[00:00:02] Speaker 05:
Case number 14-5042, Douglas B. Huron and United States Society of Argumentative and Alternative Communication Appellants v. Beth F. Corbett in her official capacity as Acting Director of the United States Office of Personnel Management and the Office of Personnel Management.

[00:00:18] Speaker 05:
Mr. Fleming for the Appellants, Mr. Faffin Roth for the Appellees.

[00:00:35] Speaker 04:
Morning.

[00:00:53] Speaker 00:
Let's just wait till everybody's out of the courtroom.

[00:00:58] Speaker 04:
Good morning.

[00:00:58] Speaker 04:
I'm Toland Breckenridge of the William & Mary Law School, and I'm just here to introduce Eric Fleming, a third-year law student at William & Mary Law School.

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We will argue on behalf of the appellants.

[00:01:08] Speaker 03:
We're glad to have you.

[00:01:09] Speaker 04:
Thank you.

[00:01:19] Speaker 03:
Good morning, Your Honors, and may it please the court.

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My name is Eric Fleming, and I represent Mr. Douglas Huron, the appellant in this case.

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At this time, I'd like to reserve two minutes for a bottle.

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Mr. Huron suffered an unavoidable procedural injury when OPM failed to negotiate with its insurance carriers to coverage the speech-generating device that he needs, to the same extent that they cover other forms of medically necessary durable medical equipment.

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OPM to negotiate with insurance carriers regarding the benefits that they provide.

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It further held in that case that in the course of those negotiations, it must consider not only the availability of catastrophic benefits, but also other forms of benefits and subscriber costs as well.

[00:02:00] Speaker 01:
The problem I have is that the procedural injury argument that you're making, you did not make below.

[00:02:08] Speaker 01:
In fact, in the opposition to the motion to dismiss based on standing, procedural injury doesn't appear at all in your brief.

[00:02:20] Speaker 03:
Well, Your Honor, we readily concede that we did not use the word procedural next to the word injury, but we disagree that this is an argument we didn't make.

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In fact, our complaint starts on page 7 of the Joint Appendix.

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Paragraph 2, Mr. Huron says that OPM has an affirmative duty to negotiate with insurance carriers.

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Next page, paragraph 5, he alleges that OPM failed to

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failed to negotiate.

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And indeed, the district court itself noted that one of the injuries that Mr. Huron alleged was a failure to negotiate.

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This is something that we have raised up in the very first days of this litigation.

[00:02:55] Speaker 01:
But in the opposition to the motion to dismiss, on page 13, footnote 9,

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you said, maybe not you, but whoever drafted this said, that the allegations made in paragraphs 71A through C, which were these procedural injury allegations, simply summarize how OPM's substantive determinations may be explained in a procedural context and are not intended as standalone, remediable allegations of statutory violations.

[00:03:30] Speaker 01:
That's what you said below, that they're not intended as standalone, remediable allegations of statutory violations.

[00:03:41] Speaker 03:
Well, Your Honor, nevertheless, we did raise these issues in the complaint.

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I just now

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It is true that in the memorandum in opposition, we acknowledge we could have done a better job of making it clear that this is, we were at that point trying to argue both just sort of a standard injury and also a procedural injury.

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But from the beginning, we have been trying to make this argument that we were essentially trying to argue both, the procedural injury as well as the sort of the standard view.

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But you disclaimed any procedural injury and you said in the prior footnote, footnote eight,

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that plaintiffs recognize that their prayer for relief may have unnecessarily confused this rather clear point talking about what it is that they're seeking.

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When you say the relief that Plaintiffs seek is simple, a declaration that OPM's 2012 approvals of plans that either fail to offer SGD coverage or provide more limited coverage than provided for other forms of VME is arbitrary and capricious, et cetera.

[00:04:58] Speaker 01:
So the remedy that you were seeking was to set aside this outcome

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that into order coverage by all planes, not a remedy of, you know, negotiate better.

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You disclaim that, that input note not.

[00:05:16] Speaker 03:
Well, Your Honor, I think that if you look to the complaint in this specific remedy that we asked for, what we asked for, among other things, was we asked that

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The plans that had not provided SGD coverage and did not provide an actuarial basis for doing so, we reopened.

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So that's reopened to negotiation.

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What we were asking for and what we've always been asking for is that OPM

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an actuarial basis for their failure to do so.

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Now, I acknowledge we could have been more fair doing that at the district level, but this is not, we disagree that this is an argument that we waive.

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In fact, OPM has not set forth a waiver argument themselves.

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They've insinuated that one might exist.

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to the extent that it's – we've stated this injury in the complaint.

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I mean, all the allegations in the complaint must be construed so as to do justice under the Federalist procedure.

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We have set forth the statement that OPM is required to negotiate and that they fail to do so.

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Novy Divine, this court said that in the course of those negotiations, which are required under the statute, they have a duty not only to negotiate for catastrophic benefits, but they also have to consider availability of other benefits and cost of describers.

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That comports with section 8902 subsection I of the Act, in which Congress mandated that there must be a reasonable relationship between the raise of their charge and the cost of benefits provided

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And as the district court noted below, almost without exception, every large private sector employer covers these benefits to the same extent that they cover other forms of medically necessary durable medical equipment.

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Can I be clear on one thing?

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So I just want to make clear that for purposes of appeal, your focus is now on these procedural injuries exclusively.

[00:07:24] Speaker 03:
That's correct, Your Honor.

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You're not asserting

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non-procedural, traditional Article III injury anymore.

[00:07:32] Speaker 03:
That's correct, Your Honor.

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We've completely abandoned that.

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We've completely abandoned that as a theory for jurisdiction.

[00:07:38] Speaker 03:
I believe that we have, Your Honor.

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Can I say one other thing, too?

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The complaint kept talking about we need to ask the Secretary to invalidate these plans, but of course, these are one-year plans, and time has passed by the 2012 and the 2013 and the 2014 plans, and we're now in the middle of the 2015.

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open season.

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Has anything changed on the coverage for these sound generating devices?

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I'm not as eligible.

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My understanding of this is that nothing has changed.

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They specifically exclude or limit coverage for speech-generating devices, and it's noteworthy because these are the only forms of medically necessary durable medical equipment that are specifically excluded or limited in this way.

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the GHA brochure that's included in the joint appendix.

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It includes a definition for durable medical equipment.

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Essentially, it's something that needs to be prescribed by the physician.

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It's medically necessary and sees a medical purpose usable only by the patient who is prescribed for a long period of time.

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And you look to the next page, and there's a list of exclusions.

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The first item that's specifically excluded is the speech-driven devices, or I think the term that they use is computer programs that assist with mutations and slash and other programs.

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Other items.

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And how would requiring the secretary to negotiate more

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or extract an explanation be of any benefit whatsoever to your client.

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How it redresses injury in any way.

[00:09:29] Speaker 03:
Well, Your Honor, we believe that it will make it more likely that these plans will cover speech sharing devices to the extent that they cover other durable medical equipment.

[00:09:39] Speaker 00:
So procedural injury has to be, it's not just a violation of procedure, that procedure has to protect

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a substantive legal right or interest of the person that's asserting the procedural injury, and you've abandoned any claim of any alternative type of injury that that procedural injury would be protecting.

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So I'm trying to figure out, you can't just have a procedural injury in the void, but that seems to be what you're claiming here.

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We just want negotiation for negotiation's sake.

[00:10:09] Speaker 03:
Well, no, Your Honor, so what we're saying is that there is a protected procedural right under the statute.

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Mr. Gron has a particularized interest in his speech.

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sharing device, the particularized injuries that he has to pay for it out of pocket because it's excluded or limited under many of these plans or plans that do offer do so at a substantially more expensive rate than what private sector employees would have.

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Is Medicare still 80%?

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Medicare still 80% now in 2015.

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That's correct, your honor.

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And so the way the coordination of benefits rules works here is that GHA would get the bill first and it would pay whatever it's supposed to under their status quo.

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They pay nothing.

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So Mr. Huron would then receive a bill for $5,000.

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Medicare then would pay 80% of that.

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So he would be left to pay $1,000 out of pocket in that instance.

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So, and the Act was passed in order to protect the interests of individuals situated like Mr. Huron.

[00:11:15] Speaker 00:
The Act specifically was passed in order to... Wasn't the Act passed to protect the collective interests of federal employees, the best bargain collectively that the Secretary could, or I'm sorry, that OPM could obtain as opposed to an individual right from everybody to...

[00:11:37] Speaker 00:
complain about what's in, what's out, which has a higher deductible?

[00:11:41] Speaker 00:
I don't see anything in DOE that says there's individual rights to insist on negotiation for individual terms of individual benefits.

[00:11:52] Speaker 03:
I don't think that they said that, Your Honor, but I think it's an inescapable conclusion based on the fact that the plaintiffs in that case were federal employees and the family members of federal employees who were affected by OPM's decision to acquiesce to the carrier's

[00:12:07] Speaker 03:
proposal to reduce catastrophic... It was a cross-cutting.

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It wasn't an individualized claim.

[00:12:13] Speaker 00:
I'm trying to figure out how this whole scheme works if every single federal employee can insist that the terms of every single benefit that they might use be individually negotiated and explained by the director.

[00:12:27] Speaker 03:
Well, no, your honor, so we're not saying that this is this is a right that best in Mr here on just individually to invest in his in his position as a member of this.

[00:12:44] Speaker 03:
Uh, the, uh, the statute was passed to benefit the beneficiaries under these health care plans.

[00:12:49] Speaker 00:
Right, so you gotta be a federal employee.

[00:12:51] Speaker 00:
That's correct.

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That's a pretty large number.

[00:12:52] Speaker 03:
Or someone who's been, who is, uh, regarded as... Or a family member or anybody else.

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That's correct, Your Honor.

[00:12:58] Speaker 03:
Okay.

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Now, um, it's also not the case that this is something where, uh, every federal employee or every family member can bring any claim that they want to the district court and expect to get a remedy

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Rather, this is a very unique claim.

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In 3902 subsection I, Congress said that the appropriate standard for making sure that a rate is reasonably or equitably flexed at the cost of benefits provided is the lowest scheduled plans provided by large private sector employers.

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Again, virtually every large private sector employer covers speech sharing devices to the same extent as other forms of durable medical equipment.

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And they do so at essentially no cost to their employees.

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The same is also true, incidentally, of every other federal program that provides insurance, whether we're talking about – So there's only a claim if you're

[00:13:48] Speaker 00:
plan doesn't read this favorably as lots of other plans uh... if those other plans are large private sector in the city when it says there's a duty to negotiate limited that way one of these procedural injuries be limited to that federal government's health insurance program is often a leader coverage so i wouldn't have the same argument going i don't care the private companies are doing you had a duty to negotiate and to the minimum extract an explanation as to why

[00:14:15] Speaker 00:
My prescription deductible is what it is.

[00:14:19] Speaker 00:
I think it could be lower.

[00:14:21] Speaker 03:
Your honor again.

[00:14:25] Speaker 03:
What the plaintiff would have to state, the claim that the plaintiff would have to state is that there was no negotiation at all, and that would be sort of the difference.

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Now, under Doe v. Devine, the court recognized that OPM does have discretion to negotiate, and just simply challenging the results of those negotiations once those have occurred is beyond what a plaintiff would be able to challenge.

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Now, if the plaintiff can state a claim showing that there is

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a reasonable inference that OPM has failed to negotiate based on the fact that there's not a reasonable relationship between the rate that they're paying, which is consistent with large private sector employers' employees, and the benefits that they're receiving.

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And again, here, they're receiving an objectively inferior set of benefits.

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They're paying essentially the same.

[00:15:18] Speaker 00:
Well, as to this one thing, but everything's, you know, in health insurance plans, there's this is in, but that's out, and there's more of this and less of that.

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So you'd have to objectively show that the overall package is inferior to what they're getting elsewhere.

[00:15:33] Speaker 00:
And there's no allegation of that.

[00:15:35] Speaker 03:
Your Honor, we think that there's a reasonable inference that can be drawn in Mr. Huron's favor based on the fact that these plans are so cheap.

[00:15:43] Speaker 03:
These plans are so cheap?

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The form of the coverage is so cheap.

[00:15:47] Speaker 00:
Why would that matter?

[00:15:48] Speaker 03:
Because it's essentially impossible to trade it for anything, Your Honor.

[00:15:51] Speaker 00:
You can say that with anything.

[00:15:52] Speaker 00:
Again, it's collective.

[00:15:54] Speaker 00:
When you talk about this many employees wanting this many benefits for this many things, it's the total package that you have to look at in an insurance policy.

[00:16:02] Speaker 03:
Well, that's right, your honor.

[00:16:03] Speaker 03:
And OPM does have under Dovey-Divine the ability to show that they actually have negotiated this.

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If they've negotiated it away in favor of some other benefit, they have the discretion to do that under the Act.

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We acknowledge that.

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Dovey-Divine doesn't merely establish a standard of decision.

[00:16:22] Speaker 03:
It also shifts the burden of proof to OPM.

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OPM, at this point, the appropriate thing for them to do is to show an accounting of their negotiating objectives.

[00:16:32] Speaker 01:
But Dovey-Divine was a completely different case because that was someone suing regarding mental health treatment and which was a subset of comprehensive care which the statute requires to be covered, right?

[00:16:49] Speaker 03:
Well, your honor, in the words of this court, catastrophic coverage is required only as part of a broader FEHB objective to afford federal employees with the best possible health care at the lowest possible cost themselves.

[00:17:02] Speaker 03:
That's what this court had in mind when it was considering the fact that

[00:17:04] Speaker 03:
OPM is not only responsible for considering the availability of catastrophic benefits like the mental health benefits that were available there, but also other forms of benefits and the cost of the subscribers, the cost of the taxpayer, and the vitality of the program.

[00:17:18] Speaker 03:
All these things are factors that OPM must consider in the course of their negotiations.

[00:17:24] Speaker 03:
There has been no evidence.

[00:17:26] Speaker 01:
But there's no statute that you can point to or regulation that you can point to that says there has to be a negotiation over everything, right?

[00:17:35] Speaker 03:
I know, Your Honor, we're not saying that there has to be negotiation over everything.

[00:17:38] Speaker 03:
What we're saying is that under Section 3902, subsection I, there does need to be a reasonable relationship between the rates that are charged and the cost of the benefits that are provided.

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We're saying that here there's not a reasonable relationship because Mr. Heron and his family are paying essentially

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at the same rate as these large private sector employers and employees, but they're getting fewer benefits.

[00:18:05] Speaker 03:
You know, the private sector employers are getting benefits A, B, C, and D, whereas the federal employees are only getting A, B, and C. And OPM does not provide any actuarial basis for the failure to provide D. Your Honor, I see that my time has expired.

[00:18:19] Speaker 00:
All right, if there are no more questions, we'll give you a couple minutes.

[00:18:31] Speaker 02:
Good morning, may it please the Court.

[00:18:33] Speaker 02:
Judge Wilkins, I think you're exactly right.

[00:18:35] Speaker 02:
Under Doe v. Devine, this Court recognized that the negotiations for these kinds of plans, year in, year out, are very free-form.

[00:18:43] Speaker 02:
There's not a requirement, as this Court said, for a detailed record for study to advance justifications of each step taken or clearly ordered procedures.

[00:18:54] Speaker 02:
And as you were suggesting, Judge Mollett, to

[00:18:59] Speaker 02:
recognize the claim here would basically open the door to any federal employee who said, I wish that this were covered, to then sue.

[00:19:09] Speaker 02:
And it would really mire the courts, I'm afraid, in quite a degree of micromanagement of every plan provided every year.

[00:19:17] Speaker 02:
The fact is that there are plans available.

[00:19:20] Speaker 00:
Well, if someone argued that the secretary's administration of this

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process, this whole formulation of plans process, has been arbitrary and capricious.

[00:19:32] Speaker 00:
One example is, look at this.

[00:19:34] Speaker 00:
Everybody else has managed to cover durable medical equipment, but the secretary has utterly failed.

[00:19:42] Speaker 00:
That's one example.

[00:19:42] Speaker 00:
Here's another example.

[00:19:44] Speaker 00:
Here's another example.

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And simply brought an arbitrary and capricious challenge to the way in which the, I keep saying secretary, I'm sorry, the director has been handling

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this process.

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Could such a claim be brought?

[00:20:00] Speaker 00:
Would DOE allow that?

[00:20:01] Speaker 02:
I don't believe it would allow that kind of a claim unless it related to any of the kinds of care that Congress specifically provided for in the statutes.

[00:20:09] Speaker 00:
Well, it provided for that the plan is supposed to be comparable to what you have in the private marketplace.

[00:20:17] Speaker 00:
It's supposed to be competitive in that way.

[00:20:18] Speaker 00:
You're supposed to have

[00:20:21] Speaker 00:
It has things about cost-effective pricing, reasonable pricing, and so they simply said, imagine what came out, it's open season, and suddenly what you and I are looking at are five plans that are absolutely the worst in the entire country.

[00:20:37] Speaker 00:
They are three times more expensive than every other plan in the country, and the benefits are about 20% of what every other plan gets.

[00:20:46] Speaker 00:
It is an atrocious collection of plans,

[00:20:50] Speaker 00:
clearly evidencing a complete failure on the part of the director to do any of the negotiations for comparable coverage, for comparable reasonable pricing that the statute requires.

[00:21:00] Speaker 00:
In that situation, could someone go, you've just dropped the ball?

[00:21:05] Speaker 02:
So in that situation, as to the inadequacy of the rates, they would be able to advance that claim, or if they excluded catastrophic coverage.

[00:21:16] Speaker 00:
Those are things that the statute... The only thing we got is catastrophic coverage.

[00:21:20] Speaker 02:
But actually, I do want to correct one issue, which is that the provision, subsection I, that they're talking about comparability to private plans, that talks about the comparability of rates, not the comparability of benefits.

[00:21:34] Speaker 02:
And it is OPM's job, as numerous agencies have, to exercise its discretion.

[00:21:41] Speaker 02:
This is an area where I really do think that under Southern Utah Wilderness Association it really is well a very broad area of discretion for the agency.

[00:21:56] Speaker 02:
people were unhappy that OPM had not come up with a range of options that was successful or really suitable to them, then if it was too expensive, they have a claim.

[00:22:09] Speaker 02:
If it doesn't cover catastrophic care, they have a claim.

[00:22:13] Speaker 02:
If it is simply, well, I want this specific benefit.

[00:22:17] Speaker 00:
So if his claim were changed to, look, I shouldn't have to be paying for plans

[00:22:23] Speaker 00:
where the vast majority of the plan options that I have don't cover this most basic thing the same way everyone else does.

[00:22:30] Speaker 00:
I shouldn't have a plan.

[00:22:30] Speaker 00:
No one should be paying this rate for plans.

[00:22:33] Speaker 00:
They can't even do what every other plan does for durable medical equipment.

[00:22:37] Speaker 00:
We shouldn't be confronted with this.

[00:22:38] Speaker 00:
Then you're saying that claim could go forward?

[00:22:41] Speaker 02:
No, I'm not saying that.

[00:22:43] Speaker 02:
I'm saying that if the claim was that the rates in the federal plans were uniformly too high for the benefits provided relative to what the rates in the private plans are, then you would have a claim they could proceed with under the APA.

[00:23:02] Speaker 02:
But it's simply an argument that

[00:23:04] Speaker 02:
I want this specific benefit for this specific small subset of people.

[00:23:09] Speaker 02:
And in fact, plaintiff's complaint in paragraph three refers to the number of people who would get SGDs as, quote, a few.

[00:23:15] Speaker 02:
I mean, if every few people who want a specific item included, it all adds up.

[00:23:22] Speaker 00:
But does your claim matter if it's large?

[00:23:25] Speaker 00:
What if every woman wants mammograms covered?

[00:23:32] Speaker 00:
So it's large, it's not small, and you're not covering them, and everybody else does.

[00:23:37] Speaker 00:
And why are we having to pay for insurance plans that just don't cover, at any rate whatsoever, for plans that don't cover the same thing everyone else in the world does, and 50% of the population needs it?

[00:23:49] Speaker 02:
I mean, I want to say that I find the hypothetical very, very, very unlikely.

[00:23:53] Speaker 00:
I'm sure in time and history that it wasn't.

[00:23:55] Speaker 02:
I understand.

[00:23:56] Speaker 02:
But today, and also, I mean, at the time, we'd have to compare private plans at the time as well.

[00:24:00] Speaker 00:
There may have been... I'm just asking you whether that falls within your view.

[00:24:03] Speaker 00:
I'm not saying that's what they do.

[00:24:04] Speaker 00:
I'm just saying does that fall within your view of a type of challenge that could be brought?

[00:24:09] Speaker 02:
I don't think that that is a challenge that can be brought under the statute because an OPM has substantial discretion and I'd like to trust OPM.

[00:24:18] Speaker 00:
Substantial discretion, but is it unreviewable discretion or substantial discretion?

[00:24:21] Speaker 02:
It is, it's substantial discretion.

[00:24:23] Speaker 00:
This is a very broad mandate.

[00:24:25] Speaker 00:
Sure, substantial discretion can still be reviewed.

[00:24:28] Speaker 02:
Well, this is actually, this type of provision of the necessary and desirable standard that actually applies to what benefits are in and what benefits are out, that really isn't reviewable.

[00:24:41] Speaker 02:
What is reviewable again are the rates, the comparability of those rates to private plans.

[00:24:47] Speaker 02:
and whether or not catastrophic care has been excluded.

[00:24:52] Speaker 02:
That's what Congress provided for, and that's what the statute would allow for review under the APA for.

[00:24:56] Speaker 02:
There's no law to apply about which specific benefits in and which specific benefits out.

[00:25:01] Speaker 00:
Well, to back up on standing, so it's well known, I assume you agree, that courts can always

[00:25:09] Speaker 00:
evaluate standing on their own.

[00:25:10] Speaker 00:
We have an obligation to always look at standing, even if the parties haven't raised it.

[00:25:14] Speaker 00:
And the parties couldn't agree to standing for jurisdiction in any form if we didn't actually have it.

[00:25:21] Speaker 00:
Is there a reverse sort of postulate that says, when we look at standing, if we look at jurisdiction, and if there actually is jurisdiction, we have to acknowledge the jurisdiction we're assigned by Congress, even if the parties haven't made the right arguments?

[00:25:41] Speaker 00:
Imagine, hypothetically, we thought there is jurisdiction.

[00:25:48] Speaker 00:
We actually thought there was jurisdiction.

[00:25:49] Speaker 00:
Congress assigned us jurisdiction, and Article 3 is perfectly content with that jurisdiction.

[00:25:54] Speaker 00:
But the plaintiff didn't make the right legal argument in support of jurisdiction.

[00:25:59] Speaker 00:
Do we dismiss for lack of jurisdiction that we actually have?

[00:26:03] Speaker 02:
That's the place to start to improve jurisdiction.

[00:26:06] Speaker 02:
They need to put before the court what the court needs to see in order to be able to make that... Maybe, but lots of times we say parties haven't even realized there's a jurisdictional problem.

[00:26:15] Speaker 00:
We do, and we figure it out ourselves, and I'm just trying to figure out if this unique nature... The jurisdictional issue is not like normal issues.

[00:26:22] Speaker 02:
Correct.

[00:26:23] Speaker 00:
And I'm trying to figure out, is it a one-way ratchet?

[00:26:27] Speaker 00:
Is it only not normal in the sense that we can find the lack of jurisdiction regardless of what the parties say?

[00:26:32] Speaker 00:
Or can we actually also find jurisdiction regardless of what the parties say?

[00:26:35] Speaker 02:
It's the court's burden to prove the jurisdiction.

[00:26:38] Speaker 02:
It's not the court's burden to do it for them.

[00:26:42] Speaker 00:
So if the government were to come in a case and make the wrong argument for jurisdiction, but there actually was jurisdiction, and you're appellant now, and someone's just made the wrong argument for jurisdiction, but we actually had it.

[00:26:53] Speaker 00:
The court's duty at that point is to dismiss for lack of jurisdiction.

[00:26:56] Speaker 02:
Yeah, they haven't borne their burden.

[00:26:59] Speaker 02:
It's their burden to show to the courts that the courts have jurisdiction.

[00:27:03] Speaker 00:
Well, parties haven't borne their burden lots of times when we raise the issue sui esponti and then find it satisfied.

[00:27:09] Speaker 02:
I'd also add that as the court has stated in Defenders of Wildlife, just because the court reaches the merits where standing wasn't an issue doesn't mean that the court found that standing was an issue.

[00:27:23] Speaker 00:
No, I'm talking about cases where we've noticed a jurisdictional problem.

[00:27:27] Speaker 00:
discussed it, and then found it satisfied without the parties having raised the issue at all.

[00:27:32] Speaker 00:
We do that.

[00:27:33] Speaker 00:
So we don't always say, well, you didn't come forward and show it.

[00:27:37] Speaker 00:
We were able to find it in the record somehow.

[00:27:41] Speaker 02:
I understand.

[00:27:41] Speaker 02:
I mean, there certainly are times when the court will sui sponte consider whether jurisdiction exists and look at what it has before it and then say, fine, you have jurisdiction.

[00:27:50] Speaker 02:
But if the plaintiffs haven't put the necessary information before the court, which I believe is the case here, then that's a different situation.

[00:27:57] Speaker 02:
They do have the burden to make that showing.

[00:28:02] Speaker 02:
That's all I have.

[00:28:03] Speaker 02:
Is there anything, Your Honor?

[00:28:05] Speaker 02:
If the court has no further questions.

[00:28:06] Speaker 00:
You didn't argue waiver, by the way.

[00:28:08] Speaker 02:
You certainly raised multiple times in our brief that this was a newly raised argument on appeal.

[00:28:14] Speaker 01:
And in your motion for summary affirmance, once they raised procedural injury in their opposition to the motion, you said that that argument wasn't properly before the court gave you a reply, right?

[00:28:26] Speaker 02:
I believe so, yes.

[00:28:28] Speaker 02:
So we have done what we... I'm just asking between forfeiture and waiver.

[00:28:32] Speaker 00:
I think you pretty clearly argued forfeiture.

[00:28:37] Speaker 01:
Thank you.

[00:28:37] Speaker 00:
Thank you.

[00:28:39] Speaker 00:
Does Mr. Fleming have it?

[00:28:46] Speaker 00:
Okay.

[00:28:47] Speaker 00:
Mr. Fleming, why don't you take two minutes?

[00:28:49] Speaker 00:
You're out of time, but take two minutes.

[00:28:50] Speaker 03:
I appreciate it, Judge.

[00:28:51] Speaker 03:
Thank you.

[00:28:55] Speaker 03:
Your Honors,

[00:29:00] Speaker 03:
One of the factors that opium is talking about is that this is a

[00:29:13] Speaker 03:
OPM needs to include a certain benefit and if they're allowed to do that it's just going to start to add up.

[00:29:20] Speaker 03:
This is actually a very specific and unique case in large part because this is a very specific exclusion that is included in many of these plans and OPM has been aware of it.

[00:29:30] Speaker 03:
in the GEHA plan on page, the GEHA brochure on page 66 and 67 of the Joint Appendix, the GEHA specifically talks about what they're gonna qualify as the Drupal... Well, I'm just trying to figure out, you know, we have to write an opinion.

[00:29:46] Speaker 00:
And so you have to give us a legal rule that we could put in an opinion.

[00:29:49] Speaker 00:
How would we write an opinion that would say, normally folks don't have standing, but because this is a small group, and as to that small group,

[00:30:00] Speaker 00:
It wouldn't take much to just, no one would even notice financially if you just included their benefit in.

[00:30:05] Speaker 00:
In those circumstances, people have standing.

[00:30:07] Speaker 00:
Is that the rule you want us to adopt?

[00:30:09] Speaker 03:
No, Your Honor.

[00:30:10] Speaker 03:
So the rule, first off, it would be appropriate for this Court to point out that while OPM does have some discretion for how negotiations are conducted,

[00:30:20] Speaker 03:
and what the result of those negotiations are, their discretion is bounded by the statute, and there has to be that reasonable relationship between the rates and the benefits that are provided.

[00:30:30] Speaker 03:
It doesn't make sense, by the way, to talk about comparable rates without talking about comparable benefits under that logic, as long as, you know,

[00:30:37] Speaker 03:
You know, employees are paying comparable rates.

[00:30:40] Speaker 03:
It doesn't matter if they just, you know, they get band-aids as their healthcare, as long as they're paying a comparable rate, that logic is fine.

[00:30:48] Speaker 03:
But the second point that the court would make in its opinion is that where there is not that reasonable relationship is demonstrated by the fact that all these large private sector players are covering this specific benefit.

[00:31:00] Speaker 03:
And OPM, first off, knows that its employees are not getting that benefit because the exclusion limitation has been specifically brought to their attention.

[00:31:09] Speaker 03:
And the fact that, you know, they have not demonstrated any negotiation to either obtain that benefit or get some other benefit out of it.

[00:31:19] Speaker 01:
Okay, didn't they issue the call letters that specifically request this benefit in the quotes?

[00:31:27] Speaker 03:
Your Honor, I would disagree with that characterization of the call letter.

[00:31:30] Speaker 03:
First off, this is actually not the first time this court has confronted the purpose of the call letters.

[00:31:34] Speaker 03:
In National Federation of Government Police who defined footnote one, this court recognized that the purpose of the call letters is merely to remind carriers of the regulatory obligations under renewal.

[00:31:45] Speaker 03:
Second off, they didn't request the benefit.

[00:31:47] Speaker 03:
They merely encouraged providers to review their policies towards covering these devices.

[00:31:53] Speaker 03:
Now, to get back to my original point about the specific exclusion, in the GHA plan, there are specific things that are listed or identified as examples of durable medical equipment.

[00:32:05] Speaker 03:
A quintessential example is a wheelchair.

[00:32:07] Speaker 03:
It's something that is used for a prolonged period of time.

[00:32:10] Speaker 03:
It's medically necessary, used only by the individual who is sick.

[00:32:15] Speaker 03:
and is generally prescribed by a physician or a professional.

[00:32:20] Speaker 03:
If you turn to the next page, they list the specific exclusions.

[00:32:22] Speaker 03:
They talk about the specific devices that are excluded.

[00:32:25] Speaker 03:
First one is the durable medical equipment.

[00:32:27] Speaker 03:
Other examples include weights for weight lifting or other exercise equipment and weights.

[00:32:33] Speaker 03:
Now, this would be an entirely different case if OPM had asked these carriers a very specific question.

[00:32:40] Speaker 03:
Why is a speech-sharing device more like a wig than a wheelchair?

[00:32:46] Speaker 03:
This is a device that Mr. Huron needs in order to live.

[00:32:49] Speaker 03:
It's a device that he needs in order to be able to communicate with his clients, to talk with his coworkers, and speak with his children.

[00:32:54] Speaker 03:
And it's prescribed by a speech-language pathologist.

[00:32:58] Speaker 03:
It's something that's used for a prolonged period of time.

[00:33:00] Speaker 03:
And it's something that is only usable by him for his medical condition, primary lousy sclerosis.

[00:33:05] Speaker 03:
There's no basis for excluding this and treating it as though it's just a...

[00:33:11] Speaker 03:
a wig or exercise.

[00:33:14] Speaker 03:
That's simply unreasonable.

[00:33:16] Speaker 03:
It is unreasonable for OPM to acquiesce to the carriers who are merely saving themselves a couple of extra bucks by not providing this benefit to federal employees when the same plan sponsors are providing it for the employees of large private sector employers.

[00:33:36] Speaker 00:
I understand my time is up.