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 Management (“OPM”) negotiates and regulates health benefit plans 

that are offered to federal employees. Most federal employees 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 federal 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 individuals 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 notice-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 Senator Ron Johnson, of Wisconsin, and his legislative counsel, 

Brooke Ericson, filed suit in federal court to enjoin the enforcement and implementation of the OPM rule. They contend that the rule is contrary to the ACA and other law because 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 exchange reserved for small businesses.

The defendants—OPM and its director, Katherine Archuleta (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 responsibility 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 contributions, like all employer contributions to employersponsored group health insurance, are tax free.

Members of Congress and their staffs (collectively,

“Members”) are among those defined by the FEHBA as federal 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 congressional staff shall be health plans that are—

(I) created under this Act (or an amendment made by this Act); or
4 No. 14-2723

(II) offered through an Exchange established 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 fulltime 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. Congress took this action, they say, “to address criticisms that it 

was reserving special ‘Cadillac’ benefits for itself or was unwilling 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 rulemaking 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 individual is determined by the employing 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 determined 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 participation 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 “Congress” or “the federal government,” according to the plaintiffs—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 eligible to participate in a SHOP regardless of the size and offering 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 Medicare & Medicaid Servs., Affordable Insurance Exchange 

Guidance (Sept. 30, 2013), available at
6 No. 14-2723

http://cms.gov/CCIIO/Resources/Fact-Sheets-andFAQs/Downloads/members-of-congress-faq-9-30-2013.pdf 

(last visited Apr. 13, 2015, as were all websites in this opinion). 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 unlawful 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 argue, does not extend to the plans available to Members. Second, they argue that the Rule violates the ACA because it allows 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 entitlement to equal treatment” with Senator Johnson’s constituents who purchase insurance on individual ACA exchanges.

In response to the plaintiffs’ complaint, OPM filed a motion to dismiss, arguing that the district court lacked subject 

matter jurisdiction because the plaintiffs do not have standing 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 reasoned that they “receive, at worst, a benefit” from the regulation. 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 challenge 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 favorable 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 offense 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 injury 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 independent injuries that are traceable to the challenged OPM 

Rule. First, they argue that the Rule imposes an administrative 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 basis. 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 treatment” which is unavailable to his constituents. We will examine each of those alleged injuries in turn.

a. Administrative burden

According to the plaintiffs, the OPM Rule places an administrative burden on Senator Johnson and his staff because it requires them to determine which of Senator Johnson’s staff are “congressional staff.” The government, in contrast, 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, because, 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 alleged, a plaintiff must demonstrate, in addition to redressability, 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 requirement 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 neighboring provision—§ 319(a), an “asymmetrical contribution limit.” Id at 733–34. Rather, the Court required the plaintiff in 

Davis to separately show injury, traceability, and redressability 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 successful. 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 nonEnglish 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 administrative 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 conduct 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 registration 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] expresses any intention of changing his name”).

Applying that rule to this case, the plaintiffs’ alleged administrative burden cannot support their standing to challenge 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 challenge—namely, the availability of tax-free government contributions, Congress’s eligibility for a SHOP exchange, and 

an equal protection violation. Put differently, plaintiffs’ administrative 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 aspects of the Rule, none of which are related to their administrative burden, are substantively unlawful. The relevant 

“conduct” that they challenge, therefore, is not the enactment 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 Supreme 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 demonstrate 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. Because their injury derives from that indivisible Rule, they argue, 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 administrative 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 administrative 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 plaintiffs 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 inquiry. Nothing in Davis suggests that the Court’s standing 

analysis would have been any different had the BCRA’s disclosure provision and asymmetrical campaign contribution 

limit been found in the same statutory subsection. The reason 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 remedy—vacatur of the OPM Rule as a whole—that would coincidentally eliminate their alleged injury likewise does not 

impact our standing analysis. Although vacatur is the presumptive remedy for a violation of the Administrative Procedure 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 remedy. See Sierra Club v. Van Antwerp, 719 F. Supp. 2d 77, 79 

(D.D.C. 2010) (ordering partial vacatur of an agency’s arbitrary 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 plaintiffs’ alleged injury would not provide them with standing to 

challenge aspects of that Rule that have not caused them injury. 

b. Equal protection

The plaintiffs next assert an injury based on “being denied 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 ... statutory 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) (citations and internal quotation marks omitted). 

To discern whether a statute creates legal rights, we must 

determine “whether or not Congress intended to confer individual 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 enforcement 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 constituents. 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’ constituents 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 amorphous.” 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 similarlysituated 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 plaintiffs did not mention a statutory right to equal protection in their complaint. 

On appeal, however, plaintiffs seem to have changed their position. 

At times they suggest that they have a right to equal treatment with Senator Johnson’s “constituents,” a much larger comparator group than they

suggested in their complaint. Elsewhere in their briefs, however, plaintiffs suggest that the comparator group is those constituents who purchase insurance off of individual ACA exchanges. This second alternative 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 constituents. Focusing on “constituents who purchase insurance off of ACA individual 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 individuals. 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 district court reasoned that, apart from any hypothetical electoral/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 benefit,” which cannot be considered an equal protection injuryin-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 Senator 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 threatened them with) reputational and electoral harm, they

would still have a judicially cognizable injury merely because 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 injuryin-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 unequal playing field that affects a plaintiff’s pursuit, she must 

identify some disadvantage to meet the constitutional requirement 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, plaintiffs have had to show that the challenged classification creates a “barrier that makes it more difficult for members of 

one group to obtain a benefit,” Ne. Fla. Chapter of the Associated 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 requires in order to ensure that the plaintiff has “such a personal stake in the outcome of the controversy as to warrant 

his invocation of federal-court jurisdiction and to justify exercise 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 correct that they could establish standing based merely on differential treatment, a party that benefited from a classification 

would, in theory, be able to challenge its validity. Such a result would fundamentally contradict the principle of standing.”); 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 “reputational 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 statute.” 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 electoral 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 complain that a directive by their superiors required them to decide Social Security cases in a manner contrary to law because it required them to do less than they thought was legally 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 illegal action. To support this position, Senator Johnson relies 

2 Senator Johnson contends that these decisions are contrary to the Supreme Court’s holding in Craig v. Boren, 429 U.S. 190 (1976), which he

argues stands for the proposition that individuals have standing to challenge 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 statement 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 Representative Boehner, he has standing despite the fact that the conduct he challenges provides him with a monetary benefit,

because that conduct forces him to engage in illegal behavior, which he alleges will cause him reputational and electoral 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 automatically; here, in contrast, Senator Johnson will receive the purportedly 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 precisely what he wants—an unsubsidized health plan purchased 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 injury 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 refuspolitical, and professional reputation would suffer and his ability to obtain 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 standing because his First Amendment right to exhibit the films was chilled, as

doing so while they were designated as propaganda would hurt his reputation 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 exercising 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, supporting 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 political standing will be diminished by his accepting (or simply being offered) the benefits he claims are illegal.

 
22 No. 14-2723

ing the benefits that he alleges to be illegal. Such an avoidable 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 decline federal healthcare benefits, so too could Representative

Boehner have either declined to accept his illegal pay increase 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: Congressional Votes, 1990–2014, at 3 n.10 (2014), available at 

http://fas.org/sgp/crs/misc/97-615.pdf. It is true that Representative 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 illegal 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 elected, 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 receipt of certain benefits will cause him or her political harm; 

it held that “it [is not] 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.” 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 because 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 compensation 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. Circuit’s analysis in Boehner, and conclude that a political figure’s assertion, without more, that the receipt (or option of 

receiving) a benefit will hurt his or her reputation or electoral prospects is insufficient to establish standing. Respectfully, 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 reputational harm, therefore, is much too “conjectural or hypothetical” to constitute the type of concrete injury that is required 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.