Here’s a little thought about the effect of the passage of time on adjudication. The temporal dynamic I have in mind is the difference between being too late and being too early. Being too late is best conceptualized in either/or terms. If you file on time, you’re “in” and your law suit can move forward; if you file too late, your action is time-barred or falls outside an applicable statute of limitations, and you are “out.” The issue of time is clean, hard-edged, and certain. Acceptable and unacceptable are clearly designated. The metaphors are of bells tolling, after which there is silence, or of nicely demarcated spatial boundaries. Any exceptions are just that: exceptions to the rule, rather than judgments about the interpretation of the rule.
But a different conception of time best describes the condition of being too early. Like a fruit, you want your action to be ripe. The metaphor is one of maturity, and it is inevitably subject to graduated and individuated assessment. The goal is to strike at a middle-point, at a moment between the time when the banana is cucumber-ish (unripe) and when it is a slimy, brown, putrid thing (overripe, or perhaps moot). Likewise, the manipulation of time in the context of the metaphor of maturation looks distinctive. The riper the action becomes – a function in part of the incremental passage of time – the more work the party resisting its ripeness must do to persuade the court that the time is not yet ripe to hear it. With each day, the banana becomes more golden, and its characterization as unripe becomes more challenging. And that is when the rhetoric of immaturity can assume an important function.
Take the HHS mandate litigation. My own view is that these issues of time were in part responsible for the Eastern District of New York’s rejection of the standing and ripeness challenge by the federal government, where previous courts, adjudicating the claims at previous moments in time, had found otherwise. Time had done, and may continue to do, its maturing work.
Yesterday, the United States Court of Appeals for the D.C. Circuit handed down a short order holding in abeyance Wheaton College’s complaint against HHS as, at present, unripe. The court dutifully noted the representation of the government in the Advance Notice of Proposed Rulemaking of the forthcoming accommodation/change/emendation/difference. But the court also said that at oral argument, “the government went further . . . . [I]t represented to the court that it will never enforce [the existing rule] in its present form against the appellants or those similarly situated . . . . We take the government at its word and will hold it to it.” The first italics is in the original; the second is mine.
A couple of thoughts. First, it is interesting to see that as time progresses, and the case moves toward maturity, the government must work harder, and extend itself further, to persuade a court that the case has not hit sufficient maturation just yet. So the government made the calculation that for the sake of gaining more time, it needed to promise “never” to enforce the existing rule against the claimants, a statement that, it would appear from the court’s language, it had not made before and had a psychological effect on the court’s judgments about maturity. Second, the precise language used by the court to describe the oral representation of the government is interesting. In order to stave off review but to keep things sufficiently vague to give itself maximal freedom, the government represented that it will not enforce the existing rule ”in its present form.” But that simply restates the promise that it plans to amend the rule. So one wonders exactly what of substance the oral representation adds to the government’s previous position. Perhaps nothing. It may instead be that the key function of the oral representation is rhetorical. It sounds like a change of position, though really it isn’t. But the effect of the representation is to make the banana look greener and less golden than it is. It is the kind of rhetoric that can make a difference when the question is whether you are too early, but not too late.