DENIED: May 21, 2025

DENIED: May 21, 2025

CBCA 7357

UNITEDHEALTHCARE INSURANCE COMPANY, INC.,

Appellant,

v.

OFFICE OF PERSONNEL MANAGEMENT,

Respondent.

Stephen J. McBrady, Charles Baek, Payal Nanavati, and Issac D. Schabes of Crowell

& Moring LLP, Washington, DC, counsel for Appellant.

Emily Warner, Nicole M. Lohr, Matthew J. Ruane, and Beth M. Stratton, Office of

the General Counsel, Office of Personnel Management, Washington, DC, counsel for

Respondent.

Before Board Judges RUSSELL, KULLBERG, and VOLK.

VOLK, Board Judge.

Appellant, UnitedHealthcare Insurance Company, Inc. (UnitedHealth), contracts with

respondent, the Office of Personnel Management (OPM), to offer health insurance plans to

federal employees through the Federal Employees Health Benefits (FEHB) program. In

2020, UnitedHealth paid claims totaling $3,838,510.70 for a heart transplant procedure for

the dependent son of a federal employee who had enrolled in a UnitedHealth FEHB plan.

After the procedure, but before paying the claims, UnitedHealth processed a retroactive

disenrollment of the employee from its insurance plan. The Government then retroactively

reenrolled the employee, and UnitedHealth paid the claims.

CBCA 7357

2

UnitedHealth seeks to recover the $3,838,510.70 that it paid for the procedure,

claiming that OPM breached the parties’ FEHB contract. UnitedHealth originally asserted

that the retroactive reenrollment was improper, but it is no longer pursuing that theory.

Instead, it now argues that the Government breached the contract by providing erroneous

information regarding the employee’s FEHB eligibility status in 2019, the year before the

procedure. Although the parties agree that the employee would have been eligible to enroll

in UnitedHealth’s plan for 2020, the year during which the transplant procedure occurred,

UnitedHealth avers that, absent the Government’s error in 2019, it would have disenrolled

the employee sooner and there is a “reasonable possibility” that the employee subsequently

would have selected a different insurance plan.

The parties have cross-moved for summary judgment. We grant OPM’s motion.

Background

I.

Enrollment in UnitedHealth’s Plan

In 2015, OPM and UnitedHealth entered into contract no. CS 2945. Under that

contract, including modifications thereto, UnitedHealth offered its “Choice Plus Advanced”

health insurance plan to federal employees under the FEHB program at all times relevant to

this appeal. An Internal Revenue Service (IRS) employee, whom the parties refer to as

“CM,” enrolled her family in that plan during the open season preceding the 2019 plan year.

At that time, she was on leave without pay (LWOP).

By February 2, 2019, CM had been on leave without pay from the IRS for 365 days.

By regulation, an employee who has been on leave without pay for 365 days becomes

ineligible for FEHB coverage. 5 CFR 890.303(e) (2019). On February 6, 2019, the IRS

executed a Standard Form 2810 (SF-2810), Notice of Change in Health Benefits Enrollment,

indicating that CM’s enrollment was to terminate effective February 2, 2019. UnitedHealth

received the information contained in this SF-2810 via a weekly electronic transmission from

OPM on February 10, 2019. Complaint ¶ 32; Oral Argument Transcript at 8. OPM asserts

that UnitedHealth was required to disenroll CM from its plan upon receiving this

information. Respondent’s Motion for Summary Judgment at 9; see also Complaint ¶ 17

(“The SF-2810 form serves as a notice that the carrier should process the termination of an

enrollee.”).

UnitedHealth did not disenroll CM from its plan, or take any other immediate action,

upon receiving the SF-2810 in February 2019. Consequently, a discrepancy began appearing

in quarterly reconciliation reports produced by an FEHB electronic system known as the

Centralized Enrollment Reconciliation Clearinghouse System (CLER). FEHB carriers,

CBCA 7357

3

including UnitedHealth, submit their enrollment information in CLER each quarter. If the

carrier’s enrollment information does not match that of the Government’s payroll office1 for

an enrollee, CLER generates an error code for that enrollee in its quarterly report. For CM,

a March 4, 2019, quarterly CLER report generated the following discrepancy: “160 Enrollee on Carrier Record But No Payroll Office Record Found.” Exhibit 51a.2

CLER includes fields in which both the Government’s payroll office and the insurance

carrier can enter narrative comments. On April 24, 2019, a UnitedHealth representative

wrote in the “Carrier Comments” field for CM’s record: “Please confirm enrollment or

provide a termination date.” Exhibit 51a. There was no immediate response from the IRS’s

payroll office.

On June 3, 2019, the next quarterly CLER report continued to report the same error

code for CM, indicating that CM was enrolled according to UnitedHealth’s data but not

according to the payroll office’s data. Later that month, on June 27, 2019, a government

representative wrote in the “Payroll Office Comments” field of CLER: “Employee is on

LWOP/Non-Pay and the insurance coverage continues. The premiums have been billed for

all pay periods.” Exhibit 51a. OPM concedes that the payroll office’s June 27, 2019,

statement that “insurance coverage continues” was erroneous. Oral Argument Transcript at

31-32.

On July 30, 2019, a UnitedHealth representative wrote in CLER’s carrier comments

section: “According to payroll contact, member is on LWOP and is paying premiums.

Please update CLER records.” Exhibit 51a. However, earlier that month, on July 8, 2019,

CM had returned to pay status with the IRS.

When an employee returns to pay status after losing FEHB coverage due to being on

LWOP for 365 days, the employee has sixty days to enroll in an FEHB plan or make an

enrollment change. 5 CFR 890.301(h)(1). CM, having never been disenrolled from

UnitedHealth’s plan,3 did not make any FEHB enrollment election or change during the

sixty-day period following her July 8, 2019, return to duty. However, on July 15, 2019,

1

The Department of Agriculture’s National Finance Center serves as the IRS’s

payroll office.

2

3

All exhibits are found in the appeal file, unless otherwise noted.

“UnitedHealth had not terminated CM’s enrollment and she remained enrolled

in its health plan when she returned to duty status.” Appellant’s Response to Respondent’s

Statement of Facts ¶ 52 .

CBCA 7357

4

within a week of her return to duty, CM called UnitedHealth’s customer service department

to verify coverage for herself and her children. Exhibit 6c. Over the following months, CM

made several more calls to UnitedHealth’s customer service department, during which “the

issue of her insurance coverage was not raised.” Respondent’s Response to Appellant’s

Statement of Facts ¶ 35; Exhibit 6c.

Meanwhile, the quarterly CLER discrepancy reports generated on September 4, 2019,

and December 2, 2019, continued to produce the same “160” error code described above.

Exhibit 51a. UnitedHealth and the IRS’s payroll office had access to this information, but

CM did not.

The annual FEHB open season ran from November 11, 2019, through December 9,

2019. During this period, all FEHB participants were allowed to make FEHB enrollment

changes for the upcoming plan year. CM did not make any FEHB enrollment changes during

this open season. She remained enrolled in UnitedHealth’s plan.

II.

Heart Transplant Procedure

On January 15, 2020, UnitedHealth became aware that CM’s dependent son was a

candidate for a heart transplant procedure. On January 29, 2020, UnitedHealth received a

request for, and granted, prior authorization for the heart transplant procedure.

On February 27, 2020, a government representative wrote in CLER’s “Payroll Office

Comments” field: “Employee Terminated Coverage effective 2/02/19.” Exhibit 51a. On

March 3, 2020, the quarterly CLER discrepancy report again returned error code “160” for

CM. Id.

On March 12, 2020, CM’s son underwent the pre-authorized heart transplant

procedure. The procedure resulted in UnitedHealth receiving medical and pharmacy claims

totaling $3,838,510.70.

III.

Retroactive Disenrollment and Reenrollment

On March 31, 2020, in CLER’s carrier comments field, a UnitedHealth representative

wrote: “Termed effective 3/5/2019.” Exhibit 51a. This meant that UnitedHealth was

retroactively terminating CM’s enrollment in its plan, with an effective date in March of the

previous year.

On April 23, 2020, a UnitedHealth representative sent an email to a representative of

the IRS’s payroll office. Apparently unaware that the medical procedure had already

CBCA 7357

5

occurred, the UnitedHealth representative stated, “Your employee [CM’s] record is termed

and her son is in need of a transplant. She was termed due to [CLER] and I need to

determine the cause and get her reinstated.” Exhibit 16 at 8.

IRS personnel contacted CM. On May 6, 2020, CM signed, and the IRS certified, a

Health Benefits Election Form, SF-2809, to reenroll CM in the same UnitedHealth plan in

which she had previously been enrolled. In a “Remarks” section, the SF-2809 stated that this

was an open season enrollment with a retroactive effective date of January 19, 2020. Exhibit

17 at 2. UnitedHealth processed the reenrollment. On September 4, 2020, it paid

$3,838,510.70 in claims for the March 12, 2020, transplant procedure.

IV.

UnitedHealth’s Certified Claim Letter

In October 2021, UnitedHealth submitted a certified claim letter to OPM asserting that

the Government had breached the parties’ FEHB contract and demanding reimbursement of

the $3,838,510.70 that UnitedHealth had paid. In an October 20, 2021, transmittal email, a

UnitedHealth representative stated, “This claim relates to United’s position that the

re-enrollment of an employee of the Internal Revenue Services in May of 2020 was improper

due to such individual not being eligible for enrollment.” In the claim letter, UnitedHealth

alleged that the May 6, 2020, SF-2809 “reenrollment application . . . misrepresented CM’s

eligibility for enrollment in the Plan.” Exhibit 13 at 11 (“The application included

inappropriate ‘event codes’ that inaccurately described CM’s eligibility for enrollment and

a retroactive effective date.”). The letter claimed that the “Government’s unlawful

enrollment caused UnitedHealth to pay $3,838,510.70 in claims for healthcare services

provided to the dependent child of an individual who was not eligible to be enrolled in [the]

Plan.” Id.

OPM denied the claim. It asserted that the retroactive enrollment was within the

Government’s authority and that UnitedHealth had no basis to challenge the Government’s

enrollment decisions. OPM also asserted that UnitedHealth would have been “obligated to

pay the benefit claim for the Employee’s son’s medical care in any case” because, if CM had

been disenrolled, she “would have been eligible to reenroll upon returning to duty status in

2019 and during the 2019 Open Season, and likely would have taken the first opportunity to

reenroll had she known that her enrollment was effectively terminated.” Exhibit 1 at 10.

V.

Board Proceedings

UnitedHealth timely appealed to the Board. Consistent with its October 2021 claim

letter, UnitedHealth filed a complaint alleging that the Government breached its duty to

provide UnitedHealth “with accurate enrollment information, which caused UnitedHealth to

CBCA 7357

6

pay claims for healthcare services provided to the dependent child of an individual who was

not eligible to be enrolled in a [FEHB] plan.” Complaint ¶ 1.

OPM moved to dismiss the appeal, arguing that FEHB eligibility determinations are

not reviewable under the Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101–7109

(2018). UnitedHealth responded by arguing that it is not challenging the Government’s

decision to retroactively reenroll CM in UnitedHealth’s plan. We denied the motion, noting

our expectation that further proceedings would address, among other things, how “the

agency’s uncontested decision to retroactively approve the employee’s healthcare eligibility”

bears on UnitedHealth’s claim. UnitedHealthcare Insurance Co., CBCA 7357, 23-1 BCA

¶ 38,375, at 186,419, reconsideration denied, 24-1 BCA ¶ 38,505.

After completing discovery, the parties cross-moved for summary judgment. In

summary judgment briefing, UnitedHealth maintains that it is not contesting the retroactive

reenrollment decision. E.g., Appellant’s Motion for Summary Judgment at 11

(“UnitedHealth maintains that it is not contesting the Government’s retroactive enrollment

decision.” (emphasis omitted)); see also Oral Argument Transcript at 58-61. Instead, it

argues that the Government’s erroneous “coverage continues” statement in its June 2019

CLER message, along with a failure to correct that message until February 2020, constituted

the breach of contract that caused UnitedHealth’s claimed damages. According to

UnitedHealth, if not for the Government’s erroneous CLER message, UnitedHealth would

have disenrolled CM from its plan before she returned to duty with IRS in July 2019, and

there is a “reasonable possibility” that she would not have reenrolled in UnitedHealth’s plan

before the transplant procedure. Appellant’s Supplemental Brief at 3 (“[T]he Government’s

failure to timely provide accurate enrollment information caused UnitedHealth’s damages

because there is a reasonable possibility CM would not have reenrolled with UnitedHealth

if she had received, as she was entitled to, two opportunities to enroll [in a different FEHB

plan].” (emphasis omitted)).

After oral argument on the parties’ summary judgment motions, we requested that

UnitedHealth review its October 2021 certified claim letter and assess whether that letter

adequately described the basis for the claim that UnitedHealth is now advancing before the

Board. We asked UnitedHealth to either advise the Board if it intended to submit an

additional claim letter or, alternatively, explain how we should reconcile its continuing

statements that it is not contesting the retroactive enrollment with statements in its claim

letter asserting that its alleged damages were caused by an unlawful enrollment.

In response, UnitedHealth denies that its current arguments before the Board amount

to a different claim than that set forth in the October 2021 claim letter. UnitedHealth asserts:

CBCA 7357

7

The Claim provided the [contracting officer] with adequate notice of

UnitedHealth’s two alternative theories regarding how the Government’s

failure to timely provide accurate enrollment information caused Appellant’s

damages: (1) there is a reasonable possibility CM would have elected a

different plan in 2019 (thus eliminating the need for any retroactive enrollment

in 2020); and (2) the Government’s retroactive enrollment decision was

unlawful. In this appeal, Appellant is only pursuing its former theory of

causation, not the latter.

Appellant’s Supplemental Brief at 3 (internal citation and emphasis omitted).

Discussion

I.

Summary Judgment Standard

Summary judgment is appropriate when there is no genuine issue as to any material

fact and the movant is entitled to judgment as a matter of law. Rule 8(f) (48 CFR 6101.8(f)

(2024)); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). A fact is material if it

might affect the outcome. Anderson, 477 U.S. at 248. A dispute is genuine if a reasonable

factfinder could find in favor of the nonmoving party. Id.

II.

UnitedHealth Abandoned Its Unlawful-Retroactive-Reenrollment Claim

“A party abandons an issue when it has a full and fair opportunity to ventilate its

views with respect to an issue and instead chooses a position that removes the issue from the

case.” Milo & Gabby LLC v. Amazon.com, Inc., 693 F. App’x 879, 884 (Fed. Cir. 2017)

(quoting BankAmerica Pension Plan v. McMath, 206 F.3d 821, 826 (9th Cir. 2000)). As

described above, UnitedHealth asserted in its claim letter and its complaint that OPM

breached the parties’ contract by unlawfully retroactively reenrolling CM. UnitedHealth then

chose a position in this appeal that removed that issue from the case, abandoning its

contention that OPM breached the contract through an unlawful reenrollment. E.g.,

Appellant’s Supplemental Brief at 3. Accordingly, OPM is entitled to summary judgment

on UnitedHealth’s claim—or the portion of its claim—asserting that OPM breached the

contract through an unlawful reenrollment. See Milo & Gabby LLC, 693 F. App’x at 884.

However, as discussed below, the parties disagree as to whether the scope of UnitedHealth’s

claim in this appeal is limited to its abandoned unlawful-retroactive-reenrollment theory.

CBCA 7357

III.

8

The Parties’ Disagreement Regarding the Scope of UnitedHealth’s Claim

We have jurisdiction over the claim UnitedHealth presented to the contracting officer

in October 2021, but the parties disagree as to the scope of that claim. OPM argues that

UnitedHealth’s new theory of causation—the “reasonable possibility CM would have elected

a different plan in 2019” theory—amounts to a new claim that has not been presented to the

contracting officer, as required by the CDA. UnitedHealth insists that its current arguments

are part of the same claim that it presented in its October 2021 letter.

Before appealing to the Board under the CDA, a contractor must submit its claim to

the Government’s contracting officer for a decision. 41 U.S.C. §§ 7103(a)(1), 7104(a); Lee’s

Ford Dock, Inc. v. Secretary of the Army, 865 F.3d 1361, 1369 (Fed. Cir. 2017). “[T]he

Board may not consider ‘new’ claims a contractor failed to present to the contracting

officer.” Lee’s Ford Dock, Inc., 865 F.3d at 1369; Scott Timber Co. v. United States, 333

F.3d 1358, 1365 (Fed. Cir. 2003) (“An action brought . . . under the CDA must be ‘based on

the same claim previously presented to and denied by the contracting officer.’”). “A claim

is new when it ‘present[s] a materially different factual or legal theory’ of relief.” Lee’s Ford

Dock, Inc., 865 F.3d at 1369 (quoting K-Con Building Systems, Inc. v. United States, 778

F.3d 1000, 1006 (Fed. Cir. 2015)). “Materially different claims ‘will necessitate a focus on

a different or unrelated set of operative facts.’” Id. (quoting Placeway Construction Corp.

v. United States, 920 F.2d 903, 907 (Fed. Cir. 1990)).

UnitedHealth asserts that its October 2021 claim letter presented two causation

theories—the theory that it is no longer pursuing and its current “reasonable possibility”

theory—or, alternatively, that its current arguments merely add factual details or legal

augmentation, without creating a different claim. UnitedHealth does not identify any specific

language in its claim letter articulating its current causation theory, and the text of that letter

does not support its contention that the letter presented two alternative causation theories.

The letter asserted that the Government’s “unlawful enrollment” caused UnitedHealth’s

alleged damages. Exhibit 13 at 11 (“The Government’s unlawful enrollment caused

UnitedHealth to pay $3,838,510.70 in claims for healthcare services provided to the

dependent child of an individual who was not eligible to be enrolled in [the] Plan.”). No

alternative causation theory was presented.

Although the claim letter did not articulate UnitedHealth’s current theory of causation,

the claim letter did include the factual allegations on which UnitedHealth now relies. Within

a section of the letter asserting that the Government failed to perform its contractual duty to

provide accurate enrollment information, UnitedHealth described both the erroneous June

2019 CLER message and the May 2020 reenrollment application. Exhibit 13 at 4, 8.

CBCA 7357

9

Notwithstanding the factual overlap, we are skeptical that UnitedHealth’s current

theory of causation is part of the same claim that it presented in its October 2021 claim letter.

Regardless, in this appeal, OPM is entitled to summary judgment under either party’s view

as to the scope of the claim before the Board, and we decline to decide the parties’ dispute

regarding the scope of UnitedHealth’s claim here.4 If UnitedHealth’s current theory amounts

to a new claim, such that the only claim properly before the Board is the unlawfulretroactive-reenrollment theory, OPM is entitled to summary judgment on that claim because

UnitedHealth abandoned it, as discussed above. Alternatively, assuming UnitedHealth’s

position is correct and its current arguments are part of the same claim that it presented in its

October 2021 letter, OPM is still entitled to summary judgment because, as discussed below,

UnitedHealth has not presented an adequate theory, or sufficient evidence, of causation to

warrant a hearing.

IV.

UnitedHealth’s Theory and Evidence of Causation Are Inadequate

A.

UnitedHealth’s Burden to Establish the Non-breach World

To recover for breach of contract, UnitedHealth must prove: “(1) a valid contract

between the parties, (2) an obligation or duty arising out of the contract, (3) a breach of that

duty, and (4) damages caused by the breach.” San Carlos Irrigation & Drainage District v.

United States, 877 F.2d 957, 959 (Fed. Cir. 1989). The last element includes the requirement

that UnitedHealth establish a causal connection between the alleged breach and its claimed

damages. See San Carlos Irrigation & Drainage District v. United States (San Carlos

Irrigation II), 111 F.3d 1557, 1563 (Fed. Cir. 1997).

Causation is a question of fact. Bluebonnet Savings Bank, F.S.B. v. United States, 266

F.3d 1348, 1356 (Fed. Cir. 2001). Although UnitedHealth need not prove causation at this

stage of the proceedings, to survive summary judgment, it must present evidence on which

a reasonable factfinder could find that the alleged breach caused the claimed loss under the

governing law. See Anderson, 477 U.S. at 255-56.

Under the governing law, as reiterated by the Court of Appeals for the Federal Circuit

on several occasions, the necessary causation showing requires a comparison between the

breach world—i.e., the events that actually occurred—and the non-breach, or “but for,”

world—a hypothetical world in which there was no breach. Community Health Choice, Inc.

v. United States, 970 F.3d 1364, 1381 (Fed. Cir. 2020) (“[O]ur cases make clear that the

4

Although we ordinarily resolve questions regarding our jurisdiction under the

CDA first, we are not obligated to do so in every instance. See Minesen Co. v. McHugh, 671

F.3d 1332, 1337 (Fed. Cir. 2012).

CBCA 7357

10

plaintiff seeking to recover damages must prove causation by comparing a hypothetical ‘but

for’ world to a plaintiff’s actual costs.” (cleaned up)); Oliva v. United States, 961 F.3d 1359,

1363 (Fed. Cir. 2020); Vermont Yankee Nuclear Power Corp. v. Entergy Nuclear Vermont

Yankee, LLC, 683 F.3d 1330, 1349-50 (Fed. Cir. 2012); Energy Northwest v. United States,

641 F.3d 1300, 1305 (Fed. Cir. 2011); Yankee Atomic Electric Co. v. United States, 536 F.3d

1268, 1273 (Fed. Cir. 2008). “It is only by comparing this hypothetical ‘but-for’ scenario

with the parties’ actual conduct that [one] can determine what costs were actually caused by

the breach, as opposed to costs that would have been incurred anyway.” Energy Northwest,

641 F.3d at 1305. The burden is on UnitedHealth to demonstrate that the non-breach world

would not have included its claimed loss. See Community Health Choice, Inc., 970 F.3d at

1381; Energy Northwest, 641 F.3d at 1305 (“[A] plaintiff seeking damages must submit a

hypothetical model establishing what its costs would have been in the absence of breach.”).

Causation may then be judged under a “but for” test or, in some cases, a “substantial

factor” test. See Citizens Federal Bank v. United States, 474 F.3d 1314, 1318 (Fed. Cir.

2007). Under the “but for” test, the non-breaching party “must show that but for the breach,

the damages alleged would not have been suffered.” San Carlos Irrigation II, 111 F.3d at

1563. Under the “substantial factor” test, the non-breaching party must show that “the

breach was a substantial factor in causing the damages.” Citizens Federal Bank, 474 F.3d

at 1318.5 Neither test requires that the breach be the “sole factor or sole cause” of the loss.

California Federal Bank v. United States, 395 F.3d 1263, 1268 (Fed. Cir. 2005). Although

the Federal Circuit has described the “but for” test as preferred and “more traditional,”

Yankee Atomic, 536 F.3d at 1272, it has afforded trial forums substantial discretion to select

an appropriate standard. Citizens Federal Bank, 474 F.3d at 1318 (Fed. Cir. 2007) (“[T]he

selection of an appropriate causation standard depends upon the facts of the particular case

and lies largely within the trial court’s discretion.”).

UnitedHealth relies on the “substantial factor” test in its supplemental brief. E.g.,

Appellant’s Supplemental Brief at 3 (“Prevailing on this theory [that “there is a reasonable

possibility CM would have elected a different plan in 2019”] would . . . satisfy the

‘substantial factor’ standard.”). Previously, it presented its causation arguments under a “but

5

Decisions within the Federal Circuit typically state or imply that the

“substantial factor” test is more lenient than the “but for” test, although decisions from other

circuits may treat the “substantial factor” test as the stricter standard. See Daniel P.

O’Gorman, Contracts, Causation, and Clarity, 78 U. Pitt. L. Rev. 273, 289-98 (2017). The

Court of Federal Claims has stated that a “breach is a ‘substantial factor’ causing [a loss] if

it directly and primarily caused the injuries.” American Savings Bank, F.A. v. United States,

62 Fed. Cl. 6, 26 (2004), aff’d, 519 F.3d 1316 (Fed. Cir. 2008).

CBCA 7357

11

for” rubric. E.g., Appellant’s Summary Judgment Response and Reply at 14 (“[T]he result

would have changed, demonstrating but-for causation between the breaches and damages.”).

We need not decide which test we would ultimately apply in this appeal. A showing

regarding the non-breach world is required under either test, as the Federal Circuit’s decision

in Yankee Atomic makes clear. 536 F.3d at 1273. In Yankee Atomic, the Federal Circuit

permitted the use of a “substantial factor” test but decided that the trial court had not applied

that test correctly. Id. The Federal Circuit determined that the trial court “erred in

overlooking the [plaintiffs’] burden to prove causation,” finding that the plaintiffs had not

presented adequate evidence to allow the trial court to “perform the necessary comparison

between the breach and non-breach worlds.” Id. Thus, under either the “but for” test or a

“substantial factor” test, demonstrating a non-breach world that does not include the loss at

issue is required.

B.

Lack of an Adequate Theory or Evidence of the Non-breach World

UnitedHealth has not presented an adequate theory, or sufficient evidence, of the nonbreach world to warrant a hearing. To recover in this case, UnitedHealth must demonstrate

that in the non-breach world it would not have paid the $3,838,510.70 in claims. That hinges

on whether CM would have been enrolled in UnitedHealth’s plan as of March 12, 2020, the

date of the heart transplant procedure. Accordingly, the non-breach world that UnitedHealth

must ultimately establish is one in which CM is not enrolled in UnitedHealth’s plan on

March 12, 2020.

UnitedHealth has not presented evidence that would allow a reasonable factfinder to

conclude that CM would not have been enrolled in UnitedHealth’s plan on March 12, 2020,

in the non-breach world. In its summary judgment briefs, UnitedHealth does not assert that

it can, or even plans to, make that showing. In its most recent brief, UnitedHealth indicates

that its causation theory is that “there is a reasonable possibility CM would not have

reenrolled with UnitedHealth” if she had been disenrolled earlier. Appellant’s Supplemental

Brief at 3 (emphasis omitted). A “reasonable possibility” will not suffice. See Myerle v.

United States, 33 Ct. Cl. 1, 27 (1897) (“[T]he cause must produce the effect inevitably and

naturally, not possibly nor even probably.”); see also California Federal Bank, 395 F.3d at

1268 (“[T]he causal connection . . . must be ‘definitely established.’”). Although the

standard is only a preponderance of the evidence, see California Federal Bank, 395 F.3d at

1268, it is nonetheless incumbent on UnitedHealth to prove that CM would not have been

enrolled in its plan on March 12, 2020, absent the alleged breach, not merely to establish the

existence of that possibility.

CBCA 7357

12

UnitedHealth asserts that, absent the alleged breach, it would have disenrolled CM

from its plan earlier, apparently before she returned to duty with the IRS in July 2019.6 After

such a disenrollment, UnitedHealth explains, various things might have happened next.

Appellant’s Summary Judgment Response and Reply at 14. One possibility is that CM might

have found other health insurance, outside of the FEHB Program. But another possibility,

as UnitedHealth acknowledges, is that she could have subsequently reenrolled in an FEHB

plan, including the same UnitedHealth plan that she had previously selected. UnitedHealth

does not argue that one possibility is more likely than another. See, e.g., id. at 15 (“In each

of the above scenarios, CM would have had the opportunity to enroll in a health care plan

under the FEHB, the Affordable Care Act, or any number of other methods for obtaining

health care coverage (e.g., through a spouse’s employment). The Government’s contract

breach precluded those opportunities.”). The distinction between a scenario in which CM

finds other insurance, versus a scenario in which she reenrolls in the same UnitedHealth plan,

is critical to UnitedHealth’s case, given that there are admittedly no damages under the latter

scenario. Oral Argument Transcript at 22.

At oral argument, UnitedHealth conceded that it has not presented evidence that CM

would not have reenrolled in UnitedHealth’s plan after a hypothetical pre-procedure

disenrollment:

Board Judge:

[I]n the . . . non-breach hypothetical world . . .

what is UnitedHealthcare’s position as far as what

that world looks like? Does it just end with she

would have been disenrolled in 2019, and then

any number of things could have happened? Or

does UnitedHealthcare have evidence on which it

could go further and say what more likely than not

would have happened after the disenrollment?

Appellant’s Counsel:

So, Your Honor, it’s a good question. And I

certainly standing here don’t have insight into the

mind of CM and what she would or wouldn’t

have done. But we, neither party I think has put

forth evidence in this appeal that would provide

6

UnitedHealth does not specify exactly when the disenrollment would have

occurred in the non-breach world, but its arguments indicate that the disenrollment would

have occurred before CM’s July 2019 return to duty. E.g., Appellant’s Supplemental Brief

at 3-4 (asserting that, if not for the alleged breach, CM could have made an FEHB election

upon returning to duty on July 8, 2019).

CBCA 7357

13

evidence [of] what she would have done in this

hypothetical scenario.

Oral Argument Transcript at 24 (cleaned up).

OPM disagrees with the assertion that neither party presented evidence of what CM

would have done in the non-breach world. Id. at 39-40. Indeed, there is considerable

evidence that CM wished to be enrolled in UnitedHealth’s plan, suggesting that an earlier

disenrollment would have led to a reenrollment in the same plan. OPM’s strongest evidence

in this regard is that CM took no action during the open season in late 2019, when all FEHB

participants had an opportunity to change insurance plans. At that time, CM remained

enrolled in UnitedHealth’s plan, so her decision not to make any enrollment change was

indicative of a desire to remain enrolled in UnitedHealth’s plan for the 2020 plan year.7

Other evidence also supports OPM’s position. For instance, when CM returned to duty with

the IRS in July 2019, although she made no FEHB enrollment election or change, she called

UnitedHealth’s customer service department to verify coverage for herself and her family.

Exhibit 6c.

When asked at oral argument about OPM’s proffered evidence that CM wished to be

enrolled in UnitedHealth’s plan, UnitedHealth again acknowledged that it has not presented

any evidence to the contrary:

Board Judge:

7

[OPM] asserted, with some support in the record,

that there is evidence here that CM desired this

United Healthcare insurance plan . . . [and] that

she didn’t do anything during open season, among

maybe some other things, is evidence that what

would have happened in . . . the hypothetical

non-breach world is . . . she would have

reenrolled before the transplant procedure.

Even if one imagines a non-breach world in which the disenrollment occurred

after the end of the late-2019 open season, it does not necessarily follow that CM would have

been forced to forgo FEHB coverage for the 2020 plan year. See 5 CFR 890.301(c) (2019)

(“Belated enrollment. When an employing office determines that an employee was unable,

for cause beyond his or her control, to enroll or change the enrollment within the time limits

prescribed by this section, the employee may enroll or change the enrollment within 60 days

after the employing office advises the employee of its determination.”); see also id.

890.301(f)(5); Appellant’s Response to Respondent’s Statement of Facts ¶ 31.

CBCA 7357

14

[I]s there evidence to the contrary?

Appellant’s Counsel:

So . . . we haven’t put forth evidence to the

contrary. But I think the assumption that the

Government’s making is unsupported. . . . [T]he

reason that CM maintained status quo is because

she was never notified. . . . Had she been notified

we don’t know what she would have done.

Oral Argument Transcript at 63-65 (cleaned up).8

It is not OPM’s burden to prove that CM would have reenrolled in UnitedHealth’s

plan. Rather, as discussed above, for UnitedHealth to meet its burden to establish a

non-breach world that does not include its claimed loss, UnitedHealth must establish that CM

would not have been enrolled in its plan on March 12, 2020, absent the breach. UnitedHealth

has not presented any evidence that could support such a showing.9

In weighing OPM’s summary judgment motion, we are mindful that the “evidence of

[UnitedHealth] is to be believed, and all justifiable inferences are to be drawn in

[UnitedHealth’s] favor.” Anderson, 477 U.S. at 255. In this appeal, however, UnitedHealth

has offered no evidence to support its theory that UnitedHealth would have avoided the

payments at issue as a result of CM selecting a different insurance plan, and no such

inference would be justified on the record presented by the parties. OPM is, therefore,

entitled to summary judgment. See Pure Gold, Inc. v. Syntex (U.S.A.), Inc., 739 F.2d 624,

627 (Fed. Cir. 1984) (“A non-movant runs the risk of a grant of summary judgment by failing

to disclose the evidentiary basis for its claim.”). Because UnitedHealth has not presented

evidence on which a reasonable factfinder could conclude that UnitedHealth would not have

incurred the costs at issue in the non-breach world, we grant summary judgment for OPM.

8

UnitedHealth elected not to seek testimony or other evidence directly from CM

during discovery. See Oral Argument Transcript at 24-25.

9

Even if the burden were not on UnitedHealth, OPM would still prevail on

summary judgment in these circumstances. OPM has identified sufficient evidence to

support its position, while UnitedHealth has identified no evidence to the contrary. Thus,

there is no “evidentiary conflict on the record” to resolve through a hearing. See Mingus

Constructors, Inc. v. United States, 812 F.2d 1387, 1390 (1987) (“[T]he party opposing

summary judgment must show an evidentiary conflict on the record.”).

CBCA 7357

15

Decision

OPM’s motion for summary judgment is granted. UnitedHealth’s motion for

summary judgment is denied. The appeal is DENIED.

Daniel B. Volk

DANIEL B. VOLK

Board Judge

We concur:

Beverly M. Russell

BEVERLY M. RUSSELL

Board Judge

H. Chuck Kullberg

H. CHUCK KULLBERG

Board Judge