The United States District Court for the Northern District of Indiana dismissed the University of Notre Dame's action against the United States Department of Health and Human Services Secretary Kathleen Sebelius (and others) on December 31, 2012, stating that the University does not have standing to challenge
the validity of an Affordable Care Act provision that requires large employers
to provide employees with no-cost insurance coverage for contraceptives,
contraceptive devices, sterilizations, and patient counseling on such matters. See University of Notre Dame v. Sebelius, N.D. Ind., No,: 3-12-cv-253 (Dec. 31, 2012).
In dismissing the University's lawsuit, the Court found that the University could not show a concrete and imminent injury-in-fact because it was protected from enforcement by a temporary safe harbor adopted in February 2012. The safe harbor delays enforcement of the mandate against certain employers until the beginning of their first plan year after Aug. 1, 2013. It is expected to remain in effect until the women's preventive services mandate is amended to reflect the concerns of organizations like the University. The court also said the case was not ripe for judicial resolution, because the federal government has issued an advance notice of proposed rulemaking in furtherance of an anticipated amendment. According to the Court, “[t]he present regulatory requirement isn't sufficiently final for review to be ripe, because the defendants have announced it will be modified.”
In dismissing the University's lawsuit, the Court found that the University could not show a concrete and imminent injury-in-fact because it was protected from enforcement by a temporary safe harbor adopted in February 2012. The safe harbor delays enforcement of the mandate against certain employers until the beginning of their first plan year after Aug. 1, 2013. It is expected to remain in effect until the women's preventive services mandate is amended to reflect the concerns of organizations like the University. The court also said the case was not ripe for judicial resolution, because the federal government has issued an advance notice of proposed rulemaking in furtherance of an anticipated amendment. According to the Court, “[t]he present regulatory requirement isn't sufficiently final for review to be ripe, because the defendants have announced it will be modified.”
The Court also asserted that “Notre Dame's
claims aren't ripe, and they don't have standing to bring them.” Both
conclusions, it said, flowed “from the government's creation of a safe harbor
for certain employers (including Notre Dame) while it re-works the regulation.”
The school faced “no penalty or restriction based on the existing regulation,”
the court said.
By way of explanation, according to the Court, to have standing to maintain such lawsuits, a plaintiff must show a concrete and imminent injury-in-fact, a causal relationship between the injury and defendants' challenged conduct, and a likelihood that a favorable decision would redress the claimed injury. A plaintiff challenging an administrative regulation also must show that its claim is ripe—that is, that the regulation is sufficiently final that the controversy is ready for judicial review, it said. The Court found that the women's preventive services mandate was not sufficiently final to allow the University to show injury. Although the current regulation is final, the court said, “events following the regulation's adoption make clear that it isn't final.” Those events included the government's adoption of the safe harbor and announcement of its intention to change the rule to address concerns voiced by organizations like Notre Dame, it said. Although the Court conceded 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,'” the court noted that the government has taken “prompt and concrete action” that supported its intention to reconsider and modify the mandate.
By way of explanation, according to the Court, to have standing to maintain such lawsuits, a plaintiff must show a concrete and imminent injury-in-fact, a causal relationship between the injury and defendants' challenged conduct, and a likelihood that a favorable decision would redress the claimed injury. A plaintiff challenging an administrative regulation also must show that its claim is ripe—that is, that the regulation is sufficiently final that the controversy is ready for judicial review, it said. The Court found that the women's preventive services mandate was not sufficiently final to allow the University to show injury. Although the current regulation is final, the court said, “events following the regulation's adoption make clear that it isn't final.” Those events included the government's adoption of the safe harbor and announcement of its intention to change the rule to address concerns voiced by organizations like Notre Dame, it said. Although the Court conceded 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,'” the court noted that the government has taken “prompt and concrete action” that supported its intention to reconsider and modify the mandate.
