Bruce E. Ellison v. AMERICAN BOARD OF ORTHOPAEDIC SURGERY On Appeal from the United States District…

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 20-1776
_____________
BRUCE E. ELLISON,
Appellant
v.
AMERICAN BOARD OF ORTHOPAEDIC SURGERY
________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 2-16-cv-08441)
District Judge: Honorable Kevin McNulty
______________
Argued: April 12, 2021
______________
Before: CHAGARES, JORDAN, and SCIRICA, Circuit
Judges
(Filed: August 30, 2021)
____________

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Andrew L. Schlafly [ARGUED]
939 Old Chester Road
Far Hills, NJ 07931
Counsel for Appellant
Lawrence J. Joseph
1250 Connecticut Avenue, N.W.
Suite 700-1A
Washington, DC 20036
Counsel for Amici National Medical Association, Alan
D. Ullberg, and American Board of Physician
Specialties
Daniel C. Green [ARGUED]
Vedder Price
1633 Broadway
47th Floor
New York, NY 10019
Gregory G. Wrobel
Vedder Price
222 North LaSalle Street
Suite 2600
Chicago, IL 60601
Counsel for Appellee

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Jack R. Bierig
Schiff Hardin
233 South Wacker Drive
Suite 7100
Chicago, IL 60606
Counsel for Amicus American Board of Medical
Specialties
Jason S. Rathod
Migliaccio & Rathod
412 H Street, N.E.
Suite 302
Washington, DC 20002
Counsel for Amicus Open Markets Institute
____________
OPINION OF THE COURT
____________
CHAGARES, Circuit Judge.
Bruce Ellison appeals an order of the District Court
dismissing his second amended complaint against the
American Board of Orthopaedic Surgery (“ABOS”) with
prejudice for failure to state a claim. Ellison alleges that ABOS
violated antitrust law by refusing to let him complete its
certification examination, and that he cannot obtain medical
staff privileges and employment at certain hospitals in northern
New Jersey without ABOS certification. However, Ellison,
who practices medicine in California, has not attempted to
apply for medical staff privileges or taken any concrete steps

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to practice in New Jersey. His assertions that ABOS has
injured him are thus speculative, and he lacks standing to
maintain his claim in federal court. The District Court did not
address standing and instead dismissed Ellison’s complaint on
the merits. But federal courts lack jurisdiction to reach the
merits in the absence of standing, so we will vacate the District
Court’s order and remand with instructions to dismiss the case
without prejudice.
I.
Bruce Ellison is an orthopedic surgeon who practices in
California. He wants to move to northern New Jersey and
practice at Rutgers University Hospital, St. Peter’s University
Hospital, or one of the hospitals in the RWJBarnabas Health
system. These hospitals are members of the American
Hospital Association (“AHA”), and they generally grant
medical staff privileges to physicians with M.D. degrees only
if those physicians have been certified by a member of the
American Board of Medical Specialties (“ABMS”). Ellison
consequently sought certification by ABOS — the ABMS
member board that certifies orthopedic surgeons — around
2012. ABOS only certifies surgeons who successfully
complete its multistep certification examination. Ellison
passed the first step of ABOS’s exam, but ABOS prohibited
him from taking the second step until he first obtained medical
staff privileges at a hospital.
Ellison has yet to apply for staff privileges. He believes
the New Jersey hospitals where he desires to practice will reject
his application, as their bylaws provide that they generally
grant privileges only to physicians who are already board

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certified.1 According to Ellison, submitting an application is
inadvisable because the rejection of staff privileges can
seriously harm a physician’s reputation and results in an
automatic adverse entry in the National Practitioner Data Bank.
Ellison believes he is thus stuck in a Catch-22 where he cannot
obtain hospital medical staff privileges because he lacks ABOS
certification, and he cannot obtain ABOS certification because
he lacks hospital medical staff privileges. So, Ellison has
neither completed ABOS’s certification exam nor obtained
employment at a hospital in New Jersey.
Ellison attributes this situation to anticompetitive
conduct by ABOS. Ellison filed a lawsuit against ABOS in
2016 under state law in New Jersey state court, but ABOS
removed the matter to federal court. Ellison later amended his
complaint to allege that ABOS violated the Sherman Act, 15
U.S.C. § 1. The District Court dismissed Ellison’s initial
complaint without prejudice upon a motion by ABOS, and it
subsequently dismissed the amended complaint without
prejudice after a renewed motion by ABOS. Although ABOS
moved to dismiss each complaint on multiple grounds,
including lack of subject matter or personal jurisdiction, the
District Court avoided the jurisdictional grounds and instead
held in each of its orders of dismissal that Ellison failed to state
a claim for relief.
Ellison subsequently filed his second amended
complaint (the “SAC”), which again pleaded that ABOS
violated section one of the Sherman Act. Ellison based his
1 These hospitals’ bylaws contain an exception for
physicians who complete their residencies shortly before
applying, but Ellison does not qualify.

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antitrust claim on two theories. First, ABOS or ABMS
allegedly reached an illegal agreement with AHA or its New
Jersey members, whereby ABOS only grants certification to
physicians with hospital privileges and AHA hospitals only
grant privileges to physicians with ABMS certifications.
Second, Ellison suggests that ABOS’s hospital privileges
requirement constitutes an illegal tying arrangement. Ellison
contends that ABOS has a monopoly over the certification of
orthopedic surgeons with M.D. degrees in northern New
Jersey, and it exercises its power in that market to require
aspiring orthopedic surgeons to obtain hospital medical staff
privileges. Because hospitals require orthopedic surgeons to
have ABOS certification, the agreement or tie allegedly
secures a steady stream of revenue for ABOS. ABOS’s
conduct allegedly reduces competition in the northern New
Jersey market for certification and the supply of orthopedic
surgeons who can serve patients. Ellison further contends that
ABOS’s requirement is unreasonable because many doctors do
not practice at hospitals, such as those who operate exclusively
at ambulatory surgery centers. He claims that ABOS’s actions
have prevented him from obtaining employment at New Jersey
hospitals and caused him to lose compensation. Ellison
accordingly seeks recovery for his losses and an injunction
ordering ABOS to let him complete its certification exam.
ABOS moved to dismiss the SAC for lack of standing,
lack of personal jurisdiction, improper venue, and failure to
state a claim. The District Court granted ABOS’s motion and
dismissed the SAC with prejudice for failure to state a claim
pursuant to Federal Rule of Civil Procedure 12(b)(6). The
court considered the allegations of an illegal agreement
between ABOS and northern New Jersey hospitals conclusory
and lacking in factual support, opining that they failed to

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address the possibility that hospitals independently require
board certification because it is an indicator of a physician’s
competence. The District Court similarly held that a tying
arrangement was implausible because ABOS does not derive
any direct economic benefit from surgeons’ acquisition of
hospital staff privileges. The court also noted that Ellison was
not forced to purchase an unwanted tied product because he
actively desired both certification and staff privileges. The
District Court again declined to consider whether the
complaint should be dismissed for lack of standing or personal
jurisdiction, reasoning that it was unnecessary in light of its
decision on the merits. The court dismissed the case with
prejudice, holding that further amendment would be futile.
Ellison timely appealed.
II.
We have jurisdiction over the District Court’s final
order of dismissal under 28 U.S.C. § 1291. 2 The parties
dispute whether the District Court had jurisdiction to enter that
order, though. The District Court did not resolve this dispute
2 We exercise plenary review over the grant of a motion
to dismiss. See In re Schering Plough Corp. Intron/Temodar
Consumer Class Action, 678 F.3d 235, 243 (3d Cir. 2012)
(acknowledging that review of dismissal for lack of subject
matter jurisdiction or failure to state a claim is plenary); Shuker
v. Smith & Nephew, PLC, 885 F.3d 760, 780 (3d Cir. 2018)
(noting that review of dismissal for lack of personal
jurisdiction is plenary). In doing so, we accept all well-pleaded
allegations as true and construe them in the light most
favorable to the non-moving party. Reilly v. Ceridian Corp.,
664 F.3d 38, 41 (3d Cir. 2011).

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and instead chose to dismiss the SAC on the merits. This was
error because “a federal court generally may not rule on the
merits of a case without first determining that it has jurisdiction
over the category of claim in suit (subject-matter jurisdiction)
and the parties (personal jurisdiction).” Sinochem Int’l Co. v.
Malay. Int’l Shipping Corp., 549 U.S. 422, 430–31 (2007). We
may resolve the jurisdictional issues in the first instance on
appeal, as we have an obligation to assure ourselves that
jurisdiction exists. See Finkelman v. Nat’l Football League,
810 F.3d 187, 193 (3d Cir. 2016); Storino v. Borough of Point
Pleasant Beach, 322 F.3d 293, 296 (3d Cir. 2003) (noting that
courts must ensure that they and the courts from which the
record came have jurisdiction). We conclude that the District
Court lacked subject matter jurisdiction because Ellison lacked
standing under Article III of the Constitution.
Article III limits the federal courts to adjudication of
“Cases” and “Controversies.” U.S. Const. art. III, § 2, cl. 1.
“Courts enforce the case-or-controversy requirement through
the several justiciability doctrines,” which “include standing,
ripeness, mootness, the political-question doctrine, and the
prohibition on advisory opinions.” Toll Bros., Inc. v. Twp. of
Readington, 555 F.3d 131, 137 (3d Cir. 2009). Standing is
“perhaps the most important of these doctrines.” Allen v.
Wright, 468 U.S. 737, 750 (1984). Standing has three
elements: “[t]he plaintiff must have (1) suffered an injury in
fact, (2) that is fairly traceable to the challenged conduct of the
defendant, and (3) that is likely to be redressed by a favorable
judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540,
1547 (2016). “The plaintiff, as the party invoking federal
jurisdiction, bears the burden of establishing these elements.”
Id.

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Injury in fact is often determinative of standing, and it
is our focus here. See Toll Bros., 555 F.3d at 138; see also
Spokeo, 136 S. Ct. at 1547 (describing injury in fact as the
“[f]irst and foremost” element of standing). The purpose of the
injury-in-fact requirement is “to distinguish a person with a
direct stake in the outcome of a litigation — even though small
— from a person with a mere interest in the problem.” Cottrell
v. Alcon Labs., 874 F.3d 154, 162 (3d Cir. 2017) (quoting
United States v. Students Challenging Regul. Agency Procs.
(SCRAP), 412 U.S. 669, 689 n.14 (1973)). A plaintiff seeking
to establish injury in fact “must show that he or she suffered
‘an invasion of a legally protected interest’ that is ‘concrete and
particularized’ and ‘actual or imminent, not conjectural or
hypothetical.’” Spokeo, 136 S. Ct. at 1548 (quoting Lujan v.
Defs. of Wildlife, 504 U.S. 555, 560 (1992)). A concrete injury
is real rather than abstract, and a particularized injury is one
that affects the plaintiff in a personal and individual way. Id.
Injury is imminent if it is certainly impending; allegations of
merely possible future injury are insufficient. Clapper v.
Amnesty Int’l USA, 568 U.S. 398, 409 (2013). Imminence is
a “somewhat elastic” concept, but it requires that a plaintiff
“demonstrate a realistic danger of sustaining a direct injury.”
N.J. Physicians, Inc. v. President of the United States, 653 F.3d
234, 238 (3d Cir. 2011) (emphasis omitted).
There are two more principles to consider when a
plaintiff such as Ellison alleges that he has been denied a
benefit or opportunity. First, the failure to apply formally for
a benefit or opportunity will not preclude standing if
application would be futile. Carney v. Adams, 141 S. Ct. 493,
503 (2020) (“[O]ur precedents have also said that a plaintiff
need not ‘translat[e]’ his or her ‘desire for a job . . . into a
formal application’ where that application would be merely a

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‘futile gesture.’” (quoting Int’l Bhd. of Teamsters v. United
States, 431 U.S. 324, 365–66 (1977))); see also Sporhase v.
Nebraska ex rel. Douglas, 458 U.S. 941, 944 n.2 (1982);
Namisnak v. Uber Techs., Inc., 971 F.3d 1088, 1092–93 (9th
Cir. 2020). However, simply declaring that applying would be
futile does not necessarily establish standing, either. A
plaintiff who claims that he was deterred from applying for a
benefit by wrongful practices bears the “burden of proving that
he would have applied . . . had it not been for those practices,”
as “[t]he known prospect of [wrongful] rejection shows only
that [individuals] who wanted [benefits] may have been
deterred from applying for them. It does not show which of
the nonapplicants actually wanted such [benefits], or which
possessed the requisite qualifications.” Teamsters, 431 U.S. at
368–69; see also Newark Branch, N.A.A.C.P. v. Town of
Harrison, 907 F.2d 1408, 1415 (3d Cir. 1990) (applying
Teamsters in context of standing). While futile gestures are not
needed to establish standing, allegations of futility alone do not
necessarily suffice to show a concrete, particularized, and
actual or imminent injury.
That leads us to the second principle that applies in
circumstances like Ellison’s. A plaintiff who alleges that he
has been denied a benefit or opportunity for which he did not
actually apply must generally plead enough facts to show that
“he is ‘able and ready’ to apply.” Carney, 141 S. Ct. at 500
(quoting Gratz v. Bollinger, 539 U.S. 244, 262 (2003)). This
requirement lends concrete substance and imminence to an
injury that would otherwise be purely hypothetical. See
Planned Parenthood of Greater Wash. & N. Idaho v. U.S. Dep’t
of Health & Hum. Servs., 946 F.3d 1100, 1108 (9th Cir. 2020)
(“It is a plaintiff’s ability and readiness to bid that ensures an
injury-in-fact is concrete and particular. . . . Entering a bid

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makes the injury actual; deciding not to bid makes the injury
imminent.”).3
Whether a plaintiff is “able and ready” to pursue a
benefit or opportunity turns on the specific facts of the case.
See Carney, 141 S. Ct. at 501. This is not necessarily a high
bar to clear.4 For example, a plaintiff may be able and ready
to apply for a benefit even if he or she has not taken every step
required to apply immediately upon the conclusion of
litigation. See Lac Vieux Desert Band of Lake Superior
Chippewa Indians v. Mich. Gaming Control Bd., 172 F.3d 397,
405–06 (6th Cir. 1999) (noting that a plaintiff need not “be able
and ready to submit a proposal immediately” where remaining
steps would involve “substantial time and expense”). The
Supreme Court has even left unresolved “whether a statement
3 While cases applying the “able and ready” standard
typically involve equal protection claims, the standard is not
limited to that context. The standard’s applicability turns not
on the right that a plaintiff asserts, but on the nature of the
injury that the plaintiff alleges. Lac Du Flambeau Band of
Lake Superior Chippewa Indians v. Norton, 422 F.3d 490,
497–98 (7th Cir. 2005); see also Lujan, 504 U.S. at 576
(“[T]here is absolutely no basis for making the Article III
inquiry turn on the source of the asserted right.”).
4 The plaintiff’s burden to establish standing depends on
the procedural posture of the case, as the elements of standing
need only be supported “with the manner and degree of
evidence required at the successive stages of the litigation.”
Lujan, 504 U.S. at 561. As in Carney, there are many cases
where a plaintiff’s ability and readiness to apply cannot be
definitively determined at the pleading stage.

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of intent alone under [some] circumstances could be enough to
show standing.” Carney, 141 S. Ct. at 502.
But even a statement of intent to take future action must
reflect a concrete intent to do so imminently, rather than
indefinite “‘some day’ intentions.” Lujan, 504 U.S. at 564; see
Carney, 141 S. Ct. at 502 (“Precedent supports the conclusion
that an injury in fact requires an intent that is concrete.”).5 For
example, the Supreme Court held that standing was lacking in
Carney because the plaintiff’s statement that he would apply
for a judgeship “[stood] alone without any actual past injury,
without reference to an anticipated timeframe, without prior
judgeship applications, without prior relevant conversations,
without efforts to determine likely openings, without other
preparations or investigations, and without any other
supporting evidence.” 141 S. Ct. at 501. The Supreme Court’s
list of considerations illustrates that there are a wide variety of
factors that may bear on a plaintiff’s intent to pursue a benefit
in the near future. And as with standing analysis more broadly,
whether a plaintiff is “able and ready” to apply for a benefit is
not reducible to a strict rule. But in most cases, a plaintiff will
need to plead that he or she took some actual steps that
demonstrate a real interest in seeking the alleged benefit. See,
5 As a result, courts often require plaintiffs to show that
they have concrete plans to imminently pursue a desired course
of action, even if that requirement is not phrased in terms of
whether the plaintiffs are “able and ready” to do so. See, e.g.,
MGM Resorts Int’l Global Gaming Dev., LLC v. Malloy, 861
F.3d 40, 47–48 (2d Cir. 2017); Storino, 322 F.3d at 297
(holding that plaintiffs’ proposed injury was conjectural where
they might not apply for a variance “for a lengthy period of
time, possibly even years”).

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e.g., Aaron Priv. Clinic Mgmt. LLC v. Berry, 912 F.3d 1330,
1337 (11th Cir. 2019) (holding injury in fact was not
established where the plaintiff failed to allege that it took any
concrete steps to found a methadone clinic, “such as selecting
a clinic location, securing a lease option, consulting with
relevant government officials, applying for the necessary
permits or certifications, or associating with potential clients”);
Finkelman, 810 F.3d at 195 (holding that the plaintiff failed to
allege injury in fact where he “took no meaningful action” to
pursue the alleged opportunity); Pucket v. Hot Springs Sch.
Dist. No. 23-2, 526 F.3d 1151, 1161 (8th Cir. 2008) (“[I]f a
plaintiff is required to meet a precondition or follow a certain
procedure to engage in an activity or enjoy a benefit and fails
to attempt to do so, that plaintiff lacks standing to sue because
he or she should have at least taken steps to attempt to satisfy
the precondition.”). And in all cases, a plaintiff who is “able
and ready” to apply for a benefit must at least plead enough
facts to show a “direct stake in the outcome of a litigation,”
rather than a “mere interest in the problem.” Cottrell, 874 F.3d
at 162 (quoting SCRAP, 412 U.S. at 689 n.14).
With these principles in mind, we conclude that Ellison
lacks standing. Ellison alleges that ABOS has injured him by
refusing to let him complete his certification exam. This refusal
allegedly prevents him from obtaining medical staff privileges
at the northern New Jersey hospitals where he wants to
practice, which effectively precludes his employment. But
Ellison has neither applied for medical staff privileges nor
alleged that he has taken any specific steps that would
otherwise position him to practice at those hospitals, such as
obtaining a license to practice medicine in New Jersey. He has
thus failed to allege that he is “able and ready” to apply for staff

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privileges, and his injury is conjectural rather than concrete and
imminent.
Ellison argues that he did not need to plead that he took
any steps to practice in New Jersey, as it was a foregone
conclusion that the hospitals he identified would not hire him.
According to Ellison, applying for staff privileges at these
particular hospitals would be futile in light of their certification
requirements. The SAC references multiple hospital bylaws
that allegedly set forth these requirements. Ellison also alleges
that the denial of staff privileges could significantly harm his
reputation, particularly because it would automatically result
in an adverse entry in the National Practitioner Data Bank.
While ABOS contests that the denial of staff privileges would
automatically result in an adverse entry, we have nevertheless
previously observed that “the absence of staff privileges is
devastating to a physician, especially to a specialist such as a
surgeon.” Miller v. Indiana Hosp., 843 F.2d 139, 141 n.2 (3d
Cir. 1988). Although it is unclear exactly how damaging the
rejection of Ellison’s application would be, we will assume
without holding that it would have been futile for Ellison to
apply formally.
However, as noted above, Ellison is not able and ready
to apply for staff privileges merely because it might be futile
to actually do so. It would be futile for a student who has yet
to enter medical school to apply for staff privileges, but we
could not reasonably conclude that the student was thus able
and ready to apply for those privileges. Ellison must therefore
plead something more to indicate that he was positioned to
practice at the hospitals he specified in the near future. But the
SAC does not allege that Ellison took any steps to that effect.
Indeed, it alleges virtually no acts by Ellison apart from taking

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the first part of ABOS’s certification exam. 6 That is not
enough to establish a concrete and imminent injury here,
because ABOS certification is not sufficient proof of readiness
to practice at New Jersey hospitals. As Ellison alleges in the
SAC, “[m]any physicians who obtain ABOS board
certification subsequently do not practice at hospitals, but
operate at surgery centers exclusively.” Appendix (“App.”)
82. And if “[n]early 90% of hospitals” nationwide require
ABOS certification, as the SAC indicates, then taking ABOS’s
certification exam is not particularly probative of readiness to
practice at the hospitals in northern New Jersey that Ellison
identified. App. 73–74. Ellison might just as well choose to
remain in California and practice at a hospital there, or he
might instead choose to practice at surgery centers in New
Jersey (as he has done in California). He might even decide to
practice at a hospital that does not require ABOS certification
after all. Outside of declaring that Ellison would like to
practice at one of three previously identified hospitals or
hospital systems in New Jersey, the SAC provides no
indication that Ellison has anything more than a hypothetical
6 We note an additional concern regarding Ellison’s
allegations that he passed the first part of ABOS’s certification
exam. At oral argument, the parties appeared not to dispute
that Ellison would need to retake this part of the exam due to
the lapse of time since he first took it. This is problematic if
true, as the plaintiff “bears the burden of establishing standing
as of the time he brought this lawsuit and maintaining it
thereafter.” Carney, 141 S. Ct. at 499. While Ellison’s
completion of the first part of ABOS’s exam is not sufficient
on its own to establish standing here, the need to repeat that
step would only underscore that he is not yet able and ready to
practice medicine at hospitals in northern New Jersey.

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“some day” interest in possibly doing so. See, e.g., Saleh v.
Sulka Trading Ltd., 957 F.3d 348, 355 (2d Cir. 2020) (per
curiam) (holding that plaintiff’s presentation of “hypothetical
possibilities, without tangible steps to effectuate those plans”
did not create the concrete dispute necessary to establish
standing in declaratory judgment action); Fair Hous. Council
of Suburban Phila. v. Montgomery Newspapers, 141 F.3d 71,
77–78 (3d Cir. 1998) (holding that plaintiff did not establish
actual or imminent injury where it had “yet to devote any of its
resources to pursuit of” educational measures and “was unable
to say when such measures might be undertaken”).
We cannot foreclose the possibility that a statement of
intent to apply might be enough to establish standing in some
cases. Carney, 141 S. Ct. at 502. Nonetheless, we are
persuaded that this is not one of those cases. The SAC fails to
allege that Ellison took any concrete steps to substantiate his
interest in practicing in New Jersey and, in fact, it readily
suggests multiple steps that Ellison could have taken. For
example, the hospital bylaws that set forth the certification
requirement emphasize that applicants must possess a current
and unrestricted license to practice in New Jersey. But the
SAC does not allege that Ellison secured a New Jersey medical
license, and Ellison conceded at oral argument that he does not
have one. Ellison’s counsel suggested at argument, however,
that licensing is a purely ministerial requirement. Even if so,
licensing is a basic requirement of practicing medicine in New
Jersey, and one that would have helped demonstrate a concrete
intent to do so. Cf. Carroll v. Nakatani, 342 F.3d 934, 942 (9th
Cir. 2003) (holding that plaintiff failed to show injury in fact
where he “failed to formulate even a basic business plan”). The
bylaws list several other similar requirements, and allegations
that Ellison satisfied those requirements would similarly have

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helped demonstrate his ability and readiness to apply for
medical staff privileges.
And in light of the exceptions to the certification
requirement contained in the hospitals’ bylaws, Ellison might
have considered informally asking the hospitals whether they
would conditionally grant him privileges based on his
successful completion of the first step of the certification exam.
See Carney, 141 S. Ct. at 501 (describing “prior relevant
conversations” and “efforts to determine likely openings” as
factors that could bear on ability and readiness to apply for a
position). This is another step that would help render Ellison’s
injury less speculative, and Ellison’s counsel stated at oral
argument that Ellison actually made these informal inquiries.
Unfortunately, Ellison did not actually plead that he did so, and
the other allegations in the SAC do not allow us to reasonably
draw that inference. In the absence of other allegations that
Ellison made real efforts to practice in northern New Jersey,
we cannot conclude that Ellison was able and ready to seek
medical staff privileges and employment at hospitals in that
area. See Whitmore v. Arkansas, 495 U.S. 149, 155–56 (1990)
(“A federal court is powerless to create its own jurisdiction by
embellishing otherwise deficient allegations of standing.”).
Ellison’s alleged injury is thus neither concrete nor imminent
under the circumstances.
* * * * *
Ellison lacks standing to maintain his claim in federal
court, and the SAC must consequently be dismissed pursuant
to Federal Rule of Civil Procedure 12(b)(1). However,
dismissal for lack of standing is generally without prejudice.
We have noted that “[b]ecause the absence of standing leaves

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the court without subject matter jurisdiction to reach a decision
on the merits, dismissals ‘with prejudice’ for lack of standing
are generally improper.” Cottrell, 874 F.3d at 164 n.7
(quoting Korvettes, Inc. v. Brous, 617 F.2d 1021, 1024 (3d Cir.
1980) (per curiam)). Accordingly, we are unable to affirm the
District Court’s order dismissing the SAC with prejudice.
III.
For the foregoing reasons, we will vacate the order of
the District Court and remand with instructions to dismiss the
case without prejudice pursuant to Federal Rule of Civil
Procedure 12(b)(1).

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