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.
Notre Dame HHS Mandate Lawsuit Dismissed on Standing and Ripeness Grounds
Well, it seems I was a bit…unripe in expressing the view that the HHS mandate suits seem not to be going the government’s way. The United States District Court for the Northern District of Indiana has dismissed the University of Notre Dame’s complaint against Health and Human Services on standing and ripeness grounds. Notre Dame falls within the safe harbor provision and so the as yet unknown ‘Advanced Notice of Proposed Rulemaking/putative proposed accommodation/vague promise of emendation of the current legal rule’ applies to it. I quote the court’s language (along with its citations to those cases dealing with entities within and outside the safe harbor, many of which we have discussed before at CLR Forum) at length, as it may be helpful to readers to have it all in front of them:
This is one of dozens of similar suits filed across the nation, and courts have ruled on similar dismissal motions in several of those cases. Some of those rulings dealt with plaintiffs not in the safe harbor; as will be seen, those plaintiffs’ circumstances are too dissimilar to Notre Dame’s for those rulings to be helpful. See, e.g., Grote Indus., LLC v. Sebelius, No. 4:12cv00134-SEB-DML S.D. Ind. Dec. 27, 2012); Hobby Lobby Stores, Inc. v. Sebelius, 870 F.Supp.2d 1278 (W.D.Okla. 2012), application for injunction denied 2012 WL 6698888 (U.S., Dec. 26, 2012) (Sotamayor, J.); Tyndale House Publishers, Inc. v. Sebelius, 2012 WL 5817323 (D.D.C., Nov. 16, 2012); Legatus v. Sebelius 2012 WL 5359630 (E.D.Mich., Oct. 31, 2012); O’Brien v. U.S. Department of Health and Human Services, 2012 WL 4481208 E.D.Mo., Sept. 28, 2012); Newland v. Sebelius, 2012 WL 3069154 (D.Colo., July 27, 2012).
Of the rulings involving plaintiffs in the safe harbor, all but one have found the claims unripe and the plaintiffs to have lacked standing. Zubik v. Sebelius, 2012 WL 5932977 (W.D.Pa., Nov. 27, 2012); Catholic Diocese of Nashville v. Sebelius, 2012 WL 5879796 (M.D.Tenn., Nov. 21, 2012); Wheaton College v. Sebelius, 2012 WL 3637162 (D.D.C. 2012), appeal held in abeyance 2012 WL 6652505 (D.C.Cir. 2012); Belmont Abbey College v. Sebelius, 2012 WL 2914417 (D.D.C. 2012), appeal held in abeyance sub nom Wheaton College v. Sebelius, 2012 WL 6652505 (D.C.Cir. 2012); Nebraska ex rel. Bruning v. U.S. Dept. of Health and Human Svcs., 2012 WL 2913402 (D.Neb. 2012); contra, Roman Catholic Archdiocese of New York v. Sebelius, 2012 WL 6042864 E.D.N.Y. ,2012). None of those rulings bind this court, but the majority are persuasive. Notre Dame’s claims aren’t ripe, and they don’t have standing to bring them.
Both conclusions flow from the government’s creation of a safe harbor for certain employers (including Notre Dame) while it re-works the regulation. As a result, Notre Dame faces no penalty or restriction based on the existing regulatory requirement . . . .
Turning first to ripeness, the challenged regulatory requirement isn’t sufficiently final. Notre Dame is correct that regulation itself claims to be final, 45 C.F.R. § 147.130(a)(1)(iv), but events following the regulation’s adoption make clear that it isn’t final. The defendants have announced their intention to refashion the rule in an effort to address concerns such as those Notre Dame has raised and, by virtue of the safe harbor provision, have exempted Notre Dame from the rule for the time believed to be required for the re-fashioning. The government is entitled to a presumption of good faith in such promises . . . .
Our defendants have taken prompt and concrete action — the safe harbor provision — indicating that its [sic] rule is subject to reconsideration and modification. Although Notre Dame is correct that an agency can’t “stave off judicial review of a challenged rule simply by initiating a new proposed rulemaking that would amend the rule in a significant way,” American Petroleum Institute v. EPA, 683 F.3d 382, 388 (D.C. Cir. 2012), none of the cases on which Notre Dame relies involve any parallel to the safe harbor provision that protects Notre Dame and others like it from the challenged rule.
Turning back to the question of standing, the challenged regulatory
requirement isn’t the cause of the injuries of which Notre Dame complains. Taking the defendants at their word concerning the intended reworking of the rule, this regulatory requirement won’t require Notre Dame to conduct itself in ways its Catholic mission forbids. This regulation’s replacement might do so, but no one can say because that future rule hasn’t been promulgated. It is enough to know that the present regulation is to be replaced by another, and the safe harbor is protecting Notre Dame from harm to its religious precepts until that replacement occurs.
Indeed, “no one can say” what the replacement rule might do because “no one can say” what the promised proposed rule is, or might be, or is contemplated to be. But every banana ripens at some point.
The case is University of Notre Dame v. Sebelius, No. 3:12CV253RLM (N.D. Ind. Dec. 31, 2012).
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Posted in Commentary, Marc O. DeGirolami
Tagged Contraception Mandate, Recent Cases, Ripeness, Standing