Douglas Huron v. Beth F. Cobert, 809 F.3d 1274

Background

Plaintiff Douglas Huron uses a speech-generating device (DynaWrite); his Federal Employee Health Benefits (FEHB) plan (GEHA) excluded such devices and he needed a replacement.
Huron is a member of the United States Society for Augmentative and Alternative Communication; the Society advocates broader coverage of speech-generating devices.
OPM administers the FEHB Program and issues annual “call letters” encouraging (but not requiring) plan sponsors to offer coverage for durable medical equipment, including speech-generating devices.
Several FEHB plans cover speech-generating devices to varying degrees, but GEHA did not; outside FEHB, many federal programs and private plans provide some coverage when medically necessary.
Huron and the Society sued OPM alleging it failed to negotiate or require adequate coverage of speech-generating devices in violation of the Federal Employee Health Benefits Act and the APA; district court dismissed for lack of standing.
On appeal the D.C. Circuit affirmed, holding plaintiffs forfeited their standing arguments by abandoning the financial-injury theory and raising a new procedural-injury theory for the first time on appeal.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Standing — injury-in-fact	Huron suffered monetary injury because GEHA’s noncoverage forced out-of-pocket costs or loss of access	OPM argued Huron’s injury not fairly traceable to OPM and not redressable because he could have chosen another FEHB plan or obtain partial coverage from Medicare	Forfeited: plaintiffs abandoned the financial-injury theory on appeal; district court’s findings on causation and redressability stand
Standing — procedural injury	Huron later argued OPM’s failure to follow statutory negotiation procedures tainted plan choices and caused a procedural and particularized injury	OPM argued procedural-standing theory was not raised below and cannot be considered on appeal	Forfeited: appellate court refused to consider the procedural-standing theory raised first on appeal
Forfeiture/wavier of argument on appeal	Plaintiffs claimed they had consistently argued procedural injury below	OPM and the court noted plaintiffs had disavowed procedural standing in district court briefing and argued traditional injury below	Court held plaintiffs forfeited new theory; appellate courts generally decline to consider issues not raised below
Remedy/redressability	Plaintiffs sought declaratory/injunctive relief directing OPM to require FEHB sponsors to cover devices	OPM argued court order would not redress Huron’s specific coverage with GEHA	Court agreed redressability and causation fail for the previously asserted financial injury; new procedural theory not considered

Key Cases Cited

Lujan v. Defenders of Wildlife, 504 U.S. 555 (standing requires injury-in-fact, causation, and redressability)
Arpaio v. Obama, 797 F.3d 11 (assessing factual allegations on standing review)
Information Handling Servs., Inc. v. Defense Automated Printing Servs., 338 F.3d 1024 (de novo review of standing dismissal)
Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333 (associational standing depends on members’ standing)
Florida Audubon Soc’y v. Bentsen, 94 F.3d 658 (procedural-injury framework)
District of Columbia v. Air Florida, Inc., 750 F.2d 1077 (appellate courts generally don’t consider issues not raised below)
Kawa Orthodontics, LLP v. Secretary, U.S. Dep’t of the Treasury, 773 F.3d 243 (appellate courts should not hypothesize injuries not asserted below)
Williams v. Romarm, SA, 756 F.3d 777 (issues not presented in briefs are forfeited)
Adarand Constructors, Inc. v. Mineta, 534 U.S. 103 (declining to consider belated standing arguments)