783 F.3d 655
7th Cir.2015Background
- The ACA (42 U.S.C. § 18032(d)(3)(D)) limited Members of Congress and congressional staff to health plans created under the ACA or offered through an ACA Exchange, removing FEHBP eligibility for those individuals.
- OPM issued implementing regulations (78 Fed. Reg. 60653-01; 5 C.F.R. § 890.101, § 890.102(c)(9), § 890.501(h)) that (1) adopt the ACA’s definitions of Members and congressional staff, (2) permit affected Members/staff to purchase plans via an "appropriate SHOP" (DC SHOP), and (3) allow pre-tax employer contributions for certain SHOP plans calculated like FEHBP contributions.
- Plaintiffs Sen. Ron Johnson and legislative counsel Brooke Ericson sued under the APA, challenging (a) OPM’s authority to provide pre-tax employer contributions to non-FEHBP/SHOP plans, (b) OPM’s treatment of Congress as eligible for a SHOP despite size limits, and (c) alleged unequal treatment vis-à-vis constituents.
- OPM moved to dismiss for lack of Article III standing; the district court granted dismissal, concluding plaintiffs lacked a cognizable, traceable injury.
- On appeal, the Seventh Circuit affirmed, holding plaintiffs failed to show an injury-in-fact traceable to the specific regulatory provisions they challenge (administrative burden, equal protection, and reputational/electoral harms were insufficient).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to challenge OPM’s allowance of pre-tax employer contributions to SHOP plans | Johnson/Ericson: OPM lacks statutory authority under FEHBA to fund non-FEHBP plans; this unlawful allowance injures them | OPM: Plaintiffs receive, at worst, a benefit; no concrete, traceable injury from the challenged provisions | No standing — plaintiffs failed to show an injury-in-fact traceable to the challenged contribution rule |
| Standing to challenge OPM’s determination that Congress/offices may use a SHOP (DC SHOP) despite SHOP size limits | Plaintiffs: Congress (or federal government) is not a small employer; OPM’s rule unlawfully makes them eligible for SHOP | OPM: Rule implements ACA and CMS guidance; availability of SHOP plans does not produce a cognizable injury | No standing — eligibility for SHOP not shown to cause plaintiffs a concrete, traceable injury |
| Claim that §18032(d)(3)(D) or the Rule violates a statutory right to equal treatment with constituents | Plaintiffs: statute intended to subject Members to ACA like constituents; OPM rule violates a right to equal treatment | OPM: The statute restricts, not confers, rights; no rights-creating language; no enforceable private right | No standing — statute does not create a private right to equal treatment, so plaintiffs cannot base standing on its violation |
| Reputational/electoral injury from being offered allegedly illegal benefits | Johnson: being offered/associated with illegal benefits will harm reputation and electability; receipt would make him complicit | OPM: Benefits are optional; Johnson can decline them; mere availability is too speculative to be an Article III injury | No standing — speculative reputational/electoral harms unsupported by concrete evidence; ability to decline benefits defeats injury claim |
Key Cases Cited
- Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677 (discusses FEHBA/OPM role in federal employee health benefits)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (standing: injury, causation, redressability elements)
- City of Los Angeles v. Lyons, 461 U.S. 95 (injury must be concrete and immediate)
- Valley Forge Christian Coll. v. Am. United for Separation of Church & State, Inc., 454 U.S. 464 (offense at government conduct is not cognizable injury)
- Davis v. FEC, 554 U.S. 724 (standing must be shown for each claim; standing not dispensed in gross)
- Gonzaga Univ. v. Doe, 536 U.S. 273 (analysis for whether a statute creates enforceable rights)
- Warth v. Seldin, 422 U.S. 490 (statutory right required to show injury-in-fact from statute-created rights)
- Heckler v. Mathews, 465 U.S. 728 (non-economic injuries and stigmatic harms may support standing when concrete)
- Ne. Fla. Chapter of Associated Gen. Contractors v. City of Jacksonville, Fla., 508 U.S. 656 (classification that creates a barrier can give standing)
- Boehner v. Anderson, 30 F.3d 156 (D.C. Cir.: congressional plaintiff had standing to challenge pay increase; cited and distinguished)
- Cronson v. Clark, 810 F.2d 662 (7th Cir. holding that public officials cannot premise standing on being forced to take actions they think illegal)
- D'Amico v. Schweiker, 698 F.2d 903 (7th Cir. similar holding regarding lack of standing for officials compelled to act contrary to law)
- Schaffer v. Clinton, 240 F.3d 878 (10th Cir. rejected Boehner’s approach; political harm allegations require concrete evidence)