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EEOC May Determine if Agency's LTC Contract is Discriminatory

Long Term Care Partners, LLC v. United States, 516 F.3d 225 (C.A. 4, Feb. 5, 2008)

Long Term Care Partners, LLC (“LTC”) entered into an agreement with the federal Office of Personnel Management (“OPM”) to provide long-term care insurance to eligible federal employees and their qualified relatives pursuant to the Long Term Care Security Act ("Act"). The program did not provide universal coverage, but instead required individuals to apply for coverage. The OPM-approved application form stated that use of a wheelchair would render the applicant ineligible for coverage.

A paraplegic federal employee who used a wheelchair nevertheless completed an application. LTC denied coverage and affirmed the denial on reconsideration. The employee filed an EEOC complaint against OPM, alleging that OPM’s contract with LTC amounted to unlawful discrimination under the ADA. The EEOC rejected OPM’s argument that the claim amounted to an impermissible collateral attack on an unfavorable insurability decision by LTC.

LTC then filed suit in District Court (D.Md.) to enjoin the EEOC from asserting jurisdiction over its insurability decisions. It argued that such jurisdiction was contrary to the Act. The District Court disagreed and dismissed the lawsuit. LTC appealed.

The Court of Appeals first addressed LTC’s contention that the Act precluded EEOC from acting as it did. The statute precludes review of a carrier’s eligibility determinations except as provided in the applicable master contract. The Court explained, however, that the EEOC had repeatedly distinguished between review of insurability determinations and scrutiny of OPM’s participation in allegedly discriminatory contracts.

The Court acknowledged that provisions of both the Act and the ADA precluded the EEOC from reviewing an insurer’s decision regarding insurance eligibility. However, the Court agreed with the govenment's distinction between reviewing an individual eligibility determination and reviewing a "macro issue" of participation in a discriminatory contractual relationship. The Court held that EEOC had not violated the statutory provisions.

LTC also argued that the statutory bar against review of insurance eligibility decisions constituted a form of sovereign immunity, and that EEOC breached that immunity by bringing an action against LTC's contractual partner, OPM. The Court found this argument overbroad and inaccurate. First, LTC was not a sovereign. Second, no immunity was implicated by EEOC’s review of OPM’s contractual relationships.

The dismissal of LTC's complaint was affirmed.


Judge(s): Karen J. Williams, Allyson Kay Duncan, and Raymond A. Jackson; Opinion by Duncan
Jurisdiction: U.S. Court of Appeals, Fourth Circuit
Related Categories: Administrative Law , Civil Rights , Conflict of Laws , Employment , Government / Politics , Insurance
Appellant Lawyer(s) Appellant Law Firm(s)
Anthony Shelley Miller & Chevalier Chartered

Appellee Lawyer(s) Appellee Law Firm(s)
Matthew Miles Collette U.S. Department of Justice



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inherent in the sovereign immunity doctrine nor its rationale of shield- find that there had been no violation of a clear and specific statutory a reasonable one. in deciding it, we need not reach the ultimate merits find that ltc partners has met its burden of providing that it has 1319, 1322 (4th cir. 1983); fort sumter tours, inc. v. andrus, 564 f.2d side the scope of their delegated powers and contrary to "clear and jurisdictional inquiry could dictate the result. id. (citing ashwander v. springer, e.e.o.c. doc. 0520060303, 2007 wl 1661122 (may 24, for the fourth circuit clude that the distinction between review of insurability decisions and nesses over a certain size. id. at 504-05 (citing 42 u.s.c. 2000e(b) old jurisdictional issues. the court reasoned that a forum non conve- diction over its contractual partner, opm. ltc partners argues that whether brought against ltc partners or its contractual partner, 9003(c)(2). to hold otherwise, the ofo found, "would be to allow 232, 243 (1980); see also eastman kodak co. v. mossinghoff, 704 f.2d exception in leedom is limited; it is properly invoked only where the the court held that a federal court may properly address forum non directly prohibit review of opm's actions under the program or of instead, i would first consider that question and answer it in the void as in excess of eeoc's statutory jurisdiction and authority," and a 10 to be redressed by a favorable decision is so close to the merits that section 10(c) of the apa, 5 u.s.c. 704, is not jurisdictional. tru- issue of whether the defendant had fifteen or more employees was not in the wake of arbaugh, at least two circuits have considered ralph rouse, may be granted. see federal rule of civil procedure 12(b)(6). dismissal 9(b)(1), 29 u.s.c. 159(b)(1)). in spite of this prohibition, the opm. in presenting this argument, ltc partners analogizes its right thorny standing question in that case. id. following this approach, the 14 long term care partners v. united states tive," that the injury will be "redressed by a favorable deci- states constitution, a plaintiff must establish that a `case or contro- crimination prohibited by this subchapter (such relationship "the standing requirement is designed to guarantee that the plaintiff tion for the purpose of deciding the merits of the case," id. at 94. ous deficiency that ltc partners is a private party and not a sover- advisory opinion; this illustrates the chronological differences opinion concurring in part and dissenting in part and concurring in the keisler, assistant attorney general, rod j. rosenstein, united states mandatory" statutory prohibitions. 358 u.s. at 188-90. the finality we will find that it did not "violate a clear statutory mandate," han- annuitants. opm effectuated the mandate of the ltcsa by establish- ated a bright-line rule for analyzing whether a statutory provision as articulated by the statute: "congress intended that contractual rela- that general allegations embrace those specific facts that are necessary any suggestion that the proceedings in fornaro and james deprive ltc care insurance coverage under this chapter shall be subject to review under the ada, 42 u.s.c. 12112, which it found undisrupted by the does not mean that the distinction is artificial, however, for, as the ees, without obtaining the professional employees' consent. id. at under 704, we lacked subject matter jurisdiction over challenges to also fails logically in likening the insulation of an entity (the sover- meet the first requirement, the party must demonstrate an "injury in of the plaintiff's case, each element must be supported in the same abraham, 300 f.3d 432, 444 (4th cir. 2002). the existence of lee- having concluded that ltc partners has standing to maintain this administrative litigation whether or not it is a party to the proceed- cio v. fed. serv. impasses panel, 437 f.3d 1256, 1264 (d.c. cir. a result, the court concluded that the record before it contained no als of coverage to wheelchair users under the program did not violate the diction to "cases or controversies," u.s. const. art. iii, 2, not "cases "[t]he doctrine of standing is an integral component of the case or at this stage of the litigation, is sufficient to show injury in fact. the 100-2005-00025x (e.e.o.c. october 27, 2005) (order denying eeoc. see mcorp, 502 u.s. at 43. we review de novo the district ada or any other provision of law, and (2) that ltc partners' rejection partners' claim, holding that the limited exception to the finality securities act of 1933). amended complaint, reasserting its original challenge to eeoc jurisdic- jurisdiction, highlighting its responsibility to police opm's actions ments regarding the proper interpretation of the disputed statutory 10 long term care partners v. united states den of proving that the equal employment opportunity commission in proceedings before an eeoc administrative law judge ability decisions not made the subject of any eeoc proceeding, eeoc's office of federal operations ("ofo") rejected opm's argu- suit (subject matter jurisdiction) and the parties (personal jurisdic- apa provides for judicial review of the nonfinal ruling is not one of justice, washington, d.c., for appellee. rouse. see fornaro v. blair, e.e.o.c. doc. 01a53949, 2005 wl those proceedings. the district court ultimately granted ltc partners' (1971), and dismissal of certain suits against the government under whether or not a particular individual is eligible to obtain long-term it is tempting to put aside the differences between the two inquiries any action broader in scope than a determination as to a particular partners of an adequate forum in which to defend its substantive interests which there is no other adequate remedy in a court." 5 u.s.c. 704.10 therefore affirm. f.3d 852 (4th cir. 2002), we held that, absent final agency action age. rouse, a paraplegic who used a wheelchair, responded to the williams, chief judge, concurring in part and dissenting in part role of the carrier, opm's role in the administration of the program iii. moreover, the court has cautioned that inquiry into the merits can- tural' or `hypothetical.'" second, there must be a causal con- review of its eligibility determinations under the ltcsa. however, ltc court. absence of federal court jurisdiction over an agency action "would in leedom, the supreme court recognized a nonstatutory exception auer v. reich, 82 f.3d 1304, 1311 (4th cir. 1996), and leedom juris- grounds for denying audience to a case on the merits." sinochem int'l opm's participation in the master contract, ltc partners concludes, b. v. erless to overturn insurers' decisions "strictly concerning an individu- the court below found merit in the eeoc's distinction between court has found that, "[w]hen the suit is one challenging the legality d.c., for appellee. on brief: alan i. horowitz, miller & che- contract.5 leedom v. kyne, 358 u.s. 184 (1958), did not apply. we agree and vene in the ongoing proceedings in fornaro or james. instead disclaiming the argument and training the court's sights solely with the majority's conclusion, in part iii.b, that ltc partners cannot c.f.r. pt. 875, contracting thereunder with "qualified carriers" for the first, the plaintiff must have suffered an "injury in fact" - an question of standing is whether the litigant is entitled to have the court eeoc claim and sought relief against opm in federal district court, later whether a case presented an article iii case or controversy. id. at an agency's decision making. id. at 857. importantly, we also congress intended to authorize opm to dispense with its non- egy cannot alone amount to an exceptional or extraordinary circum- may not be compelled, but it is certainly a "plausible" one, reached specific, and mandatory prohibition of 5 u.s.c. 9003. see id. ("a fits to an employee of the covered entity, or an organization tionships of a covered employer be scrutinized for whether they dis- u.s. 139, 145 (1993)). partners' participation in rouse, along with the past granting of its missal `den[ies] audience to a case on the merits,'" and "is a determi- requirement in title vii, is "nonjurisdictional in character." arbaugh, partners' insurability decisions set forth in the ltcsa and the master alleged injury; ltc partners requested a declaration that the eeoc's the eeoc's jurisdictional decision on ltc partners is, at best, tenuous. 704 falls on the non-jurisdictional side of arbaugh's bright-line "assertion of jurisdiction to review insurability decisions . . . is void" ity determinations. under these circumstances, we find that the record on appeal, the government first contends that ltc partners lacks disavowed this claim in the proceedings below, labeling it a "straw- (1958), without first considering whether ltc partners possesses a clear, specific and mandatory statutory provision. see newport cerned an attempt to enjoin the rouse proceedings but instead shifted requirements access to a federal forum simply because it appears that that an adverse immunity determination would "wholly deprive the applicable master contract." 5 u.s.c. 9003(c)(2). ltc partners purposes of res judicata. see federal rule of civil procedure 41(b). review of opm's participation in allegedly discriminatory contractual because the court first found that "[a] forum non conveniens dis- inc., 502 u.s. 32, 43 (1991). some cases, such as this one, illustrate that the distinction between an attempted exercise of power that had been specifically withheld." the insurance policies issued by the carrier. 9003. whether opm has participated in a contract which makes disability- menting regulations. ltc partners sought (1) a declaration that the aggrieved applicant may file suit against the carrier in federal district force or practical effect" on ltc partners other than "the disruptions that insurability determination. an applicant denied coverage can submit standing to bring this action. eastern district of virginia, sitting by designation. "confuse[d] jurisdiction under the americans with disabilities act valier, chartered, washington, d.c., for appellant. peter d. opinion 2006) (applying arbaugh and finding that the district court properly under the master contract. effect on the plaintiffs. here, as already noted, the immediate impact of exercised jurisdiction in a case involving alleged violations of the the denial on reconsideration, j.a. 268.4 (1st cir. 2000) (noting that, on the facts presented, "the issue of stand- united states of america, covered employees are responsible for the entire cost of insurance, instead of filing a complaint v. action of the defendant, and not . . . th[e] result [of] the inde- eral law or discriminates against whole groups of individuals on the a statute's scope shall count as jurisdictional, then courts cannot hear cases that do not comport with article iii of the constitu- ing." 422 u.s. at 500. in a similar vein, we have recognized that a rights would be lost without an early and authoritative ruling." id. at instead rests its decision on the ground that the eeoc's actions do not relations board ("nlrb"). the statute provided that the nlrb acted contrary to a clear and mandatory requirement in the ltcsa. standing to pursue its claim that the eeoc is exercising jurisdiction court jurisdiction must show that (1) it has suffered an injury in fact, dom, rendering both nonjurisdictional. u.s.c. 9007, rouse filed a formal eeoc administrative complaint tered, washington, d.c., for appellant. matthew miles collette, though not relevant here, the apa also provides that a court may agency action" under the administrative procedure act ("apa") and and james--were presented in ltc partners' first amended com- missible collateral attack on an unfavorable insurance decision. in iii. of rights it confers against agency action taken in excess of delegated weighs heavily in favor of dismissal, whereas the standing issue here was decided, see reliable automatic sprinkler co. v. consumer prod. company.2 man argument" offered by the government, pl.'s opp. mot. dismiss which judge jackson joined. chief judge williams wrote a separate "change in the complexion of the case" over the course of time. reply to "set out" by affidavit or other evidence "specific facts" to support inquiry is governed by the ada, 42 u.s.c. 12112(b)(2), and is 4 long term care partners v. united states 11long term care partners v. united states argued: anthony f. shelley, miller & chevalier, char- insulated from scrutiny so long as they are not "used as a subterfuge iv. rouse, fornaro, and james reflect the eeoc's determination that from the defendant's conduct may suffice," because courts "presume arbaugh did not specifically address 704 of the apa, the court did wl 1393631, at *4; see also fornaro, 2005 wl 3038227, at *2. the having concluded that 704's "final agency action" requirement erwise not in accordance with law." (j.a. at 91.) such an allegation, rule. see trudeau v. fed. trade comm'n, 456 f.3d 178, 183-84 & stration" of a violation of a clear, specific and mandatory statutory against the carrier in federal district court, as was his right under 5 the program does not provide universal coverage. 9002(e)(3). on leedom, was a matter of strategy. a mid-litigation change in strat- was "clear and mandatory," stating that such action was "[p]lainly . . . court's dismissal of this claim. suter v. united states, 441 f.3d 306, ning the risk of rendering the merits inquiry nothing more than an tecting insurers' risk-based eligibility judgments. such judgments are 20 long term care partners v. united states ltc partners' challenge to the eeoc's assertion of jurisdiction, new claim as it pertained to the united states for lack of subject matter fine one. see, e.g., town of norwood v. f.e.r.c., 202 f.3d 392, 406 v. am. int'l specialty lines ins. co., 443 f.3d 334, 338-39 (4th cir. has recognized that these statutory provisions render the eeoc pow- carrier's [eligibility] determination[s] . . . shall be subject to review majority declines to answer whether ltc partners has standing and partners cannot show our failure to act in this case "would wholly its statutory right to enjoy limitations on review of its insurability 12 i join in full in parts i, iii.b, and iv of the majority opinion and, action" under 704 of the administrative procedure act ("apa") is the eeoc is engaging in the prohibited act of reviewing its insurabil- effect on the eeoc's authority to hear cases like fornaro and james. leedom. see boire v. greyhound corp., 376 u.s. 473, 481 (1964). more employees")). the district court had determined, after trial, and under this chapter shall be subject to review only to the extent and in to deciding the question of ltc partners' standing represents the very in sum, given that this case remains at the pleading stage, i would i. partners to meaningfully assert its purported right to enjoy limitations on (1975). and listed wheelchairs as a specific example. j.a. 256. the form of arbaugh v. y & h corp., 546 u.s. 500 (2006), "final agency coverage, constituted unlawful discrimination by the agency. v. springer, no. 06-2088 (d.d.c. filed dec. 8, 2006). we recognize that statutes." james, 2007 wl 1393631, at *4. finding eeoc jurisdic- also nulankeyutmonen nkihtaqmikon v. impson, 503 f.3d 18, 33 (1st advancing to the non-jurisdictional ground of 704 of the apa prior we analyze this issue in connection with ltc partners' leedom argu- sion] has been violated." newport news shipbuilding and dry dock 511, 525 (1985) (describing public service-focused rationale for qualified riers' insurability decisions to opm. 5 c.f.r. 875.407. ing the sovereign from "the indignity of [being] subject[ed] . . . to the of substantive law-declaring power." sinochem, 127 s. ct. at 1192-93 to evade the purposes of [the ada]." 42 u.s.c. 12201(c). the ofo the carrier's eligibility determinations are subject to means of vindicating its statutory rights." bd. of governors, fed. would be too amorphous to carry much weight in an apa analysis. agency action" requirement contained therein, like the numerosity ltc partners' eligibility determinations, the eeoc violated the clear, sidered the provision of title vii limiting its applicability to busi- ltc partners also moved to enjoin proceedings in rouse and sought ment of the case-or-controversy limitation on judicial authority found at 9, calling discussion of it "beside the point," id., and acquiescing cock or metlife reviews that decision. the individuals reviewing the guage of the ada. see hanauer, 82 f.3d at 1311. the provision also fails to satisfy the second requirement for leedom jurisdiction.11 ltc partners' insurability decisions and the related proceedings are dom itself, permitting "federal district courts [to exercise] subject ltc partners alleged that it is being injured by the eeoc's exercise gated powers and contrary to a specific prohibition in the act" that a duty to probe ltc partners' standing to appear before the court. over the claims filed by ralph d. rouse, jr. and others, is in fact however, standing implicates this court's subject matter jurisdiction, federal employees against the office of personnel management this argument is severely undercut by provisions of the ada pro- side the [agency's] jurisdiction," counsel in favor of finding that ltc if the legislature clearly states that a threshold limitation on ful and adequate means of vindicating its statutory rights," mcorp, requirement for review of administrative agency action outlined in "shall not . . . decide that any unit is appropriate for [collective bar- 310 (4th cir. 2006). leedom's first prong. i concur in the judgment of the court, however, partners' complaint alleges that the eeoc, by exercising jurisdiction injury. and ltc partners' requested relief is likely to redress the ably upon whether the plaintiff is himself an object of the action (or decide this case on the basis of our analysis of ltc partners' leedom tion that particular conduct is illegal." warth, 422 u.s. at 500. ltc 12 long term care partners v. united states ing. the question of ltc partners' standing does impact our subject encompass more than a mere defense from liability--they include an tobacco, that failed to apply a bright-line clear statement rule for of government action or inaction, the nature and extent of facts that action is not jurisdictional"); r.i. dep't of envtl. mgmt. v. united coercive process of judicial tribunals at the instance of private par- ity determinations. ltc partners argues, in the alternative, that the eeoc's exercise we agree with the conclusion urged by the government and discriminatory obligations under civil rights statutes." james, 2007 alleged that the eeoc had asserted jurisdiction over ltc partners' that after rouse abandoned his eeoc claim, this case no longer con- of ltc partners' eligibility determination in an individual case. see ("eeoc") is violating a clear statutory mandate, in satisfaction of administrative appeals process as the only avenue for appeal of an more basic question of whether there is a "strong and clear demon- of such professional employees vote for inclusion in such unit." lee- tobacco has been called into question somewhat by arbaugh v. y & does not contain a "strong and clear demonstration" of a violation of is suffering a cognizable injury. s.c. state ports auth. v. n.l.r.b., contract." 5 u.s.c. 9003(c)(2). ltc partners argues that in exercis- is likely, and not merely speculative, that the injury will be redressed in any event, "final agency action" here would necessarily entail the in this case, the statute provides, "a carrier's determination as to mate inquiry: whether a claimant was subjected to discrimination ing inquiry. flue-cured tobacco coop. stabilization corp. v. epa, 15long term care partners v. united states could not show that the eeoc's exercise of jurisdiction in rouse, following exhaustion of these administrative remedies, a still- opm's motion to dismiss); j.a. 106-07. under relevant sections of (emphasis added) (quoting ruhrgas ag v. marathon oil co., 526 432 f.3d 294, 298 (4th cir. 2005) (internal quotations omitted). inc. v. consumer prod. safety comm'n, 707 f.2d 1485 (d.c. cir. 1983), partners, under which rouse was denied long-term care insurance naro and james. plaint, rouse alleged that opm's contractual arrangement with ltc must be [alleged] . . . in order to establish standing depends consider- standing grounds. this court previously determined that analysis of to a decision of the case.") (internal quotations omitted). we therefore and source of the claim asserted," it "in no way depends on the merits defendant. eeoc claims (and the majority agrees) that the eeoc is actually not failed to state a claim, not that it lacks standing to bring such a claim. a. it is difficult to see how eeoc's assertion of jurisdiction over opm, the director of underwriting for ltc partners described this review agency, labor union, an organization providing fringe bene- versy' exists," smith v. frye, 488 f.3d 263, 272 (4th cir. 2007), and v. represent "final agency action," and that ltc partners failed to prove "are not mere pleading requirements but rather an indispensable part over its insurability decisions in a manner contrary to law. does not impact our subject matter jurisdiction, we must next decide and it may therefore be appropriately considered on appeal. fed. r. providing training and apprenticeship programs)[.] united states department of justice, washington, also fornaro, 2005 wl 3038227, at *2. the ofo found "no indica- pleading contains an allegation that the plaintiff is the object of the on the employer's motion, that it lacked subject matter jurisdiction action," and that, even if a finding of waiver were inappropriate, no has caused him injury, and that a judgment preventing or requiring the matter jurisdiction, for standing is "an integral component of the case review of opm's participation in a contractual arrangement that has merits-based ground for dismissal.* ltc partners' insurability decisions when it examines opm's participa- challenge to its jurisdiction leveled by opm in rouse, fornaro, and requested permission to intervene. rouse subsequently abandoned his arbaugh, i believe it is better categorized as "an element of a plain- favor of dismissal." id. at 1194. such a holding was permissible only columbia has held that the requirement of final agency action under because it has no meaningful and adequate means, apart from this liti- provision or that it is specific and clear as it pertains to carriers' eligi- 3 pursuant to its authority under the ltcsa, opm entered into a eeoc from asserting such jurisdiction.7 tion in [the] language or in the legislative history [of the ltcsa] that rouse's physician and subsequent reconsideration by ltc partners' assumption of jurisdiction by the equal employment opportunity co. v. nlrb, 633 f.2d 1079, 1081 (4th cir. 1980) (internal quotations whether a case presents "final agency action" should precede a stand- ward creation of a self-aggrandizing administrative agency. demonstration that a clear, specific and mandatory [statutory provi- ceedings. the "chilling effect" of the eeoc's action on ltc partners' eeoc was without jurisdiction to review insurability decisions made commission ("eeoc" or "commission") over actions brought by coverage determinations and the propriety of the overarching contract is limited. 5 c.f.r. 875.106, .107. opm does not make insurability 347 (brandeis, j., concurring) ("it is not the habit of the court to opposed to conjectural or hypothetical. lujan, 504 u.s. at 560-61. tions attending whatever participation is required of it in the eeoc pro- stance that might nullify waiver and justify review.13 according to ltc partners, this broad inquiry and all of its compo- way as any other matter on which the plaintiff bears the burden of audience to a case on the merits" and "is a determination that the mer- we begin by examining ltc partners' argument that the eeoc and a declaration that "the eeoc is without jurisdiction to review action will redress it." id. at 561-62. requested relief may not redress ltc partners' injury because the gram, opm and a qualified carrier enter into a "master contract" that that "standing determinations are actually determinations on the mer- judicial resolution of it appropriate." emery v. roanoke city sch. bd., cerns, we decline, as did the district court, to decide this case on were not dealing with a final agency decision, j.a. 182. that ltc partners chose not to present the apa argument to the district court, nevertheless, the supreme court recently clarified, relying on steel clear indication that the eeoc had acted beyond its jurisdiction. omitted). by contrast, if the case had advanced to the summary judg- the united states, as contractual partners, maintained adverse interests as ance is a fringe benefit; whether denial of insurance coverage concerns find that the numerosity requirements in title vii were not jurisdic- some injury in fact that is fairly traceable to the defendant and likely of exceptional circumstances." united states v. one 1971 mercedes and jump straight to addressing the merits of the litigant's claim. that this stage can obtain an additional de novo review within ltc partners.3 senior level/supervisory underwriter or a medical director at john han- controversy requirement," miller v. brown, 462 f.3d at 316, we have in original) (internal quotations omitted). in sinochem, the court protocols for the [program], have no involvement with the initial or sub- met here. neither party disputes that the eeoc is causing this alleged to indicate whether they used "medical devices, aids, or treatments," court had jurisdiction to entertain the suit. id. at 190-91 ("this court that, precisely speaking, implicates the subject-matter jurisdiction of delineates the benefits, premiums and other terms and conditions of states, 304 f.3d 31, 40 (1st cir. 2002) ("[t]he issue of whether the criminate against its employees who are individuals with disabilities by a favorable decision. lujan v. defenders of wildlife, 504 u.s. 555, majority violates the principle announced in steel co. v. citizens for standing below, the united states renews this argument on appeal on february 23, 2006, ltc partners filed suit against the united directive). particular individual is eligible to obtain long-term care insurance ders our leedom inquiry nonjurisdictional. our leedom analysis separate ada provision governs agency discrimination via participa- we have therefore construed the exception accordingly, finding lee- wall. 506, 514, 19 l.ed. 264 (1869)), and it may not assume jurisdic- insurance program]." (j.a. at 94.) the majority suggests that this third, it must be "likely," as opposed to merely "specula- naro and james would operate only against opm, arguing that any (ada) with eligibility determinations under the ltcsa" and holding the eeoc acted outside its jurisdiction in hearing rouse, fornaro, 9long term care partners v. united states a. this analogy fails for similar reasons. see mitchell v. forsyth, 472 u.s. 1393631 (may 3, 2007); recons. denied, e.e.o.c. doc. 0520070615, *and, as part of the claim for relief, failure to prove or plead final between the two inquiries. steel co., 523 u.s. at 94. at its core, "the this suggestion, however, overlooks the fact that ltc partners' eeoc's assertion of jurisdiction, and that it therefore will not allow ltc such an exercise of jurisdiction does not actually affect ltc partners' 313 f.3d 852, 857 (4th cir. 2002). we reasoned that the doctrine of statutory rights." bd. of governors, fed. reserve sys. v. mcorp. fin., unaffected by the specific prohibition in the ltcsa, 5 u.s.c. if the agency acted "clearly beyond the boundaries of its authority." james, the eeoc offered a reasoned explanation of its assertion of implicates our subject matter jurisdiction: 3038227 (november 2, 2005), recons. denied sub nom. fornaro v. duncan, circuit judge: an application for insurance to ltc partners. the application form, denial and issues a second decision. an applicant denied coverage at reviewing individual insurability determinations, but only the master 2 its"). in such cases, the inquiry into whether a litigant has alleged where "judicial review is sought under the apa rather than a particu- 21long term care partners v. united states that this narrowness of focus should not limit it on appeal, citing the 17long term care partners v. united states did not speak in jurisdictional terms, and concluding that the factual successive stages of the litigation." lujan, 504 u.s. at 561. of course, not precede inquiry into the article iii standing question without run- a better environment, 523 u.s. 83 (1998). steel co. clarified that a "the structure of standing," 98 yale l.j. 221, 237 (1988) (arguing rouse, fornaro, and james. but 9003(c)(2), by its terms, does not nent parts are foreclosed to anyone but ltc partners under the based on disability when he was denied coverage under the program. 9 the majority, relying on the supreme court's even more recent ltc partners is the only qualified carrier under the ltcsa. review "only to the extent and in the manner provided in the applica- 502 u.s. at 43. that is, ltc partners could not satisfy the second to the claim. the dismissal of the new claim in the second amended com- ltc partners also analogizes to the qualified immunity doctrine. 8 186. the court held that the board had acted "in excess of its dele- strictly concerning an individual's `insurability.' such decisions are accordingly, i concur in the result reached in part v, affirming the diction will not lie. see also nat'l air traffic controllers ass'n afl- remedies set forth in the master contract. 5 u.s.c. 9007. unlike the moreover, ltc partners' "immunity" argument suffers from the obvi- the government's motion to dismiss is therefore tion, they also cannot deny a litigant who meets article iii's standing tiff's claim for relief," arbaugh, 545 u.s. at 516, and, as such, a decisions, and the regulations prohibit applicants from appealing car- partners' eligibility determinations, it does nothing to inhibit eeoc agency's issuance of a definitive ruling that had some immediate "legal 5 ada, the alj determined, despite the limitations on review of ltc thus, under sinochem, it is of no moment whether arbaugh ren- 1 contract not to be forced to defend its insurability decisions before the in this case without first addressing ltc partners' standing, the u.s. at 498, which is always a distinct inquiry from the question of hancock life insurance company and metropolitan life insurance ing and `the merits' substantially overlap[ped]"); william a. fletcher, no. 07-1098defendant-appellee, a jurisdictional limitation but an element of the claim for relief. id. at injury in fact is admittedly low at this stage of litigation; "the claimed dom, 358 u.s. at 184-85 (citing national labor relations act agency action" under the apa and non-statutory inquiries under lee- ltc partners claims injury based on the eeoc's exercise of juris- even with the alleged obliteration of ltc partners' statutory right, has deciding that the arbaugh rule applies equally to statutory "final plaintiff-appellant, security act, ("ltcsa"), 5 u.s.c.a. 9001-9009 (west 2007), [opm] to potentially enter into any contract term which violates fed- affirmative. furthermore, i believe that ltc partners has met its bur- insurability decisions made pursuant to the [federal long term care accompany any major litigation." ftc v. standard oil co., 449 u.s. u.s.c. 9001-9009, to provide long-term care insurance to eligible of rouse's application was valid and lawful. the court dismissed the jurisdiction, we conduct a "cursory review of the merits" to determine counsel question before us is whether the distinction drawn by the agency is that the leedom exception to the finality requirement for review of (1998), and ruhrgas ag v. marathon oil co., 526 u.s. 574, 585 ment that the aggrieved program applicant's complaint was an imper- affirmed. sion." plan." rouse v. director, office of personnel management, case no. against opm as the agency administering the program. in his com- apa's finality requirement is not jurisdictional). we assume without the forum non conveniens doctrine without first resolving the thresh- determinations under the ltcsa. see leedom, 358 u.s. at 190. ltc tenn. valley auth., 297 u.s. 288, 347 (1936) (brandeis, j., concur- 19long term care partners v. united states 3long term care partners v. united states should treat the restriction as nonjurisdictional in character. sions and scrutiny of the master-contract terms require the same ulti- deprive" it "of a meaningful and adequate means of vindicating its long term care partners, llc, this exercise of jurisdiction guts its right to enjoy the limitations on benz, 542 f.2d 912, 915 (4th cir. 1976). ltc partners concedes that judicial review under the apa is limited to "final agency action for (defining "employer" to include only those entities having "fifteen or question than whether that litigant has stated a cause of action. u.s. at 43. in addition, i agree with the conclusion in part iv that the ada--are not before us. cle iii standing, a constitutional question, in cases in which a statutory ceedings like fornaro and james threatens to sacrifice or obliterate 704 of the apa should not be considered jurisdictional after 513-16. the court explained, "[w]hen congress does not rank a stat- j. frederick motz, district judge. - the injury has to be "fairly . . . trace[able] to the challenged although the district court declined to address ltc partners' nal) (internal quotations omitted). the court listed by way of example 875.407.1 before williams, chief judge, duncan, circuit judge, scrutiny of an agency's contractual relationships is simply the way- 22 long term care partners v. united states co. v. malaysia int'l shipping corp., 127 s. ct. 1184, 1191 (2007) immunity from being haled before a tribunal by private parties--those i. and, because "[i]t is well settled that under article iii of the united ence of final agency action before considering ltc partners' stand- agency action would result in failure to file a claim upon which relief partners has failed in its burden to prove it can satisfy leedom's first it based its case before the district court solely on leedom but argues even if we were to reach a contrary conclusion, ltc partners the court's pre-arbaugh determination that the apa's finality require- nation that the merits should be adjudicated elsewhere." id. at 1192 2007); james v. springer, e.e.o.c. doc. 0120054026, 2007 wl ticipation in an allegedly discriminatory contractual relationship. as lujan v. defenders of wildlife, 504 u.s. 555, 560-61 (1992) (internal ing the jurisdictional hurdle of standing. see ashwander, 297 u.s. at any tangible, immediate effect on ltc partners, aside from the disrup- sought a declaration from the district court that "the eeoc'[s] assertion however, arbaugh "effectively overruled" cases, like flue-cured limited extent to which it may exercise jurisdiction in cases like individual's eligibility for coverage under the ltcsa. faced with the plaintiff-appellant, to a singular focus on enjoining the eeoc's exercise of jurisdiction in flue-cured tobacco coop. stabilization corp. v. e.p.a., 313 contractual partner, opm. the district court did not reach this issue. lar individual is eligible to obtain long-term care insurance coverage ring) ("it is not the habit of the court to decide questions of a constitu- burden of establishing these requirements. id. at 561. our failure to act "would wholly deprive" it "of a meaningful and ade- at the district court's behest, ltc partners then filed a second requires no more than "a brush with factual and legal issues of the 23long term care partners v. united states cede consideration of the apa's finality requirement. in sinochem, statement implicating our subject matter jurisdiction, the "final ment is not jurisdictional). it might be possible to argue that, because indeed, ltc partners "cannot rest [its] claim to relief on the legal cir. 2006). unresolved jurisdictional issues, because such a dismissal "den[ies] of jurisdiction in rouse, fornaro, and james is final agency action ltc partners claims the eeoc's assertion of jurisdiction in pro- clear and mandatory prohibition of review of carriers' eligibility tional nature unless absolutely necessary to a decision of the case.") and litigants will be duly instructed and will not be left to wholly deprive" the aggrieved party "of a meaningful and adequate gation, of vindicating its perceived right under 9003 and the master citations and quotation marks omitted). ltc partners claims that this case fits both criteria for exercise of coverage," 9003(c)(2), may or may not also attach to the eeoc's (internal quotations omitted). "[j]urisdiction is vital only if the court rouse does not provide an opportunity for ltc partners to contest the by advancing to the inquiry into final agency action under the apa partners argues that the eeoc's action, if left unchecked, would 1194, and decide the case on leedom grounds without first surmount- remained pending before opm. its entitlement to the leedom exception to the apa's finality require- first determining that it has jurisdiction over the category of claim in and congress enacted the long-term care security act ("ltcsa"), 5 individuals, including federal employees, their qualified relatives, and redressibility requirement of article iii standing. here, ltc partners tions exists, provided the applicant has exhausted the administrative decided: february 5, 2008 the ada, opm is prohibited from this question is kept alive through the ongoing proceedings in for- adding ltc partners as a party to that action. rouse v. springer, no. 06- of litigation is significant because, given that the elements of standing divest ltc partners of its right under the ltcsa to have its insur- the manner provided in the applicable master contract," 5 u.s.c.a. of the plaintiff's contention that particular conduct is illegal." warth, 8 long term care partners v. united states 24 long term care partners v. united states ralph rouse, 5 u.s.c. 9003(c)(2). indeed, the eeoc recognized as much in nkihtaqmikon v. impson, 503 f.3d 18, 33 (1st cir. 2007) (reaffirming otherwise . . . in violation of the [apa][.]"). however, ltc partners 2006) (holding, where both parties on appeal "raised compelling argu- and review agency action made reviewable by statute. 704. within the meaning of the law." james, 2007 wl 1393631, at *3; see gaining] purposes if such unit includes both professional employees "hypothetical jurisdiction" steel co. condemns and, accordingly, i ofo found that "opm, in its contractual relationship with [ltc part- conjectural or hypothetical to confer article iii standing.9 11 under the program, and (2) a permanent injunction preventing the tion and adding a new claim seeking declaratory judgments (1) that deni- decide questions of a constitutional nature unless absolutely necessary totten v. united states, 92 u.s. 105 (1876)). or controversies that will be decided in the plaintiff's favor," and judgment. jurisdiction. thomas v. miller, 489 f.3d 293, 298 (6th cir. 2007). 26 long term care partners v. united states the agency offered a "plausible" interpretation of the relevant statute, ners] for the provision of this insurance, is the proper party responsi- cir. 2007) (reaffirming the court's pre-arbaugh determination that the attorney, marleigh d. dover, united states department united states of america, u.s. 574, 585 (1999)). because, however, "final agency action" under to the right of a sovereign to immunity from suit. see r.i. dep't of engaged in defense of the master contract in federal district court. rouse nlrb issued an order certifying a unit for collective bargaining pur- determined that a federal court could properly dismiss a case under master contract with ltc partners, a consortium created by john (4th cir. 2000) (en banc) (internal quotation marks omitted). did not fit the limited finality exception outlined in leedom.8 notwithstanding the government's invocation of standing con- in article iii, section 2 of the constitution, the party invoking federal a term, condition, or privilege of employment; and whether the master and concurring in the judgment: conveniens before jurisdictional inquiries when those inquiries are ment, infra part iii.a. agency action did not apply in this case. the district court's grant of for the district of maryland, at baltimore. civ. p. 12(h)(3); see sucampo pharm., inc. v. astellas pharma, inc., tion in suspect contractual relationships. see 42 u.s.c. 12112(b)(2). of jurisdiction to review insurability decisions made by ltc partners is whether this conclusion nonetheless permits us to consider the pres- standing to challenge the eeoc's exercise of jurisdiction over its in two subsequent appeals, the eeoc has reinforced its view of the has a sufficient personal stake in the outcome of a dispute to render ners would be required, under federal rule of civil procedure 56(e), sequent denial and act as independent reviewers." j.a. 24-25. answered that question before addressing what we perceived to be a tion appropriate in each case, the ofo remanded the claims for pro- the carrier has discretion, within the limits set forth in the master lar statute prescribing judicial review, the requirement of final agency provision of long-term care insurance, and regulating certain aspects final agency action occurred. this agreement permits me to concur in 6 long term care partners v. united states the distinction between standing and the merits is sometimes shadowy niens dismissal might be appropriate, notwithstanding the presence of omitted). when a party invokes leedom as the basis for this court's only [as] provided in the applicable master contract.") (emphasis 13long term care partners v. united states would be difficult to resolve. under these circumstances, sinochem ("opm") arising from opm's participation in an allegedly discrimi- ity to review insurability decisions. see fornaro, 2005 wl 3038227, at and particularized, and (b) "actual or imminent, not `conjec- action, i next turn to the question of final agency action and the lee- no. 06-1930defendant-appellee, second level reconsideration, while knowledgeable of the underwriting difficult and "forum non conveniens considerations weigh heavily in qualified applicant or employee with a disability to the dis- poses that included both professional and non-professional employ- arbaugh, 546 u.s. at 515-16 (internal citation omitted). within the discretion of the insurer and fall within the protective provi- because the eeoc did not have jurisdiction to review ltc partners' treatments" question would render the applicant ineligible for cover- ltc partners, as the party asserting federal jurisdiction, has the and raymond a. jackson, united states district judge for the or controversy requirement." miller v. brown, 462 f.3d 312, 316 (4th possesses standing to pursue this action. in its original complaint, instead, each individual must apply for coverage using a form pre- sions of the ada for insurance providers set aside by congress."). rouse's claim did not involve a dispute over medical judgments. recycling corp., 204 f.3d 149, 154 (4th cir. 2000) (en banc). to individual insurability decisions is a conclusion that ltc partners has 4 contract subjects federal employees to the discrimination prohibited by ltc partners argues in response that review of its eligibility deci- 42 u.s.c. 12112(b)(2). the eeoc had jurisdiction to determine the causation and redressability requirements for standing are also standing has three components: opm does not provide for review by the eeoc, i would find that the s. ct. 1184 (2007), concludes that the standing inquiry need not pre- *2 ("this is not to say that the commission may overturn a decision doing so, the ofo distinguished between challenges to individual therefore, unless the eeoc cannot avoid exercising jurisdiction over sions that indisputably had direct and immediate legal force and practical characterized as the "macro issue" in the case--review of opm's par- nity" granted to "[a] carrier's determination as to whether or not a cannot lightly infer that congress does not intend judicial protection the district court dismissed nn. 6-7 (d.c. cir. 2006) (same); see also nulankeyutmonen the continued validity of this portion of the decision in flue-cured f.2d at 1081 (internal quotations omitted). decide the merits of the dispute or of particular issues," warth, 422 422 u.s. at 500. h corp., 546 u.s. 500 (2006). in arbaugh, the supreme court con- ties," in re ayers, 123 u.s. 443, 505 (1887). ltc partners' analogy to support the claim." id. (internal quotation marks and alteration 560-61 (1992); see also friends of the earth, inc. v. gaston copper supreme court reversed, noting that the statutory provision at issue envtl. mgmt. v. united states, 304 f.3d 31, 42 (1st cir. 2002) (finding moreover, under warth, an injury in fact can "exist solely by virtue united states court of appeals satisfy leedom's second prong, because ltc partners cannot show action, "there is ordinarily little question that the action or inaction wrestle with the issue. . . . but when congress does not rank co. v. citizens for a better environment, 523 u.s. 83, 100-101, n.3 powers."). is "outside [the eeoc's] authority, arbitrary, capricious, . . . and oth- rights or interests of third parties." warth v. seldin, 422 u.s. 490, 499 upon sound analysis after thorough inquiry, and grounded in the lan- 7long term care partners v. united states partners"). i write separately, however, because i believe that, in light ltc partners has waived any argument regarding "final agency pursuant to this framework, i would conclude that ltc partners scrutiny of opm's participation in a contractual relationship that has contract entered by the office of personal management ("opm"). utory limitation on coverage as jurisdictional, courts should treat the must dissent from part ii of the majority opinion. insurability decision. the alj rejected this argument, finding that it proof, i.e., with the manner and degree of evidence required at the the earth, inc. v. gaston copper recycling corp., 204 f.3d 149, 156 6 federal court generally may not rule on the merits of a case without includes a relationship with an employment or referral participating in a contractual or other arrangement or rela- contract, to accept or reject applications. 5 u.s.c. 9003(c); 5 c.f.r. constitutional avoidance requires us to eschew determinations of arti- therefore, the second-level review, including review of records by request to intervene in the rouse eeoc proceeding, casts doubt upon relying on arbaugh, the court of appeals for the district of review of an individual eligibility determination and what the court review imposed by the ltcsa; forces it to expend resources on (1:06-cv-00475-jfm) basis of their protected class." fornaro, 2005 wl 3038227, at *2. provision, or whether the agency's view, while perhaps not compel- ment responds by noting that eeoc decisions on the merits in for- not overrule flue-cured tobacco. as the sixth circuit has explained, administration of the program, see appellant's br. at 52; reply br. at 21, at the time of oral argument in this case, both fornaro and james pendent action of some third party not before the court." the underlying substantive questions--whether long-term care insur- in the court's suggestion at the hearing that both parties agreed they have the executive observe procedures mandated by law." hodges v. as follows: "should the original underwriting decision be upheld, the whether a litigant has a sufficient personal stake in a suit is a different ltcsa, 5 u.s.c. 9003(c)(2). by asserting jurisdiction to review applicant may request a second, and final reconsideration review. a outside its authority, arbitrary, capricious, an abuse of discretion, and based distinctions in the eligibility requirements of its insurance flue-cured tobacco entered us into a circuit-split at the time it because the defendant employed fewer than fifteen employees, and of the eeoc's position. rather, our leedom inquiry is aimed at the ing the federal long term care insurance program ("program"), 5 in july 2002, ralph d. rouse, jr., a federal employee, submitted accordingly, i do not believe we may proceed to consider whether long term care partners, llc, fact" that is concrete and particularized, and actual or imminent, as b. certification of collective bargaining units by the national labor its should be adjudicated elsewhere." id. at 1192 (alteration in origi- supreme court has noted, even if standing "often turns on the nature affirmed by published opinion. judge duncan wrote the opinion, in eign) from suit to the insulation of a category of decisions (eligibility condition for leedom jurisdiction to lie. fornaro, and james "wholly deprive[d] [ltc partners] of a meaning- the inquiry into the ultimate merits of the plaintiff's claim is often a 2 long term care partners v. united states on the merits against opm in the pending eeoc actions. the govern- relied on by ltc partners clearly prohibits the eeoc's direct review argument, to which we now turn. eeoc explicitly acknowledged in fornaro and james its lack of author- ble master contract." 5 u.s.c. 9003(c)(2). notwithstanding this, a rights.") (omission in original). "since the state's sovereign rights because the line drawn by the ofo parallels and arises in part from ceed at all in any cause,'" id. at 94 (quoting ex parte mccardle, 7 plaint has not been appealed. underlying dispute" and "does not entail any assumption by the court ii. court having granted the united states' motion to dismiss. the stage relationships. the eeoc ofo has espoused the view that the latter ltc partners has met its burden under leedom v. kyne, 358 u.s. 184 quate means of vindicating its statutory rights." mcorp. fin., 502 ment stage, such "allegations" would no longer suffice and ltc part- dom exception. on this issue, i disagree with the majority that ltc 18 long term care partners v. united states accordingly, because 704 of the apa does not contain a clear and employees who are not professional employees unless a majority the court."), and, in light of recent supreme court precedent, our side provisions," that it was precisely this fact that compelled the court to wise. first, ltc partners argues that the eeoc, in exercising juris- served in the trial forum will not be noticed on appeal, in the absence under the apa. however, "[q]uestions not raised and properly pre- tion in the master contract, a favorable decision here would have no party can sue for violation of "a `procedural right,' e.g., the right to al's `insurability.'" fornaro, 2005 wl 3038227, at *2. however, a related injunction on the exercise of such jurisdiction. j.a. 94. but the scribed by the carrier and approved by opm. 5 c.f.r. 875.401(a). a delineation in the united states code, it would be difficult to con- nection between the injury and the conduct complained of matter jurisdiction to invalidate [agency] actions that clearly fall out- 9003(c)(2), and the master contract between ltc partners and br. at 18. specifically, ltc partners draws our attention to the fact designed by ltc partners and approved by opm, required applicants consequently dismissed the case. the fifth circuit affirmed. the tionship that has the effect of subjecting a covered entity's eign entity. this case presents neither the constitutional scope tion). see id., at 93-102. "`without jurisdiction the court cannot pro- of jurisdiction over its "insurability decisions" and that this exercise leedom jurisdiction and that the district court erred by holding other- stated that an affirmative response to the "medical devices, aids, or safety comm'n, 324 f.3d 726, 731 (d.c. cir. 2003) (holding that 13 (internal quotations omitted). our consideration of leedom, infra, provides that a "carrier's determination as to whether or not a particu- ling beyond cavil, is nevertheless "plausible." newport news, 633 the inquiry into a litigant's article iii standing to bring a claim and (internal quotations omitted)). argued: september 27, 2007 ("alj"), opm argued that rouse's complaint should be dismissed of that circuit-split is no longer defensible. in arbaugh, the court cre- unsubsidized by the government. 9004(a). over ltc partners' insurability decisions in general.12 the master contract sets forth ltc partners' internal defendant. because standing does implicate our subject matter jurisdiction, b. restriction as nonjurisdictional in character." id. at 516. cf. partington only to the extent and in the manner provided in the applicable master tional but "an element of a plaintiff's claim for relief." id. at 516. holding that the decision to entertain such matters was not "final counsels us to "take[ ] the less burdensome course," 127 s. ct. at proposes to issue a judgment on the merits." id. at 1191-92 (alteration although 9003 clearly and specifically prohibits review of ltc reserve sys. v. mcorp fin., inc., 502 u.s. 32, 43 (1991). diction in rouse, fornaro, and james, acted contrary to the ltcsa's it is also open to question whether ltc partners could satisfy the ble for ensuring that its contract adheres to non-discrimination a. appeals from the united states district court of statutes creating legal rights, the invasion of which creates stand- all of the ingredients for ltc partners' generalized claim--that he or she cannot win in the end. article iii limits federal court juris- prong. instead, because the plain language of the long term care standing "in no way depends on the merits of the plaintiff's conten- champion int'l corp. v. epa, 850 f.2d 182, 186 (4th cir. 1988). if 914 f.2d 49, 51 (4th cir. 1990). finally, the standard to show an the court then applied its "readily administrable bright line" to added). there is no serious dispute about the mandatory nature of this invasion of a legally protected interest which is (a) concrete to the 704 finality requirement in cases in which agencies act out- the primary cases relied upon by ltc partners, involved agency deci- the denial letter to his or her physician, who in turn can respond in a statutory limitation on coverage as jurisdictional, courts cian's letter, ltc partners' underwriting staff reconsiders the original plications. first, as discussed at length supra, the so-called "immu- (1999), that "a federal court has leeway to choose among threshold eeoc is violating a clear statutory mandate. i agree in full, however, coverage based on his use of a wheelchair, j.a. 263-64, and upheld writing to the specific bases for the denial. upon receipt of a physi- asserts that the second leedom requirement is also met in this case plaint. j.a. 91 ("eeoc's action in asserting jurisdiction to review its standing to pursue this action. how a litigant's claim should be decided. inasmuch as federal courts insurability decisions in contravention of the ltcsa and its imple- states in federal district court. the complaint, as later amended, immunity doctrine). moreover, we note that ltc partners is actively projected downstream effects of such rulings on ltc partners are too bility determinations. the eeoc has repeatedly drawn a line, how- limited right to judicial review of the carrier's eligibility determina- the result reached in part v, dismissing ltc partners' complaint. ever, between review of carriers' eligibility determinations and 2088 (d.d.c. filed dec. 8, 2006). ltc partners has not sought to inter- the supreme court has since reinforced the "narrow limits" of 16 long term care partners v. united states determinations) from review. for these reasons, ltc partners' claim forgone action) at issue." lujan, 504 u.s. at 561. if, like here, the [state] of a meaningful and adequate means of vindicating its . . . 1191 (pointing to abstention under younger v. harris, 401 u.s. 37 whether 704 of the apa implicates the subject matter jurisdiction 546 u.s. at 516. ltc partners' argument is both overbroad and fraught with com- the alleged effect of subjecting federal employees to discrimination. id. at 188-89. under those circumstances, the court held, the district determinations except "to the extent and in the manner provided in the at the pleading stage, "general factual allegations of injury resulting 25long term care partners v. united states jurisdiction, concluding there was no indication that ltc partners and not a prerequisite for us to exercise subject matter jurisdiction. in leedom, the supreme court construed a statute dealing with the question in the affirmative. accordingly, ltc partners denied rouse ing jurisdiction over cases brought by federal employees aggrieved by dom jurisdiction appropriate only where there is a "strong and clear ment. ings; and imperils the contract through the threat of an adverse ruling the current case remains at the pleading stage, with the district dismissal of the complaint by long term care partners, llc ("ltc ltcsa, 5 u.s.c. 9003(c)(2), which in turn concerns only eligibil- 471 f.3d 544, 548-49 (4th cir. 2006). to satisfy the standing require- published based upon that ground must be considered dismissal on the merits for news, 633 f.2d at 1081. ii. 43 (citing p.r. aqueduct & sewer auth. v. metcalf & eddy, inc., 506 the alleged effect of discriminating against federal employees. the natory contract with ltc partners. the district court dismissed ltc (2) the injury is fairly traceable to the defendants' actions, and (3) it 2007 wl 2416692 (august 16, 2007). in each of these cases, the decision in sinochem int'l co. v. malaysia int'l shipping corp., 127 of the federal courts and both concluded, with little hesitation, that whether opm discriminated against rouse under this section of the deau v. ftc, 456 f.3d 178, 183-84 & nn. 6-7 (d.c. cir. 2006); see 5long term care partners v. united states 1119, 1123 (4th cir. 1977). both fort sumter tours and athlone indus., injury need not be large, an identifiable trifle will suffice." friends of underwriting staff, was unavailable in rouse's case. an order compelling the eeoc to permit ltc partners to intervene in of the insurers' operations. see 9001-9003, 9008. under the pro- that "the commission has jurisdiction under the ada to determine 7 reviewing its insurability decisions; the majority's conclusion that other legal issues that could also be addressed without first deciding cessing by the agency.6 reached by the district court. the distinction drawn in the eeoc cases long term care partners, llc ("ltc partners") challenges the because i agree with the conclusion, reached in part iii.b, that ltc for the foregoing reasons, we affirm the district court's holding

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