State of West Virginia v. HHS

Filing

OPINION [1622669] filed (Pages: 7) for the Court by Judge Silberman. [15-5309]

USCA Case #15-5309

Document #1622669

Filed: 07/01/2016

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 15, 2016

Decided July 1, 2016
No. 15-5309

STATE OF WEST VIRGINIA, EX REL. PATRICK MORRISEY,
APPELLANT
v.
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN
SERVICES,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 1:14-cv-01287)

Elbert Lin, Solicitor General, Office of the Attorney
General for the State of West Virginia, argued the cause for
appellant. With him on the briefs were Patrick J. Morrisey,
Attorney General, and Julie Marie Blake, Assistant Attorney
General.
Lindsey Powell, Attorney, U.S. Department of Justice,
argued the cause for appellee. With her on the brief were
Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, and Alisa B. Klein and Mark B. Stern, Attorneys.
Before: KAVANAUGH and WILKINS, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.

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Opinion for the Court filed by Senior Circuit Judge
SILBERMAN.
SILBERMAN, Senior Circuit Judge: This is rather an
unusual case. West Virginia has sued to challenge the
President’s determination not to enforce certain controversial
provisions of the Affordable Care Act for a transitional period.
That decision, implemented by a letter from the Secretary of the
Department of Health and Human Services, left the
responsibility to enforce or not to enforce these provisions to the
States, and West Virginia objects to being put in that position.
We conclude that West Virginia, not having suffered an injuryin-fact, lacks standing.
I.
The Act, as is well known, mandated minimum coverage
requirements for all health insurance plans offered in the
individual market.1 And it has been common in national health
care law to employ a dual federal-state enforcement
mechanism.2 Typically the States have the initial responsibility
to enforce the law, but if the States decline or fail to enforce, the
federal government is a backup enforcer. That approach was
followed in the Affordable Care Act provisions. See 42 U.S.C.
§ 300gg-22(a)(1).

1

Among other rules, policies are limited in what can be factored
into price variation, must be extended regardless of certain traditional
barriers such as medical history and health status, and may not
discriminate on several bases traditionally used to tailor plans to
individual consumers. See generally 42 U.S.C. § 300gg–300gg-6,
300gg-8.
2

See generally U.S. Dep’t of Treasury v. Fabe, 508 U.S. 491, 500
(1993). The Act primarily amended the Public Health Service Act.

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Insurance companies responded quickly to the new
requirement. Millions of cancellation notices were sent out in
the fall of 2013, warning policyholders their plans would be
illegal once the new regulation took effect. All hell broke loose
as policies were cancelled, leading to Congressional promises to
modify the law to prevent cancellations.
The President acted, allegedly, to pre-empt Congress. He
announced the federal government would hold off on enforcing
the statutory requirements. Accordingly, HHS sent a letter to
the States announcing a “transitional policy,” allowing health
insurers with certain conditions3 to continue policies that would
be outlawed under the statute for a period of a year (later
extended for another three years).
That left the States holding the bag. They had to decide
whether to enforce or not to enforce the very conditions that the
federal government determined to abandon for the transitional
period. West Virginia initially decided to enforce, but after
HHS extended the transitional period, West Virginia opted to
decline to enforce the mandates.
The State brought suit for declaratory and injunctive relief.
It argued that the new policy violates the plain language of the
Act, which mandates that the Secretary “shall” enforce the
requirements, when States do not. While there may be room for
case-by-case enforcement discretion, the State claimed, HHS
was not at liberty to decline wholesale enforcement of the

3

Insurers were required to make disclosures to policyholders
about the noncompliance of their plans, as well as make information
available for enrollment in another, compliant plan, should the holder
so choose.

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provisions.4 Moreover, the State claimed the new policy
violated the APA because it amounted to a substantive and
binding rule that was issued without the required notice-andcomment.
West Virginia also brought two constitutional claims. It
contended that the federal non-enforcement policy unlawfully
delegated away federal executive authority. And it argued that
the policy violated the Tenth Amendment by foisting upon
States the final and determinative decision as to whether the
Act’s market requirements would be enforced within the State
itself. This, the State alleged, blurred the lines of political
accountability identified as crucial in previous cases such as
Printz v. United States, 521 U.S. 898 (1997), and New York v.
United States, 505 U.S. 144 (1992).
Perhaps the most peculiar aspect of the case is the preferred
remedy sought. West Virginia seeks a declaratory judgment that
the Administration’s actions are illegal, but not “vacatur” of the
Secretary’s letter, apparently to induce the Administration to
negotiate a statutory fix from Congress. Only if that failed
would equitable relief be sought.
The district court concluded West Virginia lacked standing
because it had not suffered an injury-in-fact, and this appeal
followed.

4

A similar argument was levied against Administration
immigration policy. See Texas v. United States, 809 F.3d 134 (5th Cir.
2015), cert. granted, 136 S. Ct. 906 (U.S. Jan. 19, 2016) (No. 15-674).
Unlike the States in the Texas case, however, the State of West
Virginia has not argued (presumably because it cannot argue) that the
federal government’s decision not to enforce the statute has itself
imposed monetary costs on West Virginia.

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II.
Although Appellant challenges the federal government’s
decision to decline enforcement, West Virginia conceded at oral
argument that its claim of injury-in-fact is identical to that which
would exist if Congress had initially provided that only States
had authority to enforce the federal mandate. It is claimed that
if Congress were to do that, it would be illegally enlisting States
to bear the responsibility, politically, to decide whether to
enforce, or implement, a federal statute. In this case, instead, it
is the federal government’s enforcement decision that allegedly
created the same injury. But we simply do not understand why,
in either case, the grant of that discretion to the States creates an
injury-in-fact.
Appellant relies on the Supreme Court case holdings, in
Printz and New York, that federal statutes that compel States to
implement those statutes violate the Constitution. The closer
case, Printz, did hold that a statute requiring state legal officers
to conduct background checks on gun purchases was
unconstitutional (based primarily on implications from the
structure of the Constitution). But in their opinion, the majority
explained the key to its conclusion was that the State was
compelled to carry out a federal command. See Printz, 521 U.S.
at 924-35. The same was true in New York, which involved a
federal law that required States to either pass legislation dealing
with radioactive waste disposal, or to take title to and possession
of it. See New York, 505 U.S. at 151-54. Since in both cases the
States were compelled to act, no issue of standing was even
raised or discussed.
Appellant would extend those cases to the proposition that
when the federal government abandons enforcement of a federal
statute, leaving States with the responsibility (or, for that matter,
Congress delegates discretion to implement a federal statute

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directly to a state), that also is unconstitutional. Requiring the
States to assume the political responsibility of deciding whether
or not to implement a federal statute supposedly creates an
injury-in-fact.
There is simply no support for this extraordinary claim.
Although Appellant dresses up its argument as a breach of State
sovereignty in violation of the Tenth Amendment, its injury is
nothing more than the political discomfort in having the
responsibility to determine whether to enforce or not – and
thereby annoying some West Virginia citizens whatever way it
decides. And no court has ever recognized political discomfort
as an injury-in-fact. We do not doubt that West Virginia now
confronts different political terrain than it did before HHS
announced its new non-enforcement policy. But we do not think
that represents cognizable legal injury. Increased political
accountability of this nature – greater likelihood of political
consequence in making a decision – is the kind of inherently
immeasurable harm that our standing doctrines have been
designed to screen out. Time, and time again, it has been
stressed that an injury must be “concrete.” See Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560 (1992).
Rather cleverly, West Virginia insists – which is generally
true – that we must assume the merits of its claim when
determining whether standing exists. See City of Waukesha v.
EPA, 320 F.3d 228, 235 (D.C. Cir. 2003). Therefore, we have
to acknowledge, according to Appellant, that the claimed
encroachment into the State’s sovereignty was an injury-in-fact.
Still, even assuming that the administration’s action created a
theoretical breach of State sovereignty, West Virginia
nevertheless lacks a concrete injury-in-fact. The case is
analogous to those in which the government’s actions are
asserted to be unconstitutional but the plaintiff raises only a

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“generally available grievance;” its injury is not particular. See
Lujan, 504 U.S. at 573-74.
West Virginia’s secondary argument is that any party,
whether or not a governmental entity, has standing to challenge
a delegation from the government to carry out a governmental
responsibility. For that proposition, Appellant relies on Carter
v. Carter Coal Co., 298 U.S. 238 (1936). Without belaboring
the complexities of that case, it is sufficient to note that standing
was never discussed so, as is well known, the case is not a
precedent for standing. See, e.g., Will v. Mich. Dep’t of State
Police, 491 U.S. 58, 63 n.4 (1989). In any event, Appellant’s
claim is an untenable stretch. For instance, if Congress gave the
D.C. Circuit authority, so long as we chose to use it, to set
electrical rates in the country as we pleased, we certainly would
not have standing to challenge that delegation as
unconstitutional. Nor would the Secretary of Energy, if given
the same authority.5
* * *
For the foregoing reasons, the district court is affirmed.
So ordered.

5

The requested remedy – remand without vacatur, so as to goad
the President into working with Congress for a legislative solution –
further suggests that Appellant’s claim is basically a policy-based
dispute.

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