The case that began as House of Representatives v. Burwell, and is now House of Representatives v. Hargan, has been lingering in the D.C. Circuit for months. With the various legislative efforts to repeal the ACA, the court has kept the case on hold. Today, two filings were made in the District Court that should bring the case to a close.
First, a joint motion for an indicative ruling was filed by the Defendants (Trump administration) and the Plaintiff (House of Representatives). The Democratic Attorneys General who intervened in the D.C. Circuit concurred in the motion. FRCP Rule 62.1 allows a district court to issue an indicative ruling, that is to indicate how it would rule, once a case is no longer tangled up on appeal. (Senator Kennedy will surely ask about this rule during the next confirmation hearing.) The parties ask Judge Collyer that, upon remand from the D.C. Circuit, to vacate one sentence from her May 12, 2016 order:
…respectfully request that this Court issue an indicative ruling stating that, if the case is remanded by the court of appeals, this Court will vacate the portion of its final order providing that “reimbursements paid to issuers of qualified health plans for the cost-sharing reductions mandated by Section 1402 of the Affordable Care Act, Pub. L. 111-148, are ENJOINED pending an appropriation for such payments.” ECF No. 74, United States House of Representatives v. Burwell, et al., No. 1:14-cv-01967-RMC (D.D.C.). The States that intervened on appeal have authorized the parties to represent that the States support this motion.
In other words, the court’s entry of judgment for the plaintiff, and the denial of the defendants’ motion to dismiss, remain on the books. The only part that will be vacated is the court’s order to the executive branch to stop making the payments. Huh? Didn’t President Trump already announce that he would stop making the payments? And why would the states go along with this.
I read this as something of a compromise between the parties. Though the House and Senate are both controlled by Republicans, they have different institutional prerogatives. The defendants do not want a court order on the books instructing the executive branch to stop making payments. The plaintiff likes a ruling that the House can bring such a suit. If this litigation proceeded, the House may get a ruling that such standing was improper. This settlement thus maintains a status quo of sorts. The payments won’t get made, there is no ongoing order concerning the executive’s obligation to make the payments, and the D.C. Circuit won’t decide if standing is appropriate for the House of Representatives. Also, the states had little chance of success here. Rather, the litigation will shift to the Court of Federal Claims as insurers seek reimbursements for the CSR paymetns, and in other parallel actions.
This understanding is buttressed by the second document filed, the proposed settlement, by which the parties agree not to cite Judge Collyer’s opinion for any preclusive effect:
The Parties recognize that the Executive Branch of the United States Government (“Executive Branch”) continues to disagree with the district court’s non-merits holdings, including its conclusion that the House had standing and a cause of action to bring this suit. The Parties agree that because subsequent developments have obviated the need to resolve those issues in an appeal in this case, the district court’s holdings on those issues should not in any way control the resolution of the same or similar issues should they arise in other litigation between the House and the Executive Branch. The Parties also recognize that the States continue to disagree with the district court’s merits holding. Accordingly, if the court of appeals grants the Joint Motion, the Parties agree that the district court’s holding on the merits should not in any way control the resolution of the same or similar issues should they arise in other litigation, and hereby waive any right to argue that the judgment of the district court or any of the district court’s orders or opinions in this case have any preclusive effect in any other litigation.
Fascinating. They promise to never cite Judge Collyer’s opinion. Thus, the case was settled on the grounds that the court’s opinion does not set that precedent.