The United States Court of Appeals for the District of Columbia, in a short order, has held the United States to its word that it will change the Patient Protection and Affordable Care Act rules requiring employers to provide contraceptive services at no cost. The order in Wheaton College v. Sebelius comes after oral argument in which counsel for the United States made promises that the Government would propose a new rule in the first quarter of 2013 and a final rule by August 2013. This brief order reflects a continuing skepticism about Government agencies changing rules in the midst of litigation.
Case Background: Wheaton College and its co-appellant Belmont Abbey College sought relief from the Department of Health and Human Services (HHS) interim final rules requiring that they, as employers, provide preventative (contraceptive) care to employees at no cost because the colleges believe that such a requirement violates their religious tenets and, therefore, the First Amendment guarantee of freedom of religion. The United States District Court for the District of Columbia dismissed both cases on the ground that the colleges lacked standing and that HHS’s pending rules changes – announced only through an advance notice of proposed rulemaking – rendered their claims unripe for review.
The court of appeals heard extended argument only last Friday on this issue, and summarily disposed of the standing issue, noting that standing is determined at the time of filing of the complaint – plaintiffs had standing at that time.
The ripeness issue, the court noted, “is more difficult.” The court noted that counsel for the “Government” went further than HHS during oral argument:
First, it represented to the court that it would never enforce [the regulation] in its current form against the appellants or those similarly situated as regards contraceptive services. …. There will, the government said, be a different rule for entities like the appellants, and we take that as a binding commitment. The government further represented that it would publish a Notice of Proposed Rulemaking for the new rule in the first quarter of 2013 and would issue a new Final Rule before August 2013. ….
We take the government at its word and will hold it to it. …. Based expressly upon the understanding that the government will not deviate from its considered representations to this court, we conclude that the cases are not fit for review at this time because “[i]f we do not decide [the merits of appellants’ challenge to the current rule] now, we may never need to.”
(brackets in original). The court, therefore, held the cases in abeyance and requires the Government to provide status reports every 60 days.
Larger Issue Background: The Government has taken the position on a number of occasions – whether dealing with the contraceptives or other rules – that its expressed intent to change a rule makes legal challenges to the rule unripe for review. Similarly, the Government takes the position that once it has changed a rule, it is the new rule that applies – and has done so at the late stages of litigation.
Recent Supreme Court argument illuminated concern that the Government has been less than candid in advising the court of its intentions. Certainly, the Government may change the rules, but the questions raised must be carefully parsed:
- Has the Government committed to a rule change? The issue here is presented only by an “advance notice of proposed rulemaking” (ANPRM), which is little more than a tool for acquiring information and most often contains no rule text or a basis for later objection that the submitting agency has adopted a rule that is not a logical outgrowth of its proposed rule. An ANPRM can be so vague that the degree of “commitment” is nebulous.
- Has the Government committed to a rule change? The court of appeals order must be taken at face value: it is relying upon not only the HHS commitment, but also the Government’s commitment in the form of the statements of a Department of Justice (DOJ) attorney representing the United States, not just one agency. Whether intentional or not, the Office of Management and Budget (OMB) must be on notice that the court is relying on a commitment that it will be required to meet. In addition, note the converse: that an independent agency’s counsel appearing in court cannot, and mostly need not, obligate the “United States,” whereas a DOJ attorney – and particularly the Solicitor General – may obligate independent agency and the United States. The complexities of representation and independence are a separate subject.
- Does commitment to a rule change make a case unripe or just “ripening”? The traditional result of a lack of ripeness is dismissal, but the court held the cases in abeyance – another signal that the Government’s word will be enforced until that day when the court may evaluate the application of the plaintiffs / appellants claims against that new rule.
Orders and Reports: This is not the first, nor will it be the last, order that the Government report to the court on the status of pending contraceptive regulations – it is a common device. An abeyance and report order says that the court will manage its docket to protect the pending interests in litigation – as well it should. The Government’s obligation is to fair and efficient adjudication, not just winning.