).
Relatedly, the plaintiffs contend that because HHAs are
heavily regulated, the Secretary possesses the coercive power
to redress the plaintiffs’ harms. According to this logic, the
Secretary administers the “comprehensive legal regime under
which HHAs operate,” and so he can purportedly compel or
incentivize the HHAs to make different decisions. The
plaintiffs seem to suggest that the more authority Congress
confers on an agency, the more likely it is a plaintiff would
have standing to order reform to the agency’s administrative
policies.
But the unremarkable fact that an agency has substantial
regulatory and enforcement tools does not bolster the authority
4 Our decision in National Parks Conservation Association v.
Manson, on which the plaintiffs rely, is not to the contrary. 414 F.3d
1 (D.C. Cir. 2005). In Manson, the plaintiffs challenged the
Department of the Interior’s decision to withdraw an environmental
assessment of a proposed power plant. We held the plaintiffs had
standing even though the state permitting agency—which was not a
party to the lawsuit—had to approve the project. We emphasized that
it was substantially likely the withdrawal affected the state’s
decision. Id. at 6–7. Not only was there a “formal legal relationship”
between state requirements for permitting and the federal
assessment, Interior’s “withdrawal of its impact letter was virtually
dispositive of the state permitting decision.” Id. at 6 (emphasis
added).

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of the federal courts to direct the policy priorities of an agency.
Many of our standing cases involve plaintiffs seeking to change
the actions of heavily regulated private parties by enjoining the
Executive Branch. In each of these cases, we have maintained
the importance of demonstrating a substantial likelihood of
redressability. See, e.g., Chamber of Commerce v. EPA, 642
F.3d 192, 201 (D.C. Cir. 2011); Nat’l Wrestling, 366 F.3d at
938; Branton, 993 F.2d at 911. In fact, “[w]hen plaintiffs’
asserted injury stems from the government’s allegedly
unlawful … lack of regulation[] of someone else, the fairly
traceable and redressability prongs of standing analysis require
more exacting scrutiny.” Freedom Republicans, Inc. v. FEC,
13 F.3d 412, 416 (D.C. Cir. 1994) (cleaned up).
Plaintiffs raise novel arguments, but they do not justify
loosening the requirements of standing. Allowing a plaintiff to
demonstrate redressability by pointing to an agency’s
substantial regulatory authority would dramatically expand
Article III standing in a manner inconsistent with the
Constitution and our precedents.
* * *
Suffering from a shortage of home health care services, the
plaintiffs ask this court to order the Secretary to change his
enforcement and other policies. The shortages, however, are a
result of choices made by private home health care agencies.
Because the plaintiffs have failed to demonstrate their injuries
are redressable by their requested injunctive relief, they lack
Article III standing. We therefore affirm the district court’s
dismissal for lack of jurisdiction.
So ordered.

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