“Ensuring” Is Not “Compelling”: Second Circuit Clarifies Standing and APA §706(1) Constraints under the No Surprises Act
Commentary on Neurological Surgery Practice of Long Island, PLLC v. U.S. Dep’t of Health & Human Services, 24-1884 (2d Cir. July 22, 2025)

1  Introduction

Neurological Surgery Practice of Long Island, PLLC (“NSLI”) is an out-of-network provider that relies heavily on the federal Independent Dispute Resolution (“IDR”) process created by the No Surprises Act to obtain payment from health plans. After encountering chronic delays, the practice sued the Departments of Health & Human Services, Labor, and Treasury (“the Departments”), claiming that: (i) IDR operations were unlawfully paused; (ii) agencies failed to enforce statutory deadlines on plans and arbitrators; (iii) agencies failed to certify a “sufficient number” of IDR entities; and (iv) agencies withdrew—but did not replace—guidance on New York’s surprise-billing law. The district court dismissed; the Second Circuit has now affirmed, spelling out important limits on Article III standing, mootness doctrine, and the kind of relief that can be compelled under the Administrative Procedure Act (“APA”) §706(1).

2  Summary of the Judgment

• Mootness: NSLI’s challenge to the two-month pause of the IDR portal became moot once the portal reopened; voluntary-cessation doctrine did not apply because recurrence was merely speculative.
• Lack of Standing: NSLI’s injury (delayed payment) was attributable to health plans and arbitrators, not to the Departments. Therefore, NSLI lacked standing to compel agency enforcement of statutory deadlines.
• APA §706(1) Claim Rejected: The Court held that the statutory duty to “ensure that a sufficient number of IDR entities are certified” is too open-ended to qualify as the “discrete agency action” required for mandamus-type relief under Norton v. SUWA.
• Guidance Withdrawal: Agencies had no discrete statutory duty to issue replacement guidance on New York’s law; the claim therefore failed to state a cause of action.
• All district-court rulings were affirmed.

3  Analysis

3.1 Precedents Cited

1. Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (2004)
   Established that §706(1) permits courts to compel only ministerial, non-discretionary, discrete actions that an agency is legally required to take. The panel uses this as the analytic fulcrum for rejecting NSLI’s certification claim.
2. Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)
   Reaffirmed the three elements of Article III standing—injury in fact, traceability, redressability—and highlighted that when injuries stem from regulation (or non-regulation) of third parties, the causation/redressability prongs are “substantially more difficult.” The Court found the traceability chain here “too speculative.”
3. Heckler v. Chaney, 470 U.S. 821 (1985)
   Recognized broad non-reviewability of agency non-enforcement decisions. Although not the basis of dismissal, the opinion notes that any APA challenge to agencies’ refusal to police plan deadlines would be barred by Chaney.
4. FDA v. Alliance for Hippocratic Medicine, 602 U.S. 367 (2024)
   Latest Supreme Court articulation on speculative causation; cited to underscore that intervening actions of independent actors break the standing chain.
5. Voluntary-cessation and mootness cases (City News & Novelty, Mhany Management, Lillbask) to support the determination that a future portal pause was remote.

3.2 Legal Reasoning

a) Mootness. Because the only relief sought for the “pause” claim was immediate resumption, reopening the portal rendered that relief impossible to grant. Under voluntary-cessation principles, the government bore the burden to show non-recurrence; the panel accepted the district court’s conclusion that another system-wide pause is speculative, not reasonably expected.

b) Standing. Though NSLI showed economic injury, the Court framed the critical question as: Who actually caused the injury? The complaint conceded it was the health plans’ strategic underpayment and the IDR entities’ backlog. Agencies’ alleged failure to police those actors was an attenuated link, insufficient under Lujan. Redressability likewise failed: even were agencies to crack down, nothing in the record indicated plans/arbitrators could or would meet the statutory deadlines, especially given the undersupply of arbitrators.

c) APA §706(1). The panel parsed 42 U.S.C. §300gg-111(c)(4)(E): Congress required the Departments to “establish a process” that “shall ensure” sufficient certification. The process exists; Congress did not list any specific follow-on duties (e.g., certify X arbitrators, maintain a ratio, audit wait times). Therefore, the alleged wrong is a broad programmatic attack barred by Norton. Courts cannot direct “how” agencies must achieve sufficiency; they may only order that the initial duty (establishing a process) be performed—already accomplished.

d) Guidance Claim. No statute compels agencies to issue, maintain, or update sub-regulatory guidance. Absent a discrete duty, §706(1) relief is unavailable; additionally, general policy statements are exempt from notice-and-comment requirements. The withdrawal of guidance therefore does not create an actionable vacuum.

3.3 Impact of the Decision

• Narrow scope of APA “failure-to-act” suits: Providers and stakeholders hoping to use §706(1) to force agencies to speed up IDR processing must identify a specific, text-anchored command—“issue final rule by date certain,” “publish a quarterly report,” etc. Open-ended verbs like “ensure” or “promote” will not qualify.
• Standing roadblocks for third-party harms: Where private actors (insurers, arbitrators) create the bottleneck, plaintiffs must either sue those actors directly or establish a non-speculative theory that agency enforcement action would predictably change third-party behavior.
• Mootness precedent for temporary program suspensions: If agencies pause statutory programs in response to litigation (as happened after the Texas Medical Association decisions), future challenges risk dismissal once operations resume, unless plaintiffs can plead a concrete likelihood of recurrence.
• Practical consequences for No Surprises Act stakeholders:
  • Providers cannot rely on federal courts to micromanage the IDR backlog; pressure may shift toward legislative amendments or agency rulemaking petitions.
  • Agencies retain broad discretion to triage resources, certify arbitrators, and decide when to enforce plan compliance.
• Litigation strategy: Counsel must craft suits around time-bound, specific statutory commands, and, when challenging non-enforcement, must confront the dual obstacles of Chaney reviewability and Lujan traceability.

4  Complex Concepts Simplified

Independent Dispute Resolution (IDR)

A baseball-style arbitration under the No Surprises Act where provider and plan each submit a payment offer; a certified private arbitrator picks one.

APA §706(1)

Provision allowing courts to order an agency to act—but only when Congress has imposed a specific, non-discretionary duty that the agency has unlawfully withheld or unreasonably delayed.

Discrete Agency Action

An identifiable, bounded step (e.g., publish a report, decide a petition) as opposed to an amorphous program goal (e.g., “ensure fairness”).

Standing—Traceability & Redressability

Even with an actual injury, a plaintiff must show the defendant likely caused it and that a court order would likely fix it. Chains involving independent third parties make this showing harder.

Mootness & Voluntary Cessation

When challenged conduct stops, the case can become moot unless it is reasonably likely to recur. Defendant must show permanence of cessation.

5  Conclusion

The Second Circuit’s decision charts clear doctrinal boundaries for litigants navigating the intersection of the No Surprises Act and administrative-law remedies:

• Claims aimed at broad systemic delays will not survive unless anchored to a specific statutory command.
• Standing cannot be constructed on speculation that stricter agency enforcement would change third-party behavior.
• Temporary agency pauses may ripen into live controversies only if plaintiffs plausibly allege an imminent risk of repetition.

Ultimately, Neurological Surgery v. HHS teaches that while the judiciary can compel agencies to act, it cannot compel them to solve every operational problem—especially when Congress has delegated broad discretion. Providers frustrated with IDR backlogs may now need to redirect advocacy toward rulemaking petitions, congressional engagement, or direct contractual actions against plans, rather than expecting APA litigation to furnish a systemic fix.