United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
PHILIP
P. SIMON, JUDGE
This
lawsuit is the continuation of a longstanding dispute over
the provision of contraceptive services for students and
employees of the University of Notre Dame. There are really
two separate disputes at play here. The first involves a
challenge to regulations that would allow Notre Dame to
declare itself exempt from the Women's Health Amendment
of the Patient Protection and Affordable Care Act
(“ACA”). This first challenge is being brought
against the federal agencies responsible for the
implementation of the challenged regulations - the Department
of Health and Human Services, the Department of Labor, and
the Department of the Treasury. For ease of reference I will
refer to this group as the “Federal Defendants.”
The regulations are being challenged under the Administrative
Procedures Act (“APA”), and they have already
been enjoined by two different district courts and those
preliminary injunctions have been affirmed in the Ninth and
the Third Circuits.
The
second part of this case presents a wrinkle not present in
the cases out of the Third and Ninth Circuits. Notre Dame has
been named as a defendant because a week after issuing the
interim final rules (“IFRs”), the Federal
Defendants executed a private settlement agreement with Notre
Dame exempting the university from all existing and
future requirements with respect to contraceptive
coverage. Notre Dame did not seek input from its students or
faculty before entering into the settlement agreement. The
Plaintiffs in this case - Irish 4 Reproductive Health (an
association of Notre Dame students), Natasha Reifenberg, and
Jane Does 1-3 - claim this backroom deal is illegal and
unconstitutional.
Two
motions to dismiss the amended complaint are before me: one
filed by Notre Dame, and the other by the Federal Defendants.
The motions will largely be denied because Plaintiffs have
stated plausible claims that the Final Rules violate the
procedural requirements of the APA, the Settlement Agreement
and Final Rules substantively violate the APA, the Settlement
Agreement is void for illegality, and the Settlement
Agreement and Rules violate the Establishment Clause.
Dismissal is only warranted for two of the constitutional
claims.
Factual
Background
This is
not the first time a controversy involving Notre Dame, the
ACA and the provision of contraceptive care has arrived at my
doorstep. In December 2013, Notre Dame unsuccessfully sought
to enjoin an earlier version of the ACA's Women's
Health Amendments. Much has changed in the six years since I
last considered this issue. But before I dive into the legal
morass presently before the court, a brief recounting of the
extensive litigation history surrounding the ACA's
contraception mandate is necessary to give some context about
how we got here. To put it mildly, litigation over the
contraceptive mandate of the ACA has been widespread and
vigorous. It reached the Supreme Court in 2016 but the Court
essentially punted on the issue hoping that the parties could
just resolve the matter on their own. No such luck. And so
the fight trundles on.
Here's
how we got here: the Women's Health Amendment to the ACA
was passed in 2010 and requires insurance plans to cover
women's preventive health services. Critically, the
services must be provided without cost-sharing. [Am. Compl.
¶ 51; 42 U.S.C. § 300gg-13(a)(4).] While the Act
itself does not specify the types of women's preventive
care that must be covered, it does require coverage for such
“additional preventive care and screenings . . . as
provided for in comprehensive guidelines supported by the
Health Resources and Services Administration [HRSA].”
42 U.S.C. § 300gg-13(a)(4). HRSA, in turn, commissioned
the Institute of Medicine to convene a committee of experts
on women's and adolescents' health and disease
prevention to review their preventive-health needs and
produce a report recommending the preventive services that
should be included in the Guidelines. [Am. Compl. ¶ 59;
Institute of Medicine, Clinical Prevention Services for
Women: Closing the Gaps (2011) (“IOM
Report”)[1].]
The
Institute of Medicine found that access to contraception
reduces unintended pregnancies, abortions, adverse pregnancy
outcomes, and negative health consequences for women and
children, and that even small out-of-pocket costs
significantly reduce the use of contraception. [Am. Compl.
¶ 60.] Based on these findings, the Institute
recommended that HRSA should include critical preventive
services for women that must cover the “full range of
Food and Drug Administration-approved contraceptive methods,
sterilization procedures, and patient education and
counseling for women with reproductive capacity.”
[Id.; see IOM Report at 109-10.]
In
August 2011, HRSA adopted the Guidelines, implementing the
recommendation requiring coverage of the full range of
FDA-approved contraceptive methods for women. [Am. Compl.
¶ 61.[2] In regulations implementing the
Women's Health Amendment, it was acknowledged that
“cost sharing can be a significant barrier to effective
contraception” and that “[c]ontraceptive
coverage, by reducing the number of unintended and
potentially unhealthy pregnancies, furthers the goal of
eliminating [the gender] disparity [in health coverage] by
allowing women to achieve equal status as healthy and
productive members of the job force.” [Am. Compl.
¶ 65; 77 Fed. Reg. 8, 725, 8, 728 (Feb. 15, 2012).]
Shortly
thereafter, in 2013, the government created a regulatory
exemption from the contraceptive requirement for houses of
worship. [Am. Compl. ¶ 66; 78 Fed. Reg. 39, 870-01, 39,
874 (July 2, 2013).] Certain religiously affiliated employers
and universities (like Notre Dame) that didn't qualify
for the house-of-worship exemption objected to having to
include coverage for contraception in their insurance plans.
[Am. Compl. ¶¶ 3, 66-67.]
From
this discontent, the so-called “accommodation”
was born. See 78 Fed. Reg. 39, 870, 39, 871 (July 2,
2013). Through this process, an objecting employer or
university could inform the government, or the entity's
insurer or third-party administrator, that it had religious
objections to providing coverage for contraceptive services.
[Am. Compl. ¶¶ 3, 72; 26 C.F.R. §
54.9815-2713A(2015).] This was accomplished by filling out a
one page opt out form and providing it to the entity's
insurance issuer or third-party administrator who would, in
turn, fulfill its legal obligation by separately providing or
arranging payments for contraceptive services, without
cost-sharing. [Am. Compl. ¶¶ 3, 73; 78 Fed. Reg.
39, 875-80 (July 2, 2013).] This was an attempt by the
government to try and ensure the provision of contraceptive
services, on the one hand, while being respectful to the
legitimate religious concerns of religiously affiliated
employers, on the other.
But the
objectors were not mollified. Notre Dame, along with other
nonprofit religious organizations, filed suit challenging the
contraceptive mandate under the Religious Freedom Restoration
Act (“RFRA”). As referenced earlier, I issued an
opinion rejecting Notre Dame's RFRA claim in its quest
for a preliminary injunction, finding that making Notre Dame
comply with the accommodation did not impose a substantial
burden on its religious exercise. See Univ. of Notre Dame
v. Sebelius, 988 F.Supp.2d 912, 921-26 (N.D. Ind. 2013).
A divided panel of the Seventh Circuit affirmed. See
Univ. of Notre Dame v. Sebelius, 743 F.3d 547, 554 (7th
Cir. 2014), vacated on other grounds, 135 S.Ct. 1528
(2015).
Shortly
after the Seventh Circuit's decision in
Sebelius, the Supreme Court decided Burwell v.
Hobby Lobby Stores, Inc., 573 U.S. 682 (2014) in which
Hobby Lobby, a closely held corporation, objected under RFRA
to providing contraceptive services to its employees. The
Supreme Court agreed, holding that a closely held corporation
with a religious objection is exempt from the contraceptive
mandate if there is a less restrictive means of furthering
the law's interest. In response to Hobby Lobby,
the government extended the accommodation to certain closely
held for-profit entities with religious objections to
providing contraceptive coverage. See 80 Fed. Reg.
41, 318; 41, 323-28 (July 14, 2015). But this effort appears
to have satisfied no one. Many organizations continued to
challenge the contraceptive-coverage mandate.
Notre
Dame's position in the earlier lawsuit was that filling
out the opt out form or otherwise notifying the government or
their insurance issuer of their religious objection violated
RFRA and the United States Constitution. [Am. Compl.
¶¶ 72, 75, 77, 85.] Notre Dame argued that the
accommodation made it a “conduit” for the
provision of contraceptive coverage, in violation of its
religious beliefs. See Univ. of Notre Dame v.
Burwell, 786 F.3d 606, 612 (7th Cir. 2015), vacated
on other grounds, 136 S.Ct. 2007 (2016). Eight of the
nine federal courts of appeals to consider legal challenges
to the accommodation, including the Seventh Circuit in
Burwell, rejected them.[3] [Am. Compl. ¶ 78.]
As
referenced above, the United States Supreme Court granted
certiorari in seven of these cases and ultimately vacated and
remanded them, instructing that the parties “should be
afforded an opportunity to arrive at an approach going
forward that accommodates [the entities'] religious
exercise while at the same time ensuring that women covered
by [the entities'] health plans receive full and equal
health coverage, including contraceptive coverage.”
Zubik v. Burwell, 136 S.Ct. 1557, 1560 (2016)
(internal quotation marks omitted). The Zubik Court
remanded the Notre Dame decision for further proceedings
while the parties tried to reach an accord. Univ. of
Notre Dame v. Burwell, 136 S.Ct. 2007 (2016). This was
the punt that I referred to earlier.
To put
it bluntly, the Supreme Court's attempt to nudge a
settlement has gone nowhere. Here's what happened
instead: First, the government issued a Request for
Information soliciting comments as to how it might alter the
regulations to implement the compromise contemplated by the
Supreme Court in Zubik. See 81 Fed. Reg.
47, 741-01 (July 22, 2016). After receiving 54, 000 comments,
the government announced in January 2017 that no
“feasible approach has been identified” and
reiterated that “the Departments continue to believe
that the existing accommodation regulations are consistent
with RFRA . . . .” [Am. Compl. ¶ 82; see
Dept. Of Labor, FAQs About Affordable Care Act Implementation
Part 36, 4 (Jan. 9. 2017).[4]] Meanwhile, on remand, the
various cases were held in abeyance while the parties tried
to negotiate resolutions. [Am. Compl. ¶83.]
The
tide in favor of the contraceptive mandate turned against it
in 2017. President Trump issued an Executive Order in May of
that year directing the Federal Defendants in this case to
issue the rules which are challenged here. [Am. Compl.
¶¶86-87; Exec. Order No. 13, 798, Promoting
Free Speech and Religious Liberty, 82 Fed. Reg. 21, 675
(May 4, 2017)]. The Federal Defendants complied and issued
two interim final rules (IFRs) which created exemptions from
the ACA contraceptive coverage requirement for entities
asserting religious and moral objections, and made the
accommodation process optional. 82 Fed. Reg. 47, 792-01, 47,
848 (Oct. 13, 2017). The first rule expanded the religious
exemption because the Federal Defendants “determined
that an expanded exemption, rather than the existing
accommodation [wa]s the most appropriate administrative
response to the religious objections raised by certain
entities and organizations.” Id. at 47, 799.
The second rule created a similar exemption for entities with
sincerely held moral objections issued “in part to
bring the [m]andate into conformity with Congress's long
history of providing or supporting conscience protections in
the regulation of sensitive health-care issues.”
Id. at 47, 844.
There
was no public notice or comment before the issuance of the
IFRs; comments were only solicited after the IFRs
went into effect. [Am. Comp. ¶¶ 88-89.] In December
2017, two federal courts issued nationwide preliminary
injunctions blocking the IFRs. Am. Compl. ¶¶ 92-95;
see Pennsylvania v. Trump, 281 F.Supp.3d 553, 576
(E. D. Pa. 2017); California v. Health & Human
Servs., 281 F.Supp.3d 806, 829 (N.D. Cal. 2017),
affirmed in part and vacated in part by California v.
Azar, 911 F.3d 558 (9th Cir. 2018) (affirming the
preliminary injunction, but finding it should only be issued
as to plaintiff states and not nationwide). These courts
found the plaintiffs would likely succeed on the merits of
the claims that the IFRs were substantively unlawful because
they were promulgated without statutory authority and
procedurally infirm for failing to follow the APA's
notice and comment procedures. The United States Court of
Appeals for the Ninth Circuit affirmed the ruling that the
states in the California case were likely to succeed on their
procedural APA claim. Azar, 911 F.3d at 575.
One
week after issuing the IFRs, on October 13, 2017, the Federal
Defendants executed a Settlement Agreement with Notre Dame
and more than 70 other entities to resolve pending challenges
to the ACA's contraceptive coverage requirement. [Am.
Compl. ¶¶ 106-07.] Depending on what side
you're on, the Settlement Agreement was either a
monumental victory for the religious employers or a total
capitulation by the Government. Specifically, the Agreement
exempts Notre Dame, along with its “subsidiaries,
affiliates, and successors; and related entities that offer
coverage through the [signatories'] health plan[s]”
from the contraceptive coverage requirement and “any
materially similar regulation or agency policy.” [Am.
Compl. ¶¶ 107-08; Settlement Agreement, DE 1-1, at
5, 13.] In other words, the Settlement Agreement inoculates
Notre Dame in perpetuity from any future regulation
that might mandate the provision of contraception to its
students or employees. Under the terms of the Settlement
Agreement, “[n]o person may receive [contraceptive
coverage] as an automatic consequence of enrollment in any
health plan sponsored by Plaintiffs.” [Am. Compl.
¶ 109; Settlement Agreement at 6, ¶ 2(e).] And for
good measure, the Government tossed in $3 million for legal
fees to boot. [Settlement Agreement at 8, ¶ 7.]
Despite
the two preliminary injunctions prohibiting the IFRs, the
Final Rules were promulgated on November 15, 2018, with an
effective date of January 14, 2019. [Am. Compl. ¶ 97.]
The religious exemption allows all nongovernmental entities,
including for-profit businesses, nonprofits, and
universities, to declare themselves exempt from the ACA's
contraceptive coverage requirement based on religious
beliefs. [Am. Compl. ¶ 100; 83 Fed. Reg. 57, 536 (Nov.
15, 2018).] The moral exemption allows all nongovernmental
entities except publicly traded corporations to exempt
themselves from the law based on “moral
convictions.” 83 Fed. Reg. 57, 592 (Nov. 15. 2018).
Those entities refusing to provide contraceptive coverage do
not need to explain their decision, and “do not need to
file notices or certifications of their exemption, and [the
Rules] do not impose any new notice requirements on them . .
. .” Id. at 57, 558, 57, 614.
In
January 2019, just before the Final Rules were supposed to
take effect, federal district courts in California and
Pennsylvania preliminarily enjoined them. The Eastern
District of Pennsylvania preliminarily enjoined the Final
Rules nationwide, finding the Final Rules both substantively
and procedurally unlawful. Pennsylvania v. Trump,
351 F.Supp.3d 791 (E.D. Pa. 2019). The Third Circuit recently
affirmed this decision. Pennsylvania v. President United
States, 930 F.3d 543 (3d Cir. 2019), petition for
cert. filed Oct. 7, 2019. The Northern District of
California also preliminarily enjoined the Final Rules for
substantive illegality in 13 states and the District of
Columbia. California v. Health & Human Servs.,
351 F.Supp.3d 1267 (N.D. Cal. 2019). The Ninth Circuit
followed suit and affirmed this decision too. California
v. U.S. Dep't of Health & Human Servs., 941 F.3d
410 (9th Cir. 2019).
All of
which brings us to the present dispute. Notre Dame sponsors
health insurance plans for students, faculty and staff (and
their dependents). [Am. Compl. ¶ 19.] After the
Settlement Agreement, Notre Dame amended its health plans to
terminate coverage for certain FDA-approved contraceptives
which it views as abortifacients or sterilization, and to
impose cost-sharing (including co-payments and deductibles),
for other types of contraceptives (like birth control pills).
[Id. ¶¶ 128-49.] The members of Irish 4
Reproductive Health and the individual plaintiffs in this
case are women of child-bearing age who are enrolled in
health plans sponsored by Notre Dame. [Id.
¶¶ 14-17.] They have been denied coverage for some
contraceptives, and must engage in cost-sharing for others.
[Id. ¶¶ 13-17.]
Plaintiffs
filed suit in this case on June 26, 2018. [DE 1.] They filed
an amended complaint on December 5, 2018, to reflect they are
now challenging the Final Rules (instead of the interim
rules). [DE 43.] The amended complaint states the following
claims: (1) the Settlement Agreement violates the APA; (2)
the Settlement Agreement is void under federal common law
because it is illegal under the Zubik remand order,
the ACA, and the Constitution; (3) the Final Rules
procedurally violate the APA because the IFRs were issued
without pre-promulgation notice-and-comment; (4) the Final
Rules substantively violate the APA because they contradict
the Constitution and the ACA; (5) the Settlement Agreement
and the Final Rules violate the Establishment Clause; (6) the
Settlement Agreement and the Final Rules violate the Due
Process Clause by depriving Plaintiffs of a fundamental right
(access to contraceptives); and (7) the Settlement Agreement
and Final Rules violate the Equal Protection Clause because,
inter alia, they “target women for adverse
treatment.” [Am. Compl. ¶¶ 165-232.]
Both
the Federal Defendants and Notre Dame seek dismissal of the
amended complaint [DE 58 and 59]. At the request of the
Plaintiffs, I held a hearing in this matter and heard oral
argument from all parties.
Discussion
In the
midst of this extended litigation with complicated issues, it
is important to keep in mind the procedural posture of the
present motions. This case is before me on two motions to
dismiss the amended complaint. The Federal Defendants have
moved to dismiss all the claims in the amended complaint
under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6).
Notre Dame has moved to dismiss all the claims in the amended
complaint under Rule 12(b)(6).
In
order to survive a motion to dismiss under Rule 12(b)(6) for
failure to state a claim upon which relief can be granted,
“a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (internal quotation marks and citation
omitted); accord Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007). While I must accept all factual
allegations as true and draw all reasonable inferences in the
complainant's favor, I don't need to accept
threadbare legal conclusions supported by purely conclusory
statements. See Iqbal, 556 U.S. at 678. Plaintiffs
must allege “more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555. Making
the plausibility determination is “a context-specific
task that requires the reviewing court to draw on its
judicial experience and common sense.” Iqbal,
556 U.S. at 679.
When
evaluating a facial challenge to subject matter jurisdiction
under Rule 12(b)(1), I must use the same
“plausibility” standard; therefore, I must accept
alleged factual matters as true and draw all reasonable
inferences in favor of Plaintiffs. Silha v. ACT,
Inc., 807 F.3d 169, 174 (7th Cir. 2015). Plaintiffs bear
the burden of establishing the jurisdictional requirements.
Ctr. For Dermatology and Skin Cancer, Ltd. v.
Burwell, 770 F.3d 586, 588-89 (7th Cir. 2014).
“Subject-matter jurisdiction is the first question in
every case, and if the court concludes that it lacks
jurisdiction it must proceed no further.” Illinois
v. Chicago, 137 F.3d 474, 478 (7th Cir. 1998).
Therefore, I'll start with the Federal Defendants'
arguments under Rule 12(b)(1) first.
I.
Federal Defendants' 12(b)(1) Arguments
In
claiming that this Court lacks jurisdiction over
Plaintiffs' claims, the Federal Defendants initially make
two arguments that can be disposed of quickly. First, they
contend the APA only permits judicial review of final agency
actions “for which there is no other adequate remedy in
a court, ” 5 U.S.C. § 704, and second, they argue
Plaintiffs have alternative remedies. The Federal Defendants
then set forth a much closer issue relating to the Settlement
Agreement. They claim that the decision to refrain from
enforcement is a decision that is committed to agency
discretion as a matter of law, and beyond the scope of
judicial review. And so, when the Federal Defendants decided
to settle the protracted litigation with Notre Dame, that was
an enforcement decision beyond judicial review. Finally, they
argue Plaintiffs don't have standing to challenge the
Final Rules. As detailed below, none of these jurisdictional
attacks have merit.
A.
The Availability of Alternative Remedies
The APA
only permits a plaintiff to obtain judicial review of a
“final agency action for which there is no other
adequate remedy in a court.” 5 U.S.C. § 704;
U.S. Army Corps of Eng'rs v. Hawkes Co., 136
S.Ct. 1807, 1815 (2016); Brem-Air Disposal v. Cohen,
156 F.3d 1002, 1004 (9th Cir. 1998) (holding a court lacks
jurisdiction over an APA claim where Congress has provided an
adequate alternative remedy under another statute). The
Federal Defendants essentially argue that because Count I
states a claim for violation of the Settlement Agreement
under the APA, and Count II states a cause of action that the
Settlement Agreement is void for illegality, Plaintiffs are
already pursuing alternative remedies because
“[i]f Plaintiffs were to prevail on any of the[]
non-APA challenges to the Settlement Agreement and it were
voided, then the Settlement Agreement could not cause
Plaintiffs to lose meaningful access to contraceptive
services.” [DE 58-1 at 28.][5]
In
other words, the Federal Defendants think the non-APA
challenges to the settlement can and should stand alone. But
it isn't quite so binary. Plaintiffs' claims
challenging the Settlement Agreement are intertwined - they
are claiming both that the Settlement Agreement
violates the APA and is an illegal contract under
Zubik, the Women's Health Amendment, and the
Constitution. The Federal Defendants' argument seems to
be that because the Plaintiffs might prevail on
their non-APA challenges, they are prevented from pursuing
their APA challenge simultaneously. In other words, under the
Federal Defendants' conception of the statute, the
Plaintiffs have to fully litigate, through appeal, the
non-APA challenge to the Settlement Agreement, and then if
they lose, come back and assert their APA claims. This seems
like a hopelessly inefficient way to conduct litigation - one
claim at a time. At this point, who's to say whether the
Plaintiffs have “an adequate remedy in court” as
that phrase is used in the APA. It is way too early to know
that; their non-APA challenges to the Settlement Agreement
might be complete duds. And because Plaintiffs are allowed to
plead in the alternative, see Fed. R. Civ. P.
8(d)(2), it is senseless to require litigation to proceed
ad seriatim as the Federal Defendants propose. While
it is true that “courts routinely dismiss alternatively
pled APA claims upon finding that another statute offers an
adequate alternative remedy, ” here, the Federal
Defendants have not pointed to another such statute. R.J.
Reynolds Tobacco Co. v. United States Dep't of
Agriculture, 130 F.Supp.3d 356, 379 (D.D.C. 2015). In
fact, their argument that Plaintiffs have another
“adequate remedy” in this situation is
unsupported by any case law whatsoever, and can better be
considered at the summary judgment stage of litigation, when
all parties and the Court have a better sense of the
challenges and remedies. For now, both claims will go
forward.
The
Federal Defendants also argue that Plaintiffs Natasha
Reifenberg, Jane Doe 2, and Jane Doe 3 (all who are enrolled
as dependents in Notre Dame's faculty and staff health
plan), have an additional adequate alternative remedy under
ERISA. [DE 58-1 at 28-29.] This is totally beside the point.
Even though in theory these plaintiffs could bring a civil
action under ERISA to enjoin an act or practice that they
believe violates a term of the ACA or a provision of ERISA,
the Settlement Agreement (which effectively immunizes Notre
Dame from coverage), would stand in the way of any other
mechanism to address the injury at issue in this case.
B.
Whether The Decision to Settle Litigation is Committed to
Agency Discretion and Not Reviewable By This
Court
The
much meatier jurisdictional issue is whether the decision to
settle litigation is subject to judicial review. The Federal
Defendants argue Plaintiffs' APA challenges to the
Settlement Agreement should be dismissed for lack of
jurisdiction because the deal is an exercise of enforcement
discretion that is “committed to agency discretion by
law, ” 5 U.S.C. § 701(a)(2), and therefore beyond
the scope of APA review. [DE 58-1 at 29.] Notre Dame makes a
similar assertion that the Settlement Agreement is not
judicially reviewable, although Notre Dame does this under
the guise of its 12(b)(6) motion. [DE 59-1 at 16-19.] From a
procedural point of view, Notre Dame has correctly advanced
this issue, as the Seventh Circuit has agreed “that
this issue is not termed properly one of jurisdiction: This
is not a question of whether this court has the authority to
review, but rather whether the lack of any judicially
manageable standard makes any review within our power, as a
practical matter, impossible.” Vahora v.
Holder, 626 F.3d 907, 917 (7th Cir. 2010) (internal
quotation marks and quotation omitted). Regardless of how the
different defendants have procedurally postured their
arguments, they will both be addressed together in this
section.
Defendants
say this matter is governed by Heckler v. Chaney,
470 U.S. 821 (1985). In that case, inmates sentenced to death
challenged a decision by the Food and Drug Administration not
to enforce a statute it administered in the context of lethal
injections. The Court held that section 701(a)(2) of the APA
prevented review because there was “no meaningful
standard against which to judge the agency's exercise of
discretion.” Id. at 830; see also
Vahora, 626 F.3d at 917 (commenting on
Heckler). The Seventh Circuit has noted that a
“classic example of such a[] [non reviewable] action is
an agency's decision not to prosecute.” Home
Builders Ass'n of Greater Chi. v. U.S. Army Corps of
Eng'rs, 335 F.3d 607, 615 (7th Cir. 2003).
However,
Heckler itself gives indications that its ruling
should not dictate what happens in a case like this.
Heckler explained that “Congress did not set
agencies free to disregard legislative direction in the
statutory scheme that the agency administers, ” and
that it was not addressing reviewability of an agency
decision to “consciously and expressly adopt [] a
general policy that is so extreme as to amount to an
abdication of its statutory responsibilities.”
Heckler, 470 U.S. at 833 n.4 (internal ...