Huron v. Berry , 12 F. Supp. 3d 46 ( 2013 )


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  •                             UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA
    ____________________________________
    )
    DOUGLAS B. HURON, et al.,                     )
    )
    Plaintiffs,            )
    )
    v.                                     )      Civil Action No. 13-0211 (ABJ)
    )
    JOHN BERRY, et al.,                           )
    )
    Defendants.            )
    )
    MEMORANDUM OPINION
    Plaintiffs Douglas B. Huron (“Huron”) and the United States Society for Augmentative
    and Alternative Communication (“USSAAC”) have brought this action against the Office of
    Personnel Management (“OPM”) and former OPM director John Berry, 1 in his official capacity,
    under the Administrative Procedure Act (“APA”), 
    5 U.S.C. § 706
     (2012). Compl. ¶¶ 9, 13, 17–
    18 [Dkt. # 1]. Plaintiffs challenge defendants’ approval of health benefits plans for federal
    employees that exclude or limit coverage of speech generating devices (“SGDs”), which are
    items of medical equipment that assist communication-impaired individuals with daily
    communication needs. 
    Id. ¶¶ 1, 4
    . Plaintiffs assert that defendants’ acts and omissions regarding
    SGD coverage are arbitrary, capricious, an abuse of discretion, and contrary to law, 
    id. ¶ 71
    , and
    they seek declaratory and injunctive relief from the Court. 
    Id.,
     Prayer for Relief, ¶¶ 1–9.
    Defendants moved to dismiss plaintiffs’ complaint for lack of standing or, in the
    alternative, for failure to state a claim upon which relief may be granted, pursuant to Federal
    1       The Court substitutes current OPM Acting Director Elaine Kaplan for Mr. Berry but
    disregards the plaintiffs’ use of the incorrect name as “not affecting the parties’ substantial
    rights.” Fed. R. Civ. P. 25(d).
    Rule of Civil Procedure 12(b)(6). Defs.’ Mem. in Supp. of Mot. to Dismiss Compl. (“Defs.’
    Mot.”) at 2 [Dkt. # 13]. For the reasons stated below, the Court will grant defendants’ motion to
    dismiss because plaintiffs do not have standing to bring this case.
    BACKGROUND
    I. Statutory Background
    In 1959, Congress enacted the Federal Employee Health Benefits Act (“FEHBA”), 
    5 U.S.C. §§ 8901
    –8914, to provide a subsidized health benefits program for federal employees.
    Federal Employee Health Benefits Act of 1959, Pub. L. No. 86-382, 
    73 Stat. 708
    . Under
    FEHBA, OPM has broad authority to administer the Federal Employee Health Benefits Program
    (“FEHBP”), Bolden v. Blue Cross & Blue Shield Ass’n, 
    848 F.2d 201
    , 203 (D.C. Cir. 1988), and
    “may contract for or approve” various types of health benefits plans offered by private insurance
    carriers. 
    5 U.S.C. §§ 8903
    –8903a. In exchange for premiums paid by the employees and
    government, carriers provide, pay for, or reimburse certain healthcare costs of FEHBP enrollees.
    
    Id.
     § 8901(7); OAO Healthcare Solutions, Inc. v. Nat’l Alliance of Postal & Fed. Emps., 
    394 F. Supp. 2d 16
    , 19 (D.D.C. 2005).
    Each health benefits contract must contain a detailed statement of included benefits, and
    rates must “reasonably and equitably reflect the cost of the benefits provided.”       
    5 U.S.C. § 8902
    (d), (i). Each year, OPM may renegotiate coverage and rates “based on past experience
    and benefit adjustments,” but rate adjustments must be consistent with insurance industry
    practice. 
    Id.
     § 8902(i). During a four-week “open season” each year, employees may transfer
    plans or cancel their FEHBP enrollment. 
    5 U.S.C. § 8905
    (g); 
    5 C.F.R. § 890.301
    (f) (2013).
    2
    II. Factual Background
    USSAAC is “an organization dedicated to supporting the needs and desires of people
    who use” augmentative and alternative communication.           USSAAC’s Vision, USSAAC,
    http://ussaac.org/our-vision.cfm (last visited Dec. 23, 2013). Its members include individuals
    with severe communication impairments, some of whom are enrolled in FEHBP, as well as
    family members, speech-language pathologists, disability educators and advocates, and
    augmentative and alternative communication device manufacturers. Compl. ¶¶ 1, 13. To secure
    and protect the rights of its members, USSAAC advocates “for the broadest scope of SGD
    coverage by all funding programs and sources” and aims to influence public policy related to
    SGD coverage. 
    Id. ¶ 14
    . SGDs are augmentative and alternative communication devices that
    assist communication-impaired individuals by speaking typed messages out loud, and each SGD
    costs approximately $5000 without insurance. See 
    id.
     ¶¶ 9–10, 23; see also 
    id. ¶ 29
     (indicating
    that most SGD users acquire funding from health benefits systems).
    Huron is a member of USSAAC who lives in the District of Columbia and relies on an
    SGD to communicate with family, friends, and colleagues. 
    Id. ¶ 9
    . He obtained his current SGD
    through private insurance but needs a replacement as his current one no longer functions. 
    Id. ¶ 10
    . In early 2009, Huron switched from his private-sector insurance policy to join his wife’s
    FEHBP plan, which is provided by the Government Employees Health Association (“GEHA”).
    
    Id.
     He also receives benefits from Medicare. 
    Id.
     The GEHA plan expressly excludes SGDs
    from coverage, 
    id. ¶ 11
    ; GEHA Benefit Plan, Ex. 2 to Reply Mem. in Supp. of Mot. to Dismiss
    Compl., at 5 [Dkt. # 17-2] (indicating that “[c]omputer devices to assist with communications”
    are not covered), and Medicare will only reimburse Huron for 80% of the cost of a new SGD.
    Pls.’ Mem. of Law in Opp. to Defs.’ Mot. to Dismiss the Compl. (“Pls.’ Opp.”) at 19 n.11 [Dkt.
    3
    # 15]. Pending resolution of this case, and in order to participate in this action, Huron is
    currently borrowing an SGD from SGD manufacturer DynaVox, which he must return at the
    close of litigation. 2 Pls.’ Opp. at 20.
    Although Huron’s GEHA plan excludes SGD coverage, SGD coverage has been
    available through several FEHBP plans since 2009. Compl. ¶¶ 44, 49. Prior to 2009, nationwide
    plan sponsors denied SGD coverage requests using an exclusion that did not mention SGDs
    specifically. 
    Id.
     ¶¶ 37–39. In 2008, OPM directed plan sponsors to specify the extent of SGD
    coverage they would provide moving forward, prompting the first FEHBP plan sponsors to offer
    SGD coverage in 2009. 
    Id. ¶¶ 41, 54
    ; Mar. 11, 2008 FEHB Program Carrier Letter, Ex. A to
    Defs.’ Mot., at 4 [Dkt. # 13-2]. At that time, four nationwide plan sponsors proposed to offer
    SGD coverage of up to $1000, and a fifth sponsor added the same coverage the following year.
    Compl. ¶¶ 41, 43. Since 2009, three local plan sponsors, who offer plans available only to
    District of Columbia residents, have also added SGD coverage. 
    Id. ¶ 48
    .
    As of today, five of ten FEHBP nationwide plan sponsors and three of five FEHBP local
    plan sponsors cover SGDs to some extent. 
    Id. ¶¶ 22
    , 44–45, 49. Of the five nationwide plan
    sponsors with SGD coverage, two offer plans open to all federal workers while three offer plans
    only open to select groups of federal workers. 
    Id. ¶ 45
    . All of these plans limit SGD coverage to
    between $500 and $1250 – limitations that do not apply to other covered items in the durable
    2        Defendants argue that, because Huron currently has a functioning SGD, he has no injury.
    Defs.’ Mem. at 12. The Court, however, will not give dispositive weight to this argument
    because DynaVox has indicated that Huron’s current SGD is on loan only to help him participate
    in this litigation, and to the extent that his access to the SGD might destroy standing, DynaVox
    will recall the SGD. Pls.’ Opp. at 20 n.13.
    4
    medical equipment category. 3 
    Id.
     ¶¶ 45–46, 62. The three local plan sponsors, on the other
    hand, offer SGD coverage equal to other durable medical equipment. 
    Id. ¶ 49
    .
    Outside of FEHBP, all other federal government-sponsored health benefits programs
    cover SGDs when medically necessary, including Medicaid, Medicare, Tricare, and the Veterans
    Administration. 
    Id. ¶¶ 3
    , 31–32. Similarly, SGDs are routinely covered in the private sector,
    including by a majority of insurers that participate in FEHBP. 
    Id. ¶¶ 3, 33, 59, 61, 64
    . Almost
    without exception, plans outside of FEHBP cover SGDs to the same extent as all other covered
    durable medical equipment. 
    Id. ¶¶ 5, 34, 59
    .
    III. Procedural Background
    Plaintiffs filed the one-count complaint in this action on February 18, 2013. Count I
    alleges that defendants’ acts and omissions regarding SGD coverage violate their obligations
    under FEHBA and are arbitrary, capricious, an abuse of discretion, and contrary to law in
    violation of the APA. 
    Id. ¶ 71
    . Specifically, plaintiffs allege that defendants failed to: (1)
    conduct a complete factual investigation in regard to SGD coverage; (2) require plan sponsors to
    justify exclusions and limitations on SGD coverage; (3) negotiate with plan sponsors over SGD
    coverage; (4) ensure that federal employees have the same access to SGDs that is available to
    private sector employees; (5) ensure that federal employees receive the best coverage at the
    lowest cost; and (6) ensure that plan coverage is consistent with changes in medical knowledge
    or standards of practice. 
    Id.
     ¶¶ 50–71.
    3      In plans that offer SGD coverage, SGDs typically fall under one or more categories of
    covered care. Compl. ¶ 30. Medicare covers SGDs as durable medical equipment, for instance,
    while Tricare and the Veterans Administration cover SGDs as prosthetic devices. 
    Id. ¶ 31
    .
    5
    Plaintiffs seek declaratory and injunctive relief, asking the Court to:
    Order Defendants to require all FEHBP plans to provide a factual or
    actuarial basis, with complete citation and calculation, to justify non-
    coverage of SGDs or any limit to SGD coverage; . . . [and]
    Order that all agreements with FEHBP entered into with plan sponsors
    which do not require full SGD coverage be set aside as arbitrary and
    capricious if such agreements are not supported by a reasonable factual
    and actuarial basis.
    
    Id.,
     Prayer for Relief, ¶¶ 5, 9. Plaintiffs also “seek injunctive relief ordering Defendants to direct
    all FEHBP plan sponsors to cover SGDs to the same extent and scope as other covered durable
    medical equipment, unless they produce a factual or actuarial justification to support lesser
    coverage.” 4 
    Id. ¶ 6
    .
    Defendants move to dismiss the complaint for lack of subject-matter jurisdiction under
    Rule 12(b)(1) on the ground that plaintiffs do not have standing to bring these claims. Defs.’
    Mot. at 2. They also move, in the alternative, to dismiss the complaint for failure to state a claim
    under Rule 12(b)(6), arguing that the complaint does not challenge any final agency decision by
    OPM. 
    Id.
    STANDARD OF REVIEW
    Under Rule 12(b)(1), the plaintiff bears the burden of establishing jurisdiction by a
    preponderance of the evidence. See Lujan v. Defenders of Wildlife, 
    504 U.S. 555
    , 561 (1992);
    Shekoyan v. Sibley Int’l Corp., 
    217 F. Supp. 2d 59
    , 63 (D.D.C. 2002). Federal courts are courts
    of limited jurisdiction, and the law presumes that “a cause lies outside this limited jurisdiction.”
    Kokkonen v. Guardian Life Ins. Co. of Am., 
    511 U.S. 375
    , 377 (1994); see also Gen. Motors
    4       Additionally, plaintiffs make several requests not relevant to the Court’s inquiry at this
    time, including requests for the Court to declare defendants’ plan negotiations and approvals
    unlawful and order defendants to conduct investigations and reopen negotiations over SGDs. 
    Id.,
    Prayer for Relief, ¶¶ 1–4, 6–8.
    6
    Corp. v. EPA, 
    363 F.3d 442
    , 448 (D.C. Cir. 2004) (“As a court of limited jurisdiction, we begin,
    and end, with an examination of our jurisdiction.”). “[B]ecause subject-matter jurisdiction is ‘an
    Art[icle] III as well as a statutory requirement . . . no action of the parties can confer subject-
    matter jurisdiction upon a federal court.’” Akinseye v. District of Columbia, 
    339 F.3d 970
    , 971
    (D.C. Cir. 2003), quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 
    456 U.S. 694
    , 702 (1982).
    In evaluating a motion to dismiss under Rule 12(b)(1), the Court must “treat the
    complaint’s factual allegations as true . . . and must grant plaintiff ‘the benefit of all inferences
    that can be derived from the facts alleged.’” Sparrow v. United Air Lines, Inc., 
    216 F.3d 1111
    ,
    1113 (D.C. Cir. 2000), quoting Schuler v. United States, 
    617 F.2d 605
    , 608 (D.C. Cir. 1979)
    (citations omitted); see also Am. Nat’l Ins. Co. v. FDIC, 
    642 F.3d 1137
    , 1139 (D.C. Cir. 2011).
    Nevertheless, the Court need not accept inferences drawn by the plaintiff if those inferences are
    unsupported by facts alleged in the complaint, nor must the Court accept plaintiffs’ legal
    conclusions. Browning v. Clinton, 
    292 F.3d 235
    , 242 (D.C. Cir. 2002).
    When considering a motion to dismiss for lack of jurisdiction, unlike when deciding a
    motion to dismiss under Rule 12(b)(6), the Court “is not limited to the allegations of the
    complaint.” Hohri v. United States, 
    782 F.2d 227
    , 241 (D.C. Cir. 1986), vacated on other
    grounds, 
    482 U.S. 64
     (1987). Rather, “a court may consider such materials outside the pleadings
    as it deems appropriate to resolve the question [of] whether it has jurisdiction to hear the case.”
    Scolaro v. D.C. Bd. of Elections & Ethics, 
    104 F. Supp. 2d 18
    , 22 (D.D.C. 2000), citing Herbert
    v. Nat’l Acad. of Scis., 
    974 F.2d 192
    , 197 (D.C. Cir. 1992); see also Jerome Stevens Pharm., Inc.
    v. FDA, 
    402 F.3d 1249
    , 1253 (D.C. Cir. 2005).
    7
    ANALYSIS
    I. Huron does not have standing to challenge defendants’ FEHBP plan approvals.
    “To state a case or controversy under Article III, a plaintiff must establish standing.”
    Ariz. Christian Sch. Tuition Org. v. Winn, 
    131 S. Ct. 1436
    , 1442 (2011); see also Lujan, 
    504 U.S. at 560
    . Standing is a necessary predicate to any exercise of federal jurisdiction, and if it is
    lacking, then the dispute is not a proper case or controversy under Article III, and federal courts
    have no subject-matter jurisdiction to decide the case. Dominguez v. UAL Corp., 
    666 F.3d 1359
    ,
    1361 (D.C. Cir. 2012).
    To establish constitutional standing, a plaintiff must demonstrate that (1) he has suffered
    an “injury-in-fact”; (2) the injury is “fairly traceable” to the challenged action of the defendant;
    and (3) it is “likely, as opposed to merely speculative, that the injury will be redressed by a
    favorable decision.” Lujan, 
    504 U.S. at
    560–61 (internal quotation marks omitted); see also
    Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 
    528 U.S. 167
    , 180–81 (2000). The party
    invoking federal jurisdiction bears the burden of establishing standing. Lujan, 
    504 U.S. at 561
    .
    When reviewing the standing question, the Court must be “careful not to decide the questions on
    the merits for or against the plaintiff, and must therefore assume that on the merits the plaintiffs
    would be successful in their claims.” In re Navy Chaplaincy, 
    534 F.3d 756
    , 760 (D.C. Cir.
    2008).    Therefore, for the purposes of the standing analysis, the Court will assume that
    defendants’ approval of FEHBP plans excluding or limiting SGD coverage was unlawful.
    Here, the Court finds that Huron suffered an injury-in-fact when he was unable to replace
    his non-functioning SGD through his wife’s GEHA plan, which does not cover SGDs. See Pls.’
    Opp. at 20. The injury-in-fact test requires a plaintiff to allege that he has suffered “an invasion
    of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent,
    8
    not conjectural or hypothetical.” Lujan, 
    504 U.S. at 560
     (internal citations omitted), quoting
    Allen v. Wright, 
    468 U.S. 737
    , 755 (1984). Huron’s injury is concrete, particularized, and actual
    because his current SGD is no longer functioning, and he is unable to obtain a replacement
    without significant financial cost because his current health benefits plan does not cover SGDs
    and Medicare only covers up to 80%. Compl. ¶¶ 10–11; Pls.’ Opp. at 19 n.11. Without an SGD,
    Huron cannot communicate effectively with his family, friends, and colleagues. Id. ¶ 9. His
    current SGD must be returned at the close of the case; Huron, therefore, is experiencing a
    cognizable injury-in-fact, satisfying the first requirement of the standing analysis. See Lujan,
    
    504 U.S. at 560
    , 561 n.1. But Huron does not have standing because he cannot satisfy either the
    causation or redressability prongs.
    A. Huron cannot establish causation.
    “It is well established that [c]ausation, or traceability, examines whether it is substantially
    probable that the challenged acts of the defendant, not of some absent third party, will cause the
    particularized injury of the plaintiff.” Grocery Mfrs. Ass’n v. EPA, 
    693 F.3d 169
    , 176 (D.C. Cir.
    2012) (alteration in original), quoting Fla. Audubon Soc’y v. Bentsen, 
    94 F.3d 658
    , 663 (D.C.
    Cir. 1996) (internal quotation marks omitted); see also Freedom Republicans, Inc. v. FEC, 
    13 F.3d 412
    , 418 (D.C. Cir. 1994) (stating that “fair traceability turns on the causal nexus between
    the agency action and the asserted injury”). Causation cannot exist when the injury alleged is
    self-inflicted. See Grocery Mfrs., 693 F.3d at 177–78; Petro-Chem Processing, Inc. v. EPA, 
    866 F.2d 433
    , 438 (D.C. Cir. 1989). For example, in Petro-Chem, a national trade organization of
    hazardous waste disposal companies challenged Environmental Protection Agency (“EPA”)
    regulations that authorized hazardous waste disposal in geologic repositories. 
    866 F.2d at 434
    .
    According to the organization, these regulations placed members in a “lose-lose” situation: if
    9
    members chose not to use geologic repositories for hazardous waste disposal, they would lose
    potential business opportunities, but if they chose to use geologic repositories, they would face
    potential liability from leaking repositories. 
    Id. at 438
    . Concluding that the organization lacked
    standing, the D.C. Circuit explained that members could avoid potential liability simply by
    choosing not to use geologic repositories. 
    Id.
     Those who voluntarily chose to use geologic
    repositories presumably incurred potential liability in their own economic self-interest, thereby
    inflicting an injury that was “‘so completely due to the [complainant’s] own fault as to break the
    causal chain.’” 
    Id.
     (alteration in original), quoting 13 Charles Alan Wright et al., Federal
    Practice and Procedure § 3531.5 (2d ed. 1984).
    Similarly, in Grocery Manufacturers, the EPA granted partial waivers allowing fuel
    manufacturers to introduce a new type of renewable fuel into the market. 693 F.3d at 173.
    Trade associations with members in the petroleum and food industries challenged EPA’s waiver
    grants, claiming in part that the waivers effectively forced fuel refiners and importers – which
    were obligated to meet renewable fuel requirements set by Congress – to introduce the new fuel
    into commerce. Id. at 172, 176–77. Concluding that the plaintiffs lacked standing, the D.C.
    Circuit explained that the EPA waivers did “not force, require, or even encourage fuel
    manufacturers . . . to introduce the new fuel;” rather, the waivers simply permitted them to do so.
    Id. at 177. If any refiner or importer voluntarily chose to introduce the new fuel, any resulting
    injury would be a “‘self-inflicted harm’ not fairly traceable to the challenged government
    conduct.” Id. Thus, the causation element of standing was missing. Id.
    Here, Huron’s injury – the inability to obtain an SGD through his wife’s GEHA plan – is
    self-inflicted, and that severs the causal link necessary to establish standing. Like the voluntary
    actions in Petro-Chem and Grocery Manufacturers, the Huron family voluntarily chose to enroll
    10
    and stay enrolled in a plan that specifically excludes SGDs from coverage, despite having the
    option to select and transfer to a plan that covers SGDs. When they enrolled in FEHBP in 2009,
    four nationwide and three local plan sponsors offered limited SGD coverage. Compl. ¶¶ 41, 48–
    49. A fifth nationwide plan sponsor added SGD coverage in 2010. Id. ¶¶ 43–45. Two of these
    nationwide plans are open to all federal employees. Id. ¶ 45. So, before bringing this action,
    Huron and his family had three opportunities – during the open seasons of 2010, 2011, and 2012
    – to transfer from their GEHA plan to one of several other FEHBP plans with SGD coverage. 5
    Consequently, just as the EPA’s regulations in Petro-Chem permitted but did not force hazardous
    waste companies to use geologic repositories and just as the EPA’s waivers in Grocery
    Manufacturers permitted but did not force refiners and importers to introduce a new fuel into the
    market, defendants’ health benefits plan approvals permitted but did not force the Huron family
    to choose a plan without SGD coverage. See Grocery Mfrs., 693 F.3d at 177; Petro-Chem, 
    866 F.2d at 438
    .
    It makes no difference that the Huron family’s decision to forgo these SGD coverage
    options was motivated by cost considerations and other family members’ healthcare needs:
    economic considerations that cause an individual to reject a certain option because it is less
    favorable in some ways and more favorable in others does not transform an otherwise voluntary
    decision into a coerced one. See Grocery Mfrs., 693 F.3d at 177 (explaining that, if a fuel
    manufacturer chose to meet its renewable fuel requirements by introducing the contested new
    fuel over another type of fuel due to cost considerations, that choice to incur potential injury
    would be “grounded in economics” and “most certainly not” caused by the challenged EPA
    5      Several health benefits plan sponsors offer more than one plan. Compl. ¶ 22. So, even
    though Huron’s wife is ineligible for a nationwide plan open only to certain employees, Pls.’
    Opp. at 6 n.3, he likely had at least five nationwide and local plans to choose from.
    11
    waivers); Petro-Chem, 
    866 F.2d at 438
     (explaining that hazardous waste disposal companies that
    chose geologic repositories over safer methods did so in their own economic self-interest,
    breaking the causal chain between the threatened injury and EPA’s regulations). The fact
    remains that the Hurons chose – on their own – to forgo coverage options that would have met
    Huron’s SGD coverage needs because the family decided cost considerations and other family
    members’ healthcare needs came first. Consequently, any injury related to Huron’s inability to
    obtain an SGD through his wife’s GEHA plan is self-inflicted and does not satisfy the causation
    requirement. 6 See also Nat’l Family Planning & Reprod. Health Ass’n, Inc. v. Gonzales, 
    468 F.3d 826
    , 831 (D.C. Cir. 2006) (holding that any injury stemming from uncertainty over an
    agency regulation was self-inflicted because the plaintiffs failed to seek clarification from the
    agency itself and therefore “chose[] to remain in the lurch”); Bhd. of Locomotive Eng’rs v.
    Surface Transp. Bd., 
    457 F.3d 24
    , 28 (D.C. Cir. 2006) (concluding that a union’s inability to
    bargain over a railroad transaction was self-inflicted because the union agreed to that limitation
    in its collective bargaining agreement).
    B. Huron cannot establish redressability.
    To satisfy the third requirement for standing, a plaintiff must demonstrate that it is
    “‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable
    6      Viewed in this light, Huron’s situation is distinguishable from previous challenges to
    health benefits plan approvals where courts assumed or recognized standing. For example, in
    Doe v. Devine, individuals receiving psychiatric care under a FEHBP plan challenged OPM’s
    approval of a reduction in mental health benefits. 
    703 F.2d 1319
    , 1320–21 & 1320 n.1 (D.C. Cir.
    1983). Similarly, in National Treasury Employees Union v. Campbell, a federal employees’
    union challenged an approval of a 35.3% rate increase. 
    589 F.2d 669
    , 671 (D.C. Cir. 1978).
    Through no actions of their own, the plaintiffs in Doe had their mental health benefits reduced,
    and the plaintiffs in National Treasury had their insurance rates increased. Doe, 
    703 F.2d at
    1322–23; Nat’l Treasury Emps. Union, 
    589 F.2d at 671
    . That is not the case here. Huron did not
    lose SGD coverage through no action of his own: he lost SGD coverage when he and his family
    knowingly selected a plan that did not cover SGDs.
    12
    decision.’”   Lujan, 
    504 U.S. at 561
    .      “Redressability examines whether the relief sought,
    assuming that the Court chooses to grant it, will likely alleviate the particularized injury alleged
    by the plaintiff.” Fla. Audubon Soc’y, 94 F.3d at 663–64 (footnote omitted). Here, Huron’s
    injury is his inability to obtain an SGD through his current GEHA plan. 7 Pls.’ Opp. at 20. To
    satisfy the redressability standing requirement, then, plaintiffs must demonstrate that a favorable
    ruling from the Court is likely to result in Huron being able to obtain an SGD through his current
    GEHA plan. Plaintiffs, however, do not request any relief specific to Huron’s GEHA plan.
    Instead, they distinguish in their request for relief between current and future FEHBP plans
    generally. Pls.’ Opp. at 12 n.8. For the FEHBP plans currently in effect, plaintiffs ask the Court
    to declare unlawful and set aside OPM’s 2012 approvals of all 2013 plans that do not provide
    SGD coverage equal to other covered durable medical equipment. Id.; see Compl., Prayer for
    Relief, ¶¶ 1–4. For the FEHBP plans that OPM will approve in the future, plaintiffs ask the
    Court to order that defendants require all FEHBP plan sponsors to either (1) offer full SGD
    coverage or SGD coverage equal to other covered durable medical equipment, or (2) justify any
    SGD exclusions and limitations with a factual or actuarial basis. Compl. ¶ 6; id., Prayer for
    Relief, ¶¶ 5, 9.
    7       Plaintiffs identify Huron’s injury-in-fact as “GEHA’s non-coverage” of SGDs. Pls.’
    Opp. at 20. The mere existence of a plan without SGD coverage, however, is not in itself an
    injury. See Nat’l Treasury Emps. Union v. United States, 
    101 F.3d 1423
    , 1428–29 (D.C. Cir.
    1996) (clarifying that the injury in a previous case was not the “mere existence” of an
    unconstitutional veto power but rather the increased “noise, activity, and danger that resulted”
    from that power), citing Metro. Wash. Airports Auth. v. Citizens for the Abatement of Aircraft
    Noise, Inc., 
    501 U.S. 252
     (1991). So, the Court assumes plaintiffs mean to allege that the impact
    of this non-coverage is Huron’s injury-in-fact. See 
    id.
     (stating that “non-coverage of the SGD
    has impacted Mr. Huron in a ‘personal and individual way’”), quoting Lujan, 
    504 U.S. at
    560
    n.1.
    13
    Neither request for relief is likely to redress Huron’s inability to obtain an SGD through
    his current GEHA plan. According to plaintiffs, if the Court sets aside 2012 approvals for 2013
    plans that exclude or limit SGD coverage, “[t]he result of such an order will be that OPM will,
    for the duration of the plan year, require such coverage.” Pls.’ Opp. at 12 n.8. This reasoning is
    flawed. If the Court sets aside all plan approvals, only three FEHBP sponsors’ plans will
    survive: the plans from three local sponsors that offer SGD coverage equal to other durable
    medical equipment. Compl. ¶ 49. Although this would result in all remaining plans providing
    equal SGD coverage, this result would not alleviate Huron’s inability to obtain an SGD through
    his wife’s GEHA plan because that plan would no longer exist. Huron, therefore, would be
    required to obtain SGD coverage through a different FEHBP plan – an option that he has already
    rejected as not meaningful or one that would alleviate his injury. Id. ¶ 12. Consequently,
    Huron’s first request for relief will not redress his identified injury.
    Huron’s second request for prospective relief also fails to satisfy the redressability
    requirement.    If the Court orders defendants to require plan sponsors to either offer SGD
    coverage – in full or to the same extent as other durable medical equipment – or justify their
    decisions not to, then GEHA could continue to exclude SGD coverage as long as it provides a
    factual or actuarial basis for its decision. This would again leave Huron without redress so long
    as GEHA can justify SGD non-coverage.
    Moreover, any argument that such an order would result in GEHA offering SGD
    coverage equal to other durable medical equipment is entirely speculative for several reasons.
    First, the Court cannot order OPM to change its approval standards. When an action is left to an
    agency’s discretion, a court “has no power to specify what the action must be.” Norton v. S.
    Utah Wilderness Alliance, 
    542 U.S. 55
    , 65 (2004). Here, contracting for health benefits plans
    14
    and prescribing standards for these plans is plainly within OPM’s discretion. 
    5 U.S.C. § 8902
    (a),
    (e). Therefore, the Court may not direct OPM to approve only health benefits plans with full
    SGD coverage or coverage equal to other covered durable medical equipment. Second, even if
    OPM changes its standards voluntarily, Huron’s injury may not be redressed because nothing
    prevents GEHA from refusing to continue to contract with FEHBP if SGD coverage is
    mandatory, and nothing prevents GEHA from increasing the cost of its health benefits plan in
    order to provide that coverage. See 
    5 U.S.C. § 8902
    (i) (specifying that the rate of each health
    benefits plan shall reasonably reflect the cost of the benefits provided). Either way, Huron’s
    injury of not being able to obtain SGD coverage at the same cost under his wife’s current plan
    would not be redressed. Huron therefore does not have standing in this case.
    II. USSAAC does not have standing to challenge defendants’ FEHBP plan approvals
    on behalf of its members.
    An association has standing to sue on behalf of its members if it can demonstrate that
    “(1) at least one of its members would have standing to sue in his own right, (2) the interests the
    association seeks to protect are germane to its purpose, and (3) neither the claim asserted nor the
    relief requested requires that an individual member of the association participate in the lawsuit.”
    Sierra Club v. EPA, 
    292 F.3d 895
    , 898 (D.C. Cir. 2002), citing Hunt v. Wash. State Apple Adver.
    Comm’n, 
    432 U.S. 333
    , 342–43 (1977). Failure to satisfy any of those requirements defeats an
    association’s standing. Am. Chemistry Council v. Dep’t of Transp., 
    468 F.3d 810
    , 815 (D.C. Cir.
    2006).
    Here, USSAAC fails to satisfy the first prong of associational standing because it cannot
    demonstrate that any of its members has standing to sue in his or her own right. As the Court
    concluded above, Huron does not have individual standing because he failed to establish that his
    injury was caused by defendants’ FEHBP plan approvals and would likely be redressed by a
    15
    favorable decision from this Court. Moreover, USSAAC does not demonstrate that any other
    USSAAC members have standing. It alleges that there are other USSAAC members enrolled in
    FEHBP who require SGDs and that these members suffer delays and high costs to obtain SGDs,
    if they are able to obtain SGDs at all. Compl. ¶¶ 1, 15; Pls.’ Opp. at 1–2. USSAAC does not,
    however, suggest that these other members are unable to enroll in a FEHBP plan with SGD
    coverage, so they fail to show that these injuries are not self-inflicted. Moreover, even if these
    members were limited to plans without SGD coverage, USSAAC offers no facts to show that its
    other members’ injuries would be redressed by the relief requested in this case, even though
    Huron’s injury would not be redressed. As a result, USSAAC does not have standing to bring
    this claim on behalf of its members. 8
    8       Because an association must satisfy all prongs to have standing, the Court need not
    address whether USSAAC can satisfy the remaining two prongs. Am. Chemistry Council, 468
    F.3d at 815.
    16
    CONCLUSION
    For the reasons stated above, the Court finds that neither Huron nor USSAAC satisfies
    the constitutional standing requirements. The Court will therefore grant defendants’ motion to
    dismiss the complaint in its entirety for lack of subject-matter jurisdiction. 9 A separate order will
    issue.
    AMY BERMAN JACKSON
    United States District Judge
    DATE: December 23, 2013
    9       Defendants also argue that, to the extent the Court construes the complaint as asserting a
    claim for denied benefits, it should dismiss the complaint because plaintiffs have not exhausted
    administrative remedies. Defs.’ Mem. at 6 n.4. Agency rules require individuals covered by a
    FEHBP plan to “exhaust both the carrier and OPM review processes . . . before seeking judicial
    review of the denied claim.” 
    5 C.F.R. § 890.105
     (2013) (emphasis added). It appears clear,
    however, that plaintiffs do not assert a claim for denied benefits, but rather a challenge to
    defendants’ plan approvals. No statute or agency rule requires administrative exhaustion for
    such a challenge, and the Court is not free to impose an exhaustion requirement in its own
    discretion. Darby v. Cisneros, 
    509 U.S. 137
    , 154 (1993). Therefore, plaintiffs did not need to
    exhaust administrative processes before seeking judicial review.
    17
    

Document Info

Docket Number: Civil Action No. 2013-0211

Citation Numbers: 12 F. Supp. 3d 46, 2013 WL 6791978, 2013 U.S. Dist. LEXIS 179536

Judges: Judge Amy Berman Jackson

Filed Date: 12/23/2013

Precedential Status: Precedential

Modified Date: 10/19/2024

Authorities (31)

Arizona Christian School Tuition Organization v. Winn , 131 S. Ct. 1436 ( 2011 )

Darby v. Cisneros , 113 S. Ct. 2539 ( 1993 )

Appeal of Ethel Bolden Mary Dyer v. Blue Cross & Blue ... , 848 F.2d 201 ( 1988 )

Petro-Chem Processing, Inc. v. Environmental Protection ... , 866 F.2d 433 ( 1989 )

National Treasury Employees Union v. United States , 101 F.3d 1423 ( 1996 )

Sparrow, Victor H. v. United Airlines Inc , 216 F.3d 1111 ( 2000 )

Frank A. Schuler, Jr. v. United States of America, ... , 617 F.2d 605 ( 1979 )

Kokkonen v. Guardian Life Insurance Co. of America , 114 S. Ct. 1673 ( 1994 )

Victor Herbert v. National Academy of Sciences , 974 F.2d 192 ( 1992 )

Norton v. Southern Utah Wilderness Alliance , 124 S. Ct. 2373 ( 2004 )

United States v. Hohri , 107 S. Ct. 2246 ( 1987 )

Hunt v. Washington State Apple Advertising Commission , 97 S. Ct. 2434 ( 1977 )

Sierra Club v. Environmental Protection Agency , 292 F.3d 895 ( 2002 )

Lujan v. Defenders of Wildlife , 112 S. Ct. 2130 ( 1992 )

William Hohri v. United States , 782 F.2d 227 ( 1986 )

OAO Healthcare Solutions, Inc. v. National Alliance of ... , 394 F. Supp. 2d 16 ( 2005 )

American Chemistry Council v. Department of Transportation , 468 F.3d 810 ( 2006 )

Friends of the Earth, Inc. v. Laidlaw Environmental ... , 120 S. Ct. 693 ( 2000 )

Jerome Stevens Pharmaceuticals, Inc. v. Food & Drug ... , 402 F.3d 1249 ( 2005 )

General Motors Corp. v. Environmental Protection Agency , 363 F.3d 442 ( 2004 )

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