Johnson v. United States Office of Personnel Management

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-2723
RON JOHNSON and BROOKE ERICSON,
Plaintiffs-Appellants,
v.
UNITED STATES OFFICE OF PERSONNEL MANAGEMENT and
KATHERINE ARCHULETA, Director of the Office of Personnel
Management,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 1:14-cv-00009 — William C. Griesbach, Chief Judge.
____________________
ARGUED JANUARY 21, 2015 — DECIDED APRIL 14, 2015
____________________
Before BAUER, FLAUM, and WILLIAMS, Circuit Judges.
FLAUM, Circuit Judge. The Office of Personnel Manage-
ment (“OPM”) negotiates and regulates health benefit plans
that are offered to federal employees. Most federal employ-
ees receive these benefits through the Federal Employee
Health Benefits Program (“FEHBP”). Prior to the passage of
the Patient Protection and Affordable Care Act (“ACA”),
2 No. 14-2723
Pub. L. No. 111-148 (2010), members of the U.S. Senate and
House of Representatives, as well as their staff members,
were eligible for FEHBP insurance plans, just like other fed-
eral employees. A provision of the ACA, however, limited
the health care options available to members of Congress
and their staffs, mandating that the only health plans that
the federal government could make available to those indi-
viduals were plans created under the ACA or offered
through a health insurance exchange established under the
ACA; they could no longer receive insurance through the
FEHBP. See 42 U.S.C. § 18032(d)(3)(D).
Following the passage of the ACA, OPM conducted no-
tice-and-comment rulemaking to implement this provision
of the ACA, and issued the final rule, 78 Fed. Reg. 60653-01,
that is at issue in this case. The plaintiffs, United States Sena-
tor Ron Johnson, of Wisconsin, and his legislative counsel,
Brooke Ericson, filed suit in federal court to enjoin the en-
forcement and implementation of the OPM rule. They con-
tend that the rule is contrary to the ACA and other law be-
cause it allows the government to make pre-tax employer
contributions to non-FEHBP plans and makes members of
Congress and their staffs eligible for an ACA insurance ex-
change reserved for small businesses.
The defendants—OPM and its director, Katherine Ar-
chuleta (collectively, “OPM”)—moved to dismiss, arguing
that the plaintiffs lack standing to bring this suit. The district
court granted the motion, finding that the plaintiffs had not
identified a judicially cognizable injury that is traceable to
the aspects of the OPM regulation that they challenge. We
affirm.
No. 14-2723 3
I. Background
The federal government offers employer-sponsored
group health insurance to its employees pursuant to the
Federal Employees Health Benefits Act of 1959 (“FEHBA”), 5
U.S.C. § 8901–8914. See Empire Healthchoice Assurance, Inc. v.
McVeigh, 547 U.S. 677, 682 (2006). That insurance is provided
through the FEHBP. The FEHBA “assigns to OPM responsi-
bility for negotiating and regulating health-benefits plans for
federal employees.” Id. at 683. The government pays for up
to seventy-five percent of the premiums for plans provided
through the FEHBP, 5 U.S.C. § 8906(b)(1)–(2), and those con-
tributions, like all employer contributions to employer-
sponsored group health insurance, are tax free.
Members of Congress and their staffs (collectively,
“Members”) are among those defined by the FEHBA as fed-
eral employees, 5 U.S.C. § 8901(1)(B)–(C), and, prior to the
2010 enactment of the ACA, those individuals were eligible
for health plans offered through the FEHBP. The ACA,
though, changed the status quo by mandating that Members
are now eligible only for health plans created under the ACA
or offered through an ACA health insurance exchange:
Notwithstanding any other provision of law,
after the effective date of this subchapter, the
only health plans that the Federal Government
may make available to Members of Congress
and congressional staff with respect to their
service as a Member of Congress or congres-
sional staff shall be health plans that are—
(I) created under this Act (or an amend-
ment made by this Act); or
4 No. 14-2723
(II) offered through an Exchange estab-
lished under this Act (or an amendment
made by this Act).
42 U.S.C. § 18032(d)(3)(D)(i). The statute defines “Member of
Congress” as “any member of the House of Representatives
or the Senate” and defines “congressional staff” as “all full-
time and part-time employees employed by the official office
of a Member of Congress, whether in Washington, DC or
outside of Washington, DC.” § 18032(d)(3)(D)(ii). According
to the plaintiffs, this provision “was passed so that Members
of Congress and their staffs would be subject to the ACA in
the same way as Members’ constituents” and to preclude
Members from receiving government contributions. Con-
gress took this action, they say, “to address criticisms that it
was reserving special ‘Cadillac’ benefits for itself or was un-
willing to live with the health insurance it was mandating on
the rest of the Nation.”
OPM was charged with the task of implementing this
statutory provision. It conducted notice-and-comment rule-
making and issued a final rule, 78 Fed. Reg. 60653-01 (the
“OPM Rule” or “Rule”) on October 2, 2013. The Rule adopts
the statutory definitions of “Member of Congress” and
“congressional staff.” 5 C.F.R. § 890.101. The implementing
regulation states:
The following employees are not eligible to
purchase a health benefit plan for which OPM
contracts or which OPM approves under this
paragraph … but may purchase health benefit
plans, as defined in 5 U.S.C. 8901(6), that are
offered by an appropriate SHOP as determined
No. 14-2723 5
by the Director [of OPM], pursuant to [42
U.S.C. § 18032(d)(3)(D)]:
(i) A Member of Congress.
(ii) A congressional staff member, if the in-
dividual is determined by the employ-
ing office of the Member of Congress to
meet the definition of congressional staff
member in § 890.101 as of January 1,
2014, or in any subsequent calendar
year.
5 C.F.R. § 890.102(c)(9). A congressional staff member that is
not “determined to meet the definition of congressional staff
member” remains eligible for FEHBP benefits. A “SHOP” is
a Small Business Health Options Program; the Director de-
termined the “appropriate SHOP” for Members to be the DC
Health Link Small Business Market (“DC SHOP”), which is
an exchange created by the ACA. The ACA limits participa-
tion in SHOPs to businesses with up to 100 employees. 42
U.S.C. § 18024(b)(2). The plaintiffs argue that this limitation
would seem to make Members’ employer—either “Con-
gress” or “the federal government,” according to the plain-
tiffs—ineligible for a SHOP exchange. However, the Centers
for Medicare and Medicaid Services—which is not a party to
this suit—authored a memorandum clarifying that “offices
of the Members of Congress, as qualified employers, are eli-
gible to participate in a SHOP regardless of the size and of-
fering requirements set forth in the definition of ‘qualified
employer’ in the Exchange final rule.” Memorandum from
the Ctr. for Consumer Info. & Ins. Oversight, Ctrs. for Medi-
care & Medicaid Servs., Affordable Insurance Exchange
Guidance (Sept. 30, 2013), available at
6 No. 14-2723
http://cms.gov/CCIIO/Resources/Fact-Sheets-and-
FAQs/Downloads/members-of-congress-faq-9-30-2013.pdf
(last visited Apr. 13, 2015, as were all websites in this opin-
ion). OPM further determined that the government would
continue to provide pre-tax health insurance contributions
for Members who purchase certain plans from the DC SHOP,
and that those contributions would be calculated in the same
manner as for plans provided through the FEHBP. 5 C.F.R
§ 890.501(h).
Plaintiffs filed suit against OPM in the Eastern District of
Wisconsin, seeking a declaration that the OPM Rule is un-
lawful and void under the Administrative Procedure Act, 5
U.S.C. §§ 701–06. First, they argue that OPM lacks statutory
authority to grant pre-tax employer contributions to plans
offered through ACA exchanges. According to the plaintiffs,
the FEHBA only gives OPM authority to make contributions
for plans offered through the FEHBP; this authority, they ar-
gue, does not extend to the plans available to Members. Sec-
ond, they argue that the Rule violates the ACA because it al-
lows Members’ employer—which the plaintiffs claim does
not qualify as a small employer—to participate in a SHOP
exchange. Third, and finally, the plaintiffs argue that the
regulation violates their “statutory and constitutional enti-
tlement to equal treatment” with Senator Johnson’s constitu-
ents who purchase insurance on individual ACA exchanges.
In response to the plaintiffs’ complaint, OPM filed a mo-
tion to dismiss, arguing that the district court lacked subject
matter jurisdiction because the plaintiffs do not have stand-
ing to bring this suit. The district court granted the motion to
dismiss. Given that the plaintiffs’ suit alleges that the OPM
Rule allows them to receive more favorable treatment than
No. 14-2723 7
they believe they are entitled to—specifically, a pre-tax
healthcare contribution from the government and insurance
purchased from a SHOP exchange—the district court rea-
soned that they “receive, at worst, a benefit” from the regula-
tion. Therefore, the court concluded, the plaintiffs suffered
no injury that was traceable to the challenged regulation and
do not have standing. Plaintiffs now appeal the district
court’s dismissal on standing grounds.
II. Discussion
The jurisdiction of federal courts is limited to “Cases”
and “Controversies,” U.S. Const. art. III, § 2, and no “Case”
or “Controversy” exists if the plaintiff lacks standing to chal-
lenge the defendant’s alleged misconduct. Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560 (1992). To establish standing, a
plaintiff must show that he has suffered (or is imminently
threatened with) (1) a concrete and particularized “injury in
fact” (2) that is fairly traceable to the challenged action of the
defendant, and that is (3) likely to be redressed by a favora-
ble judicial decision. Id. at 560–61.
The injury suffered by the plaintiff “must be both real
and immediate, not conjectural or hypothetical.” City of Los
Angeles v. Lyons, 461 U.S. 95, 102 (1983) (internal quotation
marks omitted). Neither psychological harm “produced by
observation of conduct with which one disagrees” nor of-
fense at the behavior of government and a desire to have
public officials comply with one’s view of the law constitutes
a cognizable injury. Valley Forge Christian Coll. v. Am. United
for Separation of Church & State, Inc., 454 U.S. 464, 485 (1982);
see also Freedom from Religion Found., Inc. v. Obama, 641 F.3d
803, 807 (7th Cir. 2011). Furthermore, the plaintiff’s injury
must be sustained “as a consequence of” the challenged
8 No. 14-2723
conduct. Valley Forge, 454 U.S. at 485; see also Lyons, 461 U.S.
at 102 (noting that, in order to have standing, a plaintiff’s in-
jury must be sustained “as the result of the challenged …
conduct”). The plaintiff bears the burden of establishing the
required elements of standing. Kathrein v. City of Evanston,
Ill., 752 F.3d 680, 690 (7th Cir. 2014). We review a district
court’s decision on standing de novo. Pollack v. U.S. Dep’t of
Justice, 577 F.3d 736, 739 (7th Cir. 2009).
The plaintiffs argue that they have suffered three inde-
pendent injuries that are traceable to the challenged OPM
Rule. First, they argue that the Rule imposes an administra-
tive burden on Senator Johnson and his staff, forcing them to
determine which staff members are “congressional staff”
within the meaning of the Rule and the ACA on a yearly ba-
sis. Second, the plaintiffs argue that the Rule deprives them
of their statutory and constitutional right to equal treatment
with Senator Johnson’s constituents. Third, Senator Johnson
argues that the Rule causes him “reputational and electoral
injury” because it requires him to participate in conduct
which he believes to be illegal and gives him “special treat-
ment” which is unavailable to his constituents. We will ex-
amine each of those alleged injuries in turn.
a. Administrative burden
According to the plaintiffs, the OPM Rule places an ad-
ministrative burden on Senator Johnson and his staff be-
cause it requires them to determine which of Senator John-
son’s staff are “congressional staff.” The government, in con-
trast, contends that the Rule does not create any burden for
the plaintiffs because it does not require them to actually do
anything. We need not resolve this debate, however, be-
cause, even if the Rule does place an administrative burden
No. 14-2723 9
on plaintiffs, that does not give them standing to challenge
the aspects of the Rule that they allege are illegal, which are
unrelated to the imposition of an administrative burden.
“[A] plaintiff must demonstrate standing for each claim
he seeks to press.” Davis v. FEC, 554 U.S. 724, 734 (2008)
(quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352
(2006)). This means that, for each claim of wrongdoing al-
leged, a plaintiff must demonstrate, in addition to redressa-
bility, that he has suffered (or is imminently threatened with)
an injury that is traceable to the wrongdoing alleged in that
particular claim.
The fact that a plaintiff has suffered an injury that is
traceable to one kind of conduct does not grant that plaintiff
standing to challenge other, even related, conduct; “standing
is not dispensed in gross.” Id. For example, in Davis v. FEC,
the Supreme Court stated that the mere fact that the plaintiff
had established standing to challenge a disclosure require-
ment imposed by one statutory provision—§ 319(b) of the
Bipartisan Campaign Reform Act of 2002 (“BCRA”)—did not
necessarily mean that he had standing to attack a neighbor-
ing provision—§ 319(a), an “asymmetrical contribution lim-
it.” Id at 733–34. Rather, the Court required the plaintiff in
Davis to separately show injury, traceability, and redressabil-
ity with regard to § 319(a). Though the Davis plaintiff was
able to demonstrate standing for that claim, id. at 735, the
plaintiff in Lewis v. Casey, 518 U.S. 343 (1996), was not so suc-
cessful. There, the Court held that a plaintiff had standing to
challenge a state’s failure to provide special services that the
plaintiff, in light of his illiteracy, required to ensure his right
of access to the courts. Id. at 358. That injury, however, did
not give him standing to challenge other alleged administra-
10 No. 14-2723
tive deficiencies that deprived other people—such as non-
English speakers—of their right of access to the courts, as
those deficiencies had not personally injured the plaintiff:
“the right to complain of one administrative deficiency [does
not] automatically confer[] the right to complain of all ad-
ministrative deficiencies.” Id. at 358 & n.6; see also Blum v.
Yaretsky, 457 U.S. 991, 999 (1982) (“[A] plaintiff who has been
subject to injurious conduct of one kind [does not] possess
by virtue of that injury the necessary stake in litigating con-
duct of another kind, although similar, to which he has not
been subject.”); Mueller v. Raemisch, 740 F.3d 1128, 1132–33
(7th Cir. 2014) (holding that the plaintiffs had standing to
challenge certain aspects of Wisconsin’s sex-offender regis-
tration scheme but lacked standing to challenge the scheme’s
prohibition against a Wisconsin sex offender’s changing his
name “because, while opposing it, neither [plaintiff] ex-
presses any intention of changing his name”).
Applying that rule to this case, the plaintiffs’ alleged ad-
ministrative burden cannot support their standing to chal-
lenge aspects of the OPM Rule that are entirely unrelated to
that burden. Their asserted injury is not traceable to (i.e.,
“the result of,” Lyons, 461 U.S. at 102, or “a consequence of,”
Valley Forge, 454 U.S. at 485) the conduct that they chal-
lenge—namely, the availability of tax-free government con-
tributions, Congress’s eligibility for a SHOP exchange, and
an equal protection violation. Put differently, plaintiffs’ ad-
ministrative injury would continue to exist even if the Rule
were cured of all of its alleged infirmities.
The plaintiffs contends that this claim-by-claim approach
is inapplicable here because they have only one claim—that
the OPM Rule is unlawful—and because their administrative
No. 14-2723 11
injury is caused by the “conduct” that they challenge—the
enactment of the Rule. That argument paints with too broad
a brush. The plaintiffs do not object to the enactment of the
Rule itself, for example by claiming that its enactment was
procedurally deficient. Rather, they claim that specific as-
pects of the Rule, none of which are related to their adminis-
trative burden, are substantively unlawful. The relevant
“conduct” that they challenge, therefore, is not the enact-
ment of the Rule, but rather OPM’s allowance of federal
healthcare contributions, its declaration that members of
Congress and their staffs are eligible for SHOP plans, and its
alleged violation of their equal protection rights. Similarly,
the conduct challenged by the plaintiff in Davis was not the
enactment of the BCRA, but rather the inclusion of specific
aspects of that Act that actually caused him injury. The Su-
preme Court, though, required that the plaintiff demonstrate
an injury stemming from each challenged aspect of the Act;
demonstrating an injury caused by one aspect of a legislative
action was not sufficient to give him standing to challenge
other aspects of that action.
The plaintiffs attempt to differentiate Davis by pointing
to the fact that, in that case, the challenged aspects of the
BCRA were separated into two distinct subsections of the
statute. Only because of this separation, they argue, did the
Supreme Court require the plaintiff to separately demon-
strate standing for the different aspects of the Act that he
challenged. Here, in contrast, there is only one OPM Rule,
which the plaintiffs contend is not similarly divisible. Be-
cause their injury derives from that indivisible Rule, they ar-
gue, they have standing to challenge the Rule as a whole.
Furthermore, plaintiffs argue, the remedy that they seek—
12 No. 14-2723
invalidation of the Rule—would eliminate their administra-
tive burden injury.
We find this argument unconvincing. First the OPM Rule
is divisible. It substantively amends six separate regulations,
and many of those amendments are broken into subsections,
just like the BCRA. Importantly, the plaintiffs’ alleged ad-
ministrative burden is caused by amendments to a different
regulation (5 CFR § 890.102) than the amended regulation
that allows government contributions to Members’ health
plans (5 CFR § 890.501). We do not see why an injury caused
by amendments to one regulation should permit the plain-
tiffs to challenge amendments to a separate regulation, just
because the amendments were made simultaneously.
Second, an official body’s choice of how to organize a
statute or set of regulations is irrelevant to the standing in-
quiry. Nothing in Davis suggests that the Court’s standing
analysis would have been any different had the BCRA’s dis-
closure provision and asymmetrical campaign contribution
limit been found in the same statutory subsection. The rea-
son for this is straightforward: in order to demonstrate
standing, a plaintiff’s injury must match the legal problem
he alleges. A plaintiff cannot attack a perceived problem that
does not cause him injury, regardless of its organizational
relationship to other provisions (illegal or not) that do cause
him injury.
Finally, the fact that the plaintiffs have requested a reme-
dy—vacatur of the OPM Rule as a whole—that would coin-
cidentally eliminate their alleged injury likewise does not
impact our standing analysis. Although vacatur is the pre-
sumptive remedy for a violation of the Administrative Pro-
cedure Act, courts have discretion to craft other remedies.
No. 14-2723 13
See, e.g., Advocates for Highway & Auto Safety v. Fed. Motor
Carrier Safety Admin., 429 F.3d 1136, 1151 (D.C. Cir. 2005);
Sugar Cane Growers Co-op. of Fla. v. Veneman, 289 F.3d 89, 98
(D.C. Cir. 2002). In other words, were the plaintiffs to prevail
on the merits of their case, the district court could impose a
remedy that, while alleviating the substantive legal concerns
they identify, would not cure their administrative injury; for
example, partial vacatur is sometimes an appropriate reme-
dy. See Sierra Club v. Van Antwerp, 719 F. Supp. 2d 77, 79
(D.D.C. 2010) (ordering partial vacatur of an agency’s arbi-
trary and capricious permit). Furthermore, even if vacatur of
the entire Rule were the only possible remedy in this case,
the fact that this remedy would by coincidence redress plain-
tiffs’ alleged injury would not provide them with standing to
challenge aspects of that Rule that have not caused them in-
jury.
b. Equal protection
The plaintiffs next assert an injury based on “being de-
nied the equal treatment guaranteed by the ACA and the
Constitution.” According to the plaintiffs, § 18032(d)(3)(D) of
the ACA was enacted to ensure that members of Congress
and their staffs would be “in the same boat” as the “millions
of Americans [forced] to purchase insurance on the newly
created exchanges.” This argument fails for several reasons.
First, the plaintiffs cannot assert an injury based on the
violation of a statutory right to equal treatment because they
have no such right. “The actual or threatened injury required
by Art. III may exist solely by virtue of statutes creating legal
rights, the invasion of which creates standing. … Essentially,
the standing question in such cases is whether the … statuto-
ry provision on which the claim rests properly can be under-
14 No. 14-2723
stood as granting persons in the plaintiff’s position a right to
judicial relief.” Warth v. Seldin, 422 U.S. 490, 500 (1975) (cita-
tions and internal quotation marks omitted).
To discern whether a statute creates legal rights, we must
determine “whether or not Congress intended to confer in-
dividual rights upon a class of beneficiaries.” Gonzaga Univ.
v. Doe, 536 U.S. 273, 285 (2002). “Generally, we consider three
factors to determine if a statute creates an enforceable right:
(1) whether Congress intended the provision to benefit the
plaintiff, as evidenced by rights-creating language; (2)
whether the right is not so vague and amorphous that its en-
forcement would strain judicial competence; and (3) whether
the statute unambiguously imposes a binding obligation on
the [government], such that the provision is couched in
mandatory, rather than precatory, terms.” Bontrager v. Ind.
Family & Soc. Serv. Admin., 697 F.3d 604, 607 (7th Cir. 2012)
(citation and internal quotation marks omitted).
The plaintiffs argue that § 18032(d)(3)(D) creates a right
for them to be given equal treatment with Senator Johnson’s
constituents. In their view, the OPM rule violates that right
because it treats them differently than those constituents. But
nothing on the face of § 18032(d)(3)(D) states or implies that
Members have a right to equal treatment with their constitu-
ents. The plaintiffs contend that the purpose underlying the
passage of that provision—to ensure that Members “would
be subject to the ACA in the same way as Members’ constitu-
ents who would be most directly affected by the ACA”—
indicates that Congress intended to give Members a right of
equal treatment with those constituents. We disagree. First,
rather than containing “rights-creating” language,
§ 18032(d)(3)(D) acts to limit the choices available to Mem-
No. 14-2723 15
bers. This suggests that, by passing the section, Congress
sought to constrain the rights of its Members, not to expand
them. Second, plaintiffs’ proposed right is “vague and amor-
phous.” Their briefs do not make clear which groups are to
be treated equally or what “equal treatment” would even
mean in this context. 1 If even these plaintiffs cannot describe
1 In their complaint, plaintiffs alleged that “the OPM Rule violates the
Equal Protection Clause of the United States Constitution in that it treats
Members of Congress and their staffs differently than other similarly-
situated employees who obtain insurance coverage pursuant to the terms
of the ACA. No other employees of large employers are able to purchase
insurance through small business exchanges with tax free subsidies from
employers.” There, they seem to be comparing Members to a specific
subset of constituents: employees of large private employers. The plain-
tiffs did not mention a statutory right to equal protection in their com-
plaint.
On appeal, however, plaintiffs seem to have changed their position.
At times they suggest that they have a right to equal treatment with Sen-
ator Johnson’s “constituents,” a much larger comparator group than they
suggested in their complaint. Elsewhere in their briefs, however, plain-
tiffs suggest that the comparator group is those constituents who pur-
chase insurance off of individual ACA exchanges. This second alterna-
tive makes more sense in light of plaintiffs’ argument that they should be
offered only plans from those exchanges. After all, their eligibility for
employer contributions puts them on equal footing with many of Senator
Johnson’s constituents, who similarly receive employer contributions; we
do not see how they could claim unequal treatment with those constitu-
ents. Focusing on “constituents who purchase insurance off of ACA in-
dividual exchanges” is also problematic. Anyone can choose whether or
not to purchase their insurance that way, so plaintiffs’ theory compares
their treatment not to the treatment of a fixed group of individuals, but
rather to the treatment of a group who choose to be treated in a certain
way. It is not the government who treats that group in that way; rather,
they do so by choice. Even without these problems and inconsistencies,
however, the plaintiffs would still not have a cognizable equal protection
claim for the reasons we give in the main text.
16 No. 14-2723
the nature of the proposed right, what is a judge tasked with
enforcing that right to do? Third, the statutory context of the
section does not in fact suggest that it was passed to ensure
equal treatment. Contrary to plaintiffs’ suggestions,
§ 18032(d)(3)(D) was not necessary to ensure that Members
would be “subject to” the ACA to the same extent as their
constituents. The ACA is a law of general applicability; even
without that section, it would have applied to all Americans,
whether or not they are in Congress. What the section did
accomplish, however, was to place an additional constraint
on the healthcare options available to Members; the ACA
does not place that constraint on any other classes of indi-
viduals. This is not a requirement of equal treatment; rather,
it is a mandate that Members be placed in a worse position
than anyone else. Consequently, we find that
§ 18032(d)(3)(D) does not create a private right of equal
treatment. The plaintiffs therefore cannot base his standing
on the violation of that purported right.
The plaintiffs are left, therefore, with a claim that their
constitutional right to equal protection has been violated. In
rejecting plaintiffs’ equal protection theory of injury, the dis-
trict court reasoned that, apart from any hypothetical elec-
toral/reputational injury (which we will examine next), the
aspects of the OPM Rule that plaintiffs claim are illegal—the
availability of tax-free health care contributions and access to
a SHOP exchange—cause them to “receive, at worst, a bene-
fit,” which cannot be considered an equal protection injury-
in-fact. On appeal, plaintiffs argue that what looks to some
like a benefit (such as a healthcare contribution) can, to a
plaintiff, also act as an injury. We agree with the plaintiffs on
this point—standing does not rest on a court’s belief as to
whether unequal treatment, as a whole, benefits or harms a
No. 14-2723 17
plaintiff. Rather, it rests on whether the plaintiff has suffered
an injury, whether or not that injury is arguably offset by
some monetary gain.
The only type of harm that the plaintiffs identify as
stemming from their unequal treatment is an injury to Sena-
tor Johnson’s reputation and electoral prospects, which we
consider below. The plaintiffs, however, argue that, even if
the OPM Rule has not caused them (or imminently threat-
ened them with) reputational and electoral harm, they
would still have a judicially cognizable injury merely be-
cause the Rule, in the abstract, treats them unequally. We
disagree. The mere allegation of unequal treatment, absent
some kind of actual injury, is insufficient to create standing.
See Youth Alive v. Hauppauge Sch. Dist., No. 08-1068, 2012 WL
4891561, at *3 (E.D.N.Y. Oct. 15, 2012) (“Although the injury-
in-fact requirement is not as stringent in Equal Protection
cases, a plaintiff must still establish that she suffered some
sort of identifiable harm. … Whether it’s a barrier or an une-
qual playing field that affects a plaintiff’s pursuit, she must
identify some disadvantage to meet the constitutional re-
quirement for standing.”). We have been unable to find any
case in which a plaintiff was deemed to have standing based
solely on being treated differently. At the very least, plain-
tiffs have had to show that the challenged classification cre-
ates a “barrier that makes it more difficult for members of
one group to obtain a benefit,” Ne. Fla. Chapter of the Associat-
ed Gen. Contractors of Am. v. City of Jacksonville, Fla., 508 U.S.
656, 666 (1993), or causes “non-economic injuries” such as
“stigmatizing members of the disfavored group.” Heckler v.
Mathews, 465 U.S. 728, 739 (1984).
18 No. 14-2723
Even more problematic for plaintiffs’ theory is that they
claim to be treated too favorably. We fail to see how, in the
absence of some other sort of injury, being treated unequally
well can constitute the sort of “injury” that Article III re-
quires in order to ensure that the plaintiff has “such a per-
sonal stake in the outcome of the controversy as to warrant
his invocation of federal-court jurisdiction and to justify ex-
ercise of the court’s remedial powers on his behalf.” Warth,
422 U.S. at 498–99 (internal quotation marks omitted); see also
Youth Alive, 2012 WL 4891561, at *3 (“[I]f Plaintiffs were cor-
rect that they could establish standing based merely on dif-
ferential treatment, a party that benefited from a classification
would, in theory, be able to challenge its validity. Such a re-
sult would fundamentally contradict the principle of stand-
ing.”); Janes v. Triborough Bridge & Tunnel Auth., 889 F. Supp.
2d 462, 466 (S.D.N.Y. 2012).
c. Reputational and electoral harm
The plaintiffs, therefore, cannot rely on the theory that
they have been injured by being treated unequally favorably
in the abstract. They have, however, also alleged an injury
that they say derives from their unequal treatment: the “rep-
utational and electoral harms that the Rule imposes on
Members and their staffs by virtue of giving them special
treatment unavailable to their constituents and making them
complicit in the violation of a congressionally enacted stat-
ute.” They also allege that those asserted harms give them
standing independent of any equal protection theory. We
disagree with both of these arguments.
Plaintiffs do not explain how their reputational and elec-
toral theory of injury could apply to Ericson, a non-elected
staff member, so we focus our analysis of this issue on Sena-
No. 14-2723 19
tor Johnson. We have repeatedly held that public officials
forced to take what they believe to be illegal actions cannot
premise standing on the assertion that they do not want to
be complicit in unlawful behavior. See Cronson v. Clark, 810
F.2d 662, 664 (7th Cir. 1987) (holding that the Illinois Auditor
General did not have standing where he argued that he was
being unlawfully precluded from conducting a full audit of
the state supreme court); D’Amico v. Schweiker, 698 F.2d 903,
906 (7th Cir. 1983) (holding that administrative judges from
the Social Security Administration lacked standing to com-
plain that a directive by their superiors required them to de-
cide Social Security cases in a manner contrary to law be-
cause it required them to do less than they thought was le-
gally required). 2
Senator Johnson tries to distinguish Cronson and D’Amico
by arguing that the plaintiffs in those cases did not have to
worry about being reelected; politicians, on the other hand,
can suffer greatly by being perceived to be taking part in il-
legal action. To support this position, Senator Johnson relies
2 Senator Johnson contends that these decisions are contrary to the Su-
preme Court’s holding in Craig v. Boren, 429 U.S. 190 (1976), which he
argues stands for the proposition that individuals have standing to chal-
lenge government compulsion to participate in law-breaking. This is an
inaccurate characterization of Craig. The Court in that case found that the
plaintiff had standing because the statutory sections she challenged
obliged her to either “heed the statutory discrimination, thereby incurring
a direct economic injury through the constriction of her buyers’ market, or to
disobey the statutory command and suffer … ‘sanctions and perhaps
loss of license.’” Id. at 194 (emphasis added). The portion of that state-
ment that we have italicized—which plaintiffs omit from their quotation
of that sentence—makes clear that the Craig plaintiff had standing not
because she was compelled to participate in law-breaking, but because
she faced economic injury regardless of which option she chose.
20 No. 14-2723
on the D.C. Circuit’s decision in Boehner v. Anderson, 30 F.3d
156 (D.C. Cir. 1994). In that case, Representative John
Boehner of Ohio challenged a cost of living adjustment that
increased his compensation, arguing that the adjustment
violated the Twenty-Seventh Amendment. The defendants
argued that his receipt of additional money could not be an
“injury,” but Representative Boehner argued that receiving
an unconstitutional salary increase would harm him. The
D.C. Circuit agreed with Representative Boehner, finding
that he had standing:
The [defendant] argues further that an increase
in pay is not an injury. Mr. Boehner, however,
says that in the context of his constituency it is.
We do not think it the office of a court to insist
that getting additional monetary compensation
is a good when the recipient, a congressman,
says that in his political position it is a bad.
Id. at 160. Senator Johnson argues that, just like Representa-
tive Boehner, he has standing despite the fact that the con-
duct he challenges provides him with a monetary benefit,
because that conduct forces him to engage in illegal behav-
ior, which he alleges will cause him reputational and elec-
toral harm. 3
3 Senator Johnson also points to a Supreme Court case, Meese v. Keene,
481 U.S. 465 (1987), which he says supports this argument. The plaintiff
in that case was a politician who desired to exhibit certain films which,
under the Foreign Agents Registration Act of 1938, were designated as
“political propaganda.” Id. at 467–68. The Court held that the plaintiff
had standing to seek an injunction against the application of the Act to
these three films. His injury, according to the Court, was that “if he were
to exhibit the films while they bore such characterization, his personal,
No. 14-2723 21
OPM attempts to distinguish Boehner by arguing that, in
that case, the allegedly illegal pay raise occurred automati-
cally; here, in contrast, Senator Johnson will receive the pur-
portedly illegal benefits only if he asks for them. Senator
Johnson is free to forego the allegedly illegal benefits that he
believes constitute unequal treatment. He could attain pre-
cisely what he wants—an unsubsidized health plan pur-
chased through an individual ACA exchange—by opting out
of the insurance offered to him through OPM and instead
purchasing insurance himself from an individual exchange.
We have previously held that plaintiffs “cannot allege an in-
jury from one of [multiple] options where they can choose
another which causes them no injury.” Fire Equip. Mfrs.
Ass’n, Inc. v. Marshall, 679 F.2d 679, 682 n.5 (7th Cir. 1982).
Here, Senator Johnson can avoid his asserted injury by refus-
political, and professional reputation would suffer and his ability to ob-
tain re-election and to practice his profession would be impaired.” Id. at
473. For multiple reasons, this case does not support Senator Johnsons’
position here. First, the Meese Court stressed that the plaintiff had stand-
ing because his First Amendment right to exhibit the films was chilled, as
doing so while they were designated as propaganda would hurt his rep-
utation and electoral chances. Here, in contrast, Senator Johnson has no
constitutional right to the benefits at issue—he does not even want them;
unlike the plaintiff in Meese, he is not faced with the choice between ex-
ercising a fundamental right and facing the wrath of his constituents.
Second, the plaintiff in Meese “submitted detailed [and uncontradicted]
affidavits, including one describing the results of an opinion poll and
another containing the views of an experienced political analyst, sup-
porting the conclusion that his exhibition of [films labeled as ‘political
propaganda’] would substantially harm his chances for reelection and
would adversely affect his reputation in the community.” Id. at 473–74.
Senator Johnson presents no similar evidence suggesting that his politi-
cal standing will be diminished by his accepting (or simply being of-
fered) the benefits he claims are illegal.
22 No. 14-2723
ing the benefits that he alleges to be illegal. Such an avoida-
ble injury cannot support standing.
Senator Johnson offers two arguments in response. First,
he contends that Boehner is indistinguishable because OPM is
mistaken as a matter of fact—just as Senator Johnson can de-
cline federal healthcare benefits, so too could Representative
Boehner have either declined to accept his illegal pay in-
crease or else returned the extra money to the Treasury. The
pay increase in Boehner, however, was “automatic,” Boehner,
30 F.3d at 159, and members of Congress are prohibited by
law from refusing to accept their salary. See Ida A. Brudnick,
Cong. Research Serv., Salaries of Members of Congress: Congres-
sional Votes, 1990–2014, at 3 n.10 (2014), available at
http://fas.org/sgp/crs/misc/97-615.pdf. It is true that Repre-
sentative Boehner could have donated his increased salary
back to the Treasury (or to a charity), id., but that is beside
the point—although Representative Boehner could decide
what to do upon receipt of his allegedly illegal benefit, he
could not refuse the benefit itself. So, the fact that Senator
Johnson can decline the benefits that allegedly cause him
electoral injury distinguishes this case from Boehner.
Next, Senator Johnson argues that the mere fact that ille-
gal healthcare benefits are made available to him causes him
electoral and reputational injury, even if he refuses these
benefits. First of all, we do not see how the mere availability
of these benefits could cause him injury in a future Senate
reelection campaign because each of his opponents, if elect-
ed, would be offered the same benefits. The availability of
these benefits is an unavoidable perquisite of the office; as
No. 14-2723 23
such, it cannot be used to distinguish between those running
for that office. 4
The D.C. Circuit’s analysis in Boehner suggests that we
cannot second-guess an office holder’s assertion that the re-
ceipt of certain benefits will cause him or her political harm;
it held that “it [is not] the office of a court to insist that get-
ting additional monetary compensation is a good when the
recipient, a congressman, says that in his political position it
is a bad.” 30 F.3d at 160. However, federal courts have a duty
to ensure that they possess subject-matter jurisdiction; they
should not merely rely on the parties’ assurances. McCready
v. White, 417 F.3d 700, 702 (7th Cir. 2005).
The Tenth Circuit has rejected the reasoning of Boehner,
holding in Schaffer v. Clinton that a representative did not
have standing to challenge an allegedly unconstitutional pay
raise. 240 F.3d 878, 885 (10th Cir. 2001). That court dismissed
the plaintiff’s theory that the pay raise was damaging to his
political position and credibility among his constituency be-
cause he had pointed “to no concrete evidence of a loss of
credibility or other reputational injury as a result of” the
raise. Id.4 This also distinguishes our case from Boehner. The Twenty-Seventh
Amendment bars changes to a Senator’s or Representative’s compensa-
tion from taking effect until after the next congressional election. U.S.
Const. amend. XXVII. Therefore, even if Representative Boehner was
correct that his mid-term salary increase was unconstitutional as to him,
it would not have been unconstitutional for one of his opponents, if
elected, to receive that higher salary. Representative Boehner’s receipt of
an unconstitutional salary increase, then, would actually differentiate
him from his opponents.
24 No. 14-2723
We join the Tenth Circuit in parting from the D.C. Cir-
cuit’s analysis in Boehner, and conclude that a political fig-
ure’s assertion, without more, that the receipt (or option of
receiving) a benefit will hurt his or her reputation or elec-
toral prospects is insufficient to establish standing. Respect-
fully, we do not see how Senator Johnson’s reputation could
be sullied or his electability diminished by being offered,
against his will, a benefit that he then decided to refuse. He
could not be accused of participating in an illegal scheme if
he declined to participate. The possibility of electoral or rep-
utational harm, therefore, is much too “conjectural or hypo-
thetical” to constitute the type of concrete injury that is re-
quired to establish Article III standing. Lyons, 461 U.S. at 102.
III. Conclusion
We AFFIRM the district court’s dismissal of plaintiffs’
complaint for lack of standing.