Vol. 24 Annals of Health Law 385
a non-profit entity, HHS decided that the agency “will carry out all Exchange functions.” 354
Therefore, the FFMs are plainly not state actors and cannot be the subject
of litigation through either traditional pathway for Medicaid litigation. 355
Instead, lawsuits challenging the actions of the FFM will likely be brought
under the APA. 356 However, the APA is not especially receptive to structural reform litigation. 357 First, courts are not amenable to reviewing agency
inaction. 358 When requesting judicial review of agency inaction, the action
requested by the plaintiff must be discrete and mandatory. 359 For an action
to be “mandatory,” a law (either statute or regulation) must require the
agency take the requested action. 360 For example, the Supreme Court explained that “when an agency is compelled by law to act within a certain
time period, but the manner of its action is left to the agency’s discretion, a
court can compel the agency to act, but has no power to specify what the
action must be.” 361 The advantage of APA suits is that regulations may be
enforceable against the FFMs, unlike the state-based Marketplaces. The
disadvantage is that the “discrete” requirement “precludes . . . broad programmatic attack.” 362 Individuals may be able to challenge individual instances of agency inaction, such as the FFM’s failure to deliver a decision
on tax credit eligibility, where regulations establish clear procedural re-
354. CTR. FORCONSUMERINFO.&OVERSIGHT,CTRS. FORMEDICARE&MEDICAID
SERVS. GENERAL GUIDANCE ON FEDERALLY-FACILITATED EXCHANGES 4 (May 16, 2012),
available at http://www.cms.gov/CCIIO/Resources/Fact-Sheets-and-FAQs/Downloads/ffe-
355. McCloskey v. Mueller, 446 F.3d 262, 271 (1st Cir. 2006) (“[ A] section 1983 claim
ordinarily will not lie against a federal actor.”); See, e.g., D. C. v. Carter, 409 U.S. 418, 424-
25 (1973) (“[ A]ctions of the Federal Government and its officers are at least facially exempt
from [§ 1983’s] proscriptions.”).
356. 5 U.S. C. A. 501 et seq. Although there was some history of structural reform litigation against federal agencies in the early 1970s, these cases appear to be based on either implied causes of action from the constitution or a federal common law cause of action. See
Adams v. Richardson, 480 F.2d 1159, 1161–62 ( D. C. Cir. 1973). Today, these cases would
likely proceed under the APA’s presumption of reviewability of agency inaction. See Salvador v. Bennett, 800 F.2d 97, 99 (7th Cir. 1986) (characterizing Adams v. Richardson as an
exception to the principle of un-reviewability of agency inaction). Other litigation against
federal agencies has relied on more specific causes of action. For example, in Cobell v. Norton, 240 F.3d 1081, 1086 ( D. C. Cir. 2001), the plaintiffs relied on a violation of their fiduciary duty, which is specific to the Department of the Interior’s role in managing trusts, not a
trans-substantive cause of action.
357. See e.g., Salvador v. Bennett, 800 F.2d 97, 99 (7th Cir. 1986) (explaining the general the principle of un-reviewability of agency inaction).
358. See, e.g., Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 64-65 (2004).
359. See id. at 61.
360. Id. at 65.
361. Id. at 64.