Neurological Surgery v. Dep’t of Health & Human Servs.

24-1884
Neurological Surgery v. Dep’t of Health & Human Servs.
In the
United States Court of Appeals
For the Second Circuit
August Term, 2024
No. 24-1884
NEUROLOGICAL S URGERY PRACTICE OF LONG ISLAND, PLLC,
Plaintiff-Appellant,
v.
UNITED S TATES D EPARTMENT OF H EALTH AND H UMAN S ERVICES ,
U NITED S TATES D EPARTMENT OF THE TREASURY , U NITED S TATES
D EPARTMENT OF L ABOR , R OBERT F. K ENNEDY , JR ., in his official
capacity as Secretary, United States Department of Health and
Human Services, S COTT B ESSENT, in his official capacity as Secretary,
United States Department of the Treasury, L ORI C HAVEZ -DE R EMER ,
in her official capacity as Secretary, United States Department of
Labor,
Defendants-Appellees.*
On Appeal from a Judgment of the United States District Court for
the Eastern District of New York.
A RGUED: MAY 15, 2025
* The Clerk of Court is directed to amend the official caption to conform
with the above.

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D ECIDED: JULY 22, 2025
Before: CALABRESI, B IANCO and NARDINI, Circuit Judges.
Plaintiff-Appellant Neurological Surgery Practice of Long
Island, PLLC (“Neurological Surgery”) is a healthcare provider that
provides out-of-network medical services that are governed by the
No Surprises Act. The Act mandates that out-of-network healthcare
providers, like Neurological Surgery, may not bill patients for certain
items or services directly and must instead seek compensation from
the patient’s healthcare plan. If a provider and a healthcare plan
cannot agree on an appropriate compensation amount, the Act
provides for an independent dispute resolution (“IDR”) process in
which a certified private arbitrator selects between compensation
proposals submitted by the parties. Defendants-Appellees—the
United States Department of Health and Human Services,
Department of the Treasury, Department of Labor, and the Secretaries
of those agencies (collectively, the “Departments”)—are charged with
implementing and administering the Act.
Neurological Surgery alleges that since the Act was
implemented, a backlog of disputes awaiting resolution has
accumulated and that it has consequently suffered substantial harm
in the form of unpaid or delayed reimbursement from healthcare
plans. It alleges that these delays are the result of the Departments’
failure to lawfully implement the Act, in violation of the
Administrative Procedure Act (“APA”), 5 U.S.C. § 706, and Due
Process Clause of the Fifth Amendment. The United States District
Court for the Eastern District of New York (Brian M. Cogan, District
Judge) dismissed Neurological Surgery’s claims. Neurological
Surgery now appeals and asks us to vacate the district court’s
judgment, disputing its conclusions that: (i) Neurological Surgery’s

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claims have been rendered moot by the reopening of the portal used
by providers to initiate IDR proceedings; (ii) Neurological Surgery
lacks standing to compel the Departments to enforce the Act’s
deadlines for reimbursement on third parties; (iii) Neurological
Surgery’s claim that the Departments have failed to certify a sufficient
number of arbitrators is foreclosed by the APA because the Act does
not identify a discrete action that the Departments must take to
comply with that mandate; and (iv) Neurological Surgery’s claim that
the Departments have failed to provide guidance on New York’s
surprise billing law is also foreclosed by the APA for the same
reasons.
We substantially agree with the district court’s conclusions.
We therefore AFFIRM the judgment of the district court.
R OY W. B REITENBACH , Harris Beach PLLC,
Uniondale, NY, for Plaintiff-Appellant.
K EVIN B. SOTER (Brett A. Shumate, Acting
Assistant Attorney General, Joshua M.
Salzman, Sarah Clark Griffin, on the brief),
Appellate Staff, Civil Division, U.S.
Department of Justice, Washington, DC, for
Defendants-Appellees.
WILLIAM J. NARDINI, Circuit Judge:
Plaintiff-Appellant Neurological Surgery Practice of Long
Island, PLLC (“Neurological Surgery”) is a healthcare provider that
provides out-of-network medical services that are governed by the
No Surprises Act. See Pub. L. No. 116-260, div. BB, tit. I, 134 Stat. 1182,

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2758–890 (2020), codified at 42 U.S.C. § 300gg-111 et seq. The Act
mandates that out-of-network healthcare providers, like Neurological
Surgery, may not bill patients for certain items or services directly and
must instead seek compensation from the patient’s healthcare plan.
If a provider and a healthcare plan cannot agree on an appropriate
compensation amount, the Act provides for an independent dispute
resolution (“IDR”) process in which a certified private arbitrator
selects between compensation proposals submitted by the parties.
Defendants-Appellees—the United States Department of Health and
Human Services, Department of the Treasury, Department of Labor,
and the Secretaries of those agencies (collectively, the
“Departments”)—are charged with implementing and administering
the Act.
Neurological Surgery alleges that since the Act was
implemented, a backlog of disputes awaiting resolution has
accumulated and that it has consequently suffered substantial harm
in the form of unpaid or delayed reimbursement from healthcare
plans. It alleges that these delays are the result of the Departments’
failure to lawfully implement the Act, in violation of the
Administrative Procedure Act (“APA”), 5 U.S.C. § 706, and the Due
Process Clause of the Fifth Amendment. The United States District
Court for the Eastern District of New York (Brian M. Cogan, District
Judge) dismissed Neurological Surgery’s claims. Neurological
Surgery now appeals and asks us to vacate the district court’s
judgment, disputing its conclusions that: (i) Neurological Surgery’s
claims have been rendered moot by the reopening of the portal used

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by providers to initiate IDR proceedings; (ii) Neurological Surgery
lacks standing to compel the Departments to enforce the Act’s
deadlines for different stages of the IDR process on third parties;
(iii) Neurological Surgery’s claim that the Departments have failed to
certify a sufficient number of arbitrators is foreclosed by the APA
because the Act does not identify a discrete action that the
Departments must take to comply with that mandate; and
(iv) Neurological Surgery’s claim that the Departments have failed to
provide guidance on New York’s surprise billing law is also
foreclosed by the APA for the same reasons.
We substantially agree with the district court’s conclusions.
First, we conclude that although one of Neurological Surgery’s claims
challenging the closure of the portal is moot, we disagree with the
district court that the reopening of the portal mooted Neurological
Surgery’s remaining claims. Second, we hold that Neurological
Surgery lacks standing to compel the Departments to enforce the
Act’s deadlines for reimbursement on third parties, namely
healthcare plans and arbitrators. We read Neurological Surgery’s
complaint to suggest its injury has been caused by the actions of
healthcare plans and arbitrators, not the Departments; it has therefore
failed to establish standing to compel the Departments to take action.
Next, we agree with the district court that Neurological Surgery’s
challenge to the Department’s failure to certify a sufficient number of
arbitrators is foreclosed by the APA, because the No Surprises Act
does not prescribe discrete actions that the Departments must take in
achieving that goal. And finally, we hold Neurological Surgery’s

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challenge to the Departments’ failure to issue guidance on New
York’s surprise billing law fails to state a claim under the APA,
because it fails to allege that doing so is a discrete agency action that
the Departments are required to take.
We therefore AFFIRM the judgment of the district court.
I. Statutory Background
On December 27, 2020, Congress passed the No Surprises Act
to address the issue of patients facing unexpected—and often
exceedingly large—medical bills after they received treatment from
out-of-network providers. The Act “prohibits out-of-network health
care providers from billing healthcare plan members directly for
certain items or services.” Neurological Surgery Prac. of Long Island,
PLLC v. United States Dep’t of Health & Hum. Servs., 682 F. Supp. 3d
249, 255 (E.D.N.Y. 2023) (outlining the statutory framework of the
Act). “A provider must instead seek compensation from the patient’s
healthcare plan.” Id. “[U]pon receiving a request for payment from
a provider, the patient’s health care plan determines whether and in
what amount it will pay for the services.” Id. If the provider and
healthcare plan cannot agree on a reimbursement amount, the Act
provides for an IDR process in which a private third-party arbitrator
(“IDR entity”) selects between amounts submitted by the parties. Id.
The Act sets deadlines for various steps in the process. “A
health care plan’s initial payment decision must be made within 30
calendar days after the out-of-network provider transmits its bill to
the health plan.” Id. (citing 42 U.S.C. § 300gg-111(a)(1)(C)(iv)(I)). “If

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there is a dispute between the healthcare plan and the provider
regarding the proper compensation amount, there is a 30-day open
negotiation period.” Id. (citing 42 U.S.C. § 300gg-111(c)(1)(A)). If
negotiations are unsuccessful, a party wishing to bring an IDR
proceeding must do so within 4 days. 42 U.S.C. § 300gg-111(c)(1)(B).
The parties must submit their compensation proposals within 10 days
of selecting an IDR entity, and the IDR entity must then render a
decision choosing one of the proposals within 30 days. Id.
§ 300gg-111(c)(5)(A) and (B). That decision is binding on the parties
“in the absence of a fraudulent claim or evidence of misrepresentation
of facts presented” and is subject to limited judicial review under the
Federal Arbitration Act. Id. § 300gg-111(c)(5)(E). “A health care plan
must pay any additional compensation ordered by the [IDR entity] to
the provider within 30 days of the decision.” Neurological Surgery,
682 F. Supp. 3d at 255 (citing 42 U.S.C. § 300gg-111(c)(6)).
The Act delegates to the Departments the task of devising the
implementing regulations needed to make the program work. The
Act directs the Departments to “establish by regulation one
independent dispute resolution process . . . under which . . . a certified
IDR entity . . . determines . . . the amount of payment” for services the
Act covers. 42 U.S.C. § 300gg-111(c)(2)(A). Importantly, the Act also
charges the Departments with the responsibility to “establish a
process to certify (including to recertify) [IDR] entities.” Id.
§ 300gg-111(c)(4)(A). The “process shall ensure that an entity so
certified” meets various statutory requirements as to its expertise,
staffing, and fiscal integrity, among other criteria. Id.; see id.

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§ 300gg-111(c)(4)(A) (stating that IDR entities must, inter alia, have
“sufficient medical, legal, and other expertise and sufficient staffing”;
“meet[] appropriate indicators of fiscal integrity”; and “maintain[] the
confidentiality . . . of individually identifiable health information”).
In addition, the Act mandates that “[t]he process . . . shall ensure that
a sufficient number of entities are certified . . . to ensure the timely
and efficient provision of [payment] determinations.” Id.
§ 300gg-111(c)(4)(E).
Before the enactment of the No Suprises Act, many states had
passed their own laws to address the issue of so-called “surprise”
medical billing. The Act defers to those pre-existing state programs
and states that the federal IDR process created by the Act is not
available when a “specified State law” provides a method to
determine the total compensation amount payable under a healthcare
plan. Id. § 300gg-111(a)(3)(H)–(I). As relevant here, New York has a
surprise billing law (the “New York Surprise Bill Law”) with an IDR
process that predates the Act. See N.Y. Fin. Serv. Law §§ 601–608.
II. Factual Background
Neurological Surgery is a private neurosurgery practice in New
York that regularly provides out-of-network medical services to
members of major healthcare plans. Since January 2022, when the No
Surprise Act went into effect, Neurological Surgery’s provision of
these services has been governed by the Act.
Neurological Surgery alleges that since the Act has been
implemented, a backlog of disputes awaiting resolution has

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accumulated. For example, as of March 15, 2023, Neurological
Surgery submitted 1,050 claims to IDR but only 204 have been
decided. It maintains that these delays are the result of the
Departments’ failure to implement the Act, and that it has
consequently suffered substantial harm in the form of unpaid or
delayed reimbursement from healthcare plans. Specifically,
Neurological Surgery contends that the Departments have failed to
certify a sufficient number of IDR entities and compel healthcare
plans and IDR entities to follow the deadlines set by the Act, resulting
in long delays of the IDR process. Neurological Surgery asserts that
the lack of timely reimbursement has placed it “in danger of financial
collapse.” Appellant Br. at 11. After Neurological Surgery filed the
initial complaint in this case, the IDR process was paused for
approximately two months in the early fall of 2023. The Departments
had paused the IDR portal to implement changes to their procedures
necessary to comply with a Texas district court’s order, which
“vacated portions of the regulations governing the IDR process,
including the regulations setting forth the methodology for
calculating qualifying payment amounts (one of the factors an IDR
entity must consider in rendering a payment determination).”
Appellee Br. at 10–11; see Texas Med. Ass’n v. HHS, No. 6:22-CV-450
(JDK), 2023 WL 5489028 (E.D. Tex. Aug. 24, 2023), aff’d in part, rev’d in
part, 120 F.4th 494 (5th Cir. 2024), reh'g en banc granted, opinion vacated,
138 F.4th 961 (5th Cir. 2025); Texas Med Ass’n v. HHS, No. 6:23-CV-59
(JDK), 2023 WL 4977746 (E.D. Tex. Aug. 3, 2023). The Departments
reopened the IDR portal in phases, and operations fully resumed by
December 2023.

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III. District Court Proceedings
In April 2023, Neurological Surgery filed suit against the
Departments and high-level officials of those agencies alleging that
their failure to lawfully implement the No Suprises Act violated the
APA and the Due Process Clause of the Fifth Amendment.2 Among
other things, Neurological Surgery sought to compel the Departments
to enforce the statutory deadlines set forth by the Act on healthcare
plans and IDR entities. The Departments moved to dismiss, and the
district court granted their motion in July 2023. See Neurological
Surgery Prac. of Long Island, PLLC v. Dep't of Health & Hum. Servs.,
682 F. Supp. 3d 249 (E.D.N.Y. 2023). The district court held that
Neurological Surgery lacked standing to compel the Departments to
enforce provisions of the Act against third parties, and that
Neurological Surgery failed to show that its injuries were fairly
traceable to the Departments’ alleged actions or inactions. Id. at 258.
Following its dismissal order, the district court allowed
Neurological Surgery to amend its complaint. Id. at 264.
Neurological Surgery did so and filed an amended complaint later
that month alleging three claims. The first and second claims,
brought pursuant to the APA and the All Writs Act, 28 U.S.C. § 1651,
asserted that the Departments (i) had failed to “ensure that a sufficient
number of [IDR] entities [were] certified . . . to ensure the timely and
efficient provision of [IDR] determinations”; and (ii) had issued
erroneous guidance about the scope of New York’s surprise billing
2 Neurological Surgery’s initial complaint also alleged a violation of the
Takings Clause of the Fifth Amendment, but it has since dropped that claim.

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law. App’x at 234–37. The third claim asserted that the Departments
had also violated the Due Process Clause by doing so, and by failing
to compel healthcare plans and IDR entities to comply with the
deadlines set by the Act. Neurological Surgery sought declaratory
relief, as well as an injunction and a writ of mandamus directing the
Departments to: (i) take all steps necessary to obey the Act’s mandate
that the Departments shall ensure that a sufficient number of IDR
entities are certified; (ii) withdraw the Departments’ purportedly
erroneous guidance about New York’s surprise billing law and issue
a correction; and (iii) compel healthcare plans to make timely
payments under the Act, including by adopting procedures to
monitor the plans’ compliance with statutory deadlines, and compel
the IDR entities to follow the deadlines for the payment
determinations.
The Departments renewed their motion to dismiss
Neurological Surgery’s amended complaint. While that motion was
pending, the Texas district court vacated portions of the regulations
governing the IDR process, and the Departments paused IDR
operations to make the changes necessary to comply with that court’s
decision. In September 2023, Neurological Surgery moved for leave
to file a second amended complaint, adding a request that the district
court order the Departments to fully restart all IDR process operations
immediately. The Departments opposed the motion, arguing in part
that Neurological Surgery’s proposed amendment had already been
mooted by the reopening of the IDR process, which was already
under way.

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After confirming that the IDR process was open and had been
for multiple months, the district court granted the motion to dismiss.
See Neurological Surgery Prac. of Long Island, PLLC v. Dep't of Health &
Hum. Servs., No. 23-CV-2977 (BMC), 2024 WL 3327640 (E.D.N.Y. Apr.
1, 2024). The court agreed that Neurological Surgery’s attempt to
challenge the pause was moot because the IDR process was
operational for all claims and “all present circumstances” supported
the conclusion that a global pause was unlikely to recur. Id. at *2. The
court then dismissed all of Neurological Surgery’s claims for
mootness. In a footnote, noted that it agreed with the Departments
“that the [c]ourt’s reasoning in dismissing the original complaint is
just as applicable to the amended complaint.” Id. at *2 n.1. The court
explained that there were “no new allegations, and plaintiff [was]
simply rearguing the substantive points under the No Surprises Act
that this Court already rejected.” Id. The court therefore confirmed
that it would have dismissed the amended complaint regardless of
the mootness issue. Id.
Neurological Surgery moved for reconsideration, arguing that
“significant issues remain with the IDR portal and [No Surprises Act]
implementation.” App’x at 522, see id. at 521–27. The district court
denied that motion on June 11, 2024. See Neurological Surgery Prac. of
Long Island, PLLC v. Dep't of Health & Hum. Servs., No. 23-CV-2977
(BMC), 2024 WL 3327639 (E.D.N.Y. June 11, 2024). The court
reiterated that all of “plaintiff’s claims were properly dismissed as
moot.” Id. at *2. The court also reaffirmed its conclusion that the
“action should be dismissed on the merits even if it is not moot.” Id.

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It declined to compel the Departments to ensure “that a sufficient
number of [IDR] entities are certified,” holding that Neurological
Surgery lacked standing under the APA because “the statute does not
mandate any discrete actions to ‘ensure’ compliance with these
requirements,” and because Neurological Surgery cannot “point to
any provision requiring defendants to certify a certain number of IDR
[entities].” Id. at *2–3. As for the Departments’ guidance document
on New York’s surprise billing law, the court noted that the
Departments had already taken the guidance down and that there
was no “discrete requirement” for the Departments to issue new
guidance. Id. at *3; see App’x at 524. The court concluded that
allowing Neurological Surgery to amend its complaint again would
therefore be futile.
This appeal followed.
IV. Discussion
We review a district court’s grant of a motion to dismiss de novo,
“accepting the allegations in the complaint as true and drawing all
reasonable inferences in favor of the plaintiff.” Palmer v. Amazon.com,
Inc., 51 F.4th 491, 503 (2d Cir. 2022). “To survive a motion to dismiss,
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 omitted). We also
generally review de novo questions of standing and mootness.
Connecticut Citizens Def. League, Inc. v. Lamont, 6 F.4th 439, 444 (2d Cir.
2021).

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On appeal, Neurological Surgery asks us to vacate the grant of
the Departments’ motion to dismiss, challenging the district court’s
conclusions that: (i) Neurological Surgery’s claims are moot;
(ii) Neurological Surgery lacks standing to compel the Departments
to enforce the deadlines in the No Surprises Act on healthcare plans
and IDR entities; (iii) Neurological Surgery’s claim that the
Departments failed to certify a sufficient number of IDR entities is
foreclosed under the APA because the No Surprises Act does not
identify a discrete action that the Departments must take to comply
with that mandate; and (iv) Neurological Surgery’s claim that the
Departments have failed to provide corrected guidance on New
York’s surprise billing law is also foreclosed by the APA for the same
reasons.
For the reasons set forth below, we substantially agree with the
district court’s conclusions and affirm its dismissal of Neurological
Surgery’s amended complaint.
a. Only Neurological Surgery’s Challenge to the Pause
of the IDR Portal Is Moot
Article III of the Constitution requires that a live case or
controversy must exist at all stages of federal court proceedings to
support a court’s subject matter jurisdiction. See Preiser v. Newkirk,
422 U.S. 395, 401 (1975). The mootness doctrine is derived from that
constitutional requirement, see North Carolina v. Rice, 404 U.S. 244, 246
(1971)—it “ensures that [a] litigant’s interest in the outcome continues
to exist throughout the life of the lawsuit,” Palmer, 51 F.4th at 503
(internal quotation marks omitted). “The hallmark of a moot case or

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controversy is that the relief sought can no longer be given or is no
longer needed.” Martin-Trigona v. Shiff, 702 F.2d 380, 386 (2d Cir.
1983). When that happens and “the parties lack a legally cognizable
interest in the outcome, a case is moot and the federal court is divested
of jurisdiction over it.” Catanzano v. Wing, 277 F.3d 99, 107 (2d Cir.
2001) (internal citation and quotation marks omitted). So, “a case that
is live at the outset may become moot when it becomes impossible for
the courts, through the exercise of their remedial powers, to do
anything to redress the injury.” Cook v. Colgate Univ., 992 F.2d 17, 19
(2d Cir. 1993) (internal quotation marks omitted).
In this case, Neurological Surgery seeks to challenge the
Departments’ temporary pause of the IDR portal and asks the district
court for relief in the form of an order mandating that the
Departments “[f]ully restart all IDR process operations immediately.”
App’x at 445. Though Neurological Surgery first moved to challenge
the Departments’ actions while the portal was paused, the portal has
since been reopened. Indeed, the district court confirmed the IDR
portal was operational and had been for multiple months at the time
of its decision. Neurological Surgery does not allege that the portal
has been paused again since then; nor does it dispute that the portal
is currently operational. “[T]he relief sought” by Neurological
Surgery—an order mandating the reopening of the portal—is thus
“no longer needed.” Martin-Trigona, 702 F.2d at 386. Any order
requiring the Departments to restart the already operational IDR
process would therefore be pointless.

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Neurological Surgery argues that despite the reopening of the
IDR portal, it is still entitled to relief because the government cannot
show that a pause of the portal will not recur. This Court has
recognized certain “exceptions to the mootness doctrine[,] includ[ing]
voluntary cessation cases.” Srour v. New York City, New York, 117 F.4th
72, 81 (2d Cir. 2024) (internal quotation marks omitted). “Under this
principle, ‘a defendant's voluntary cessation of a challenged practice
does not deprive a federal court of its power to determine the legality
of the practice.’” Mhany Mgmt., Inc. v. Cnty. of Nassau, 819 F.3d 581,
603 (2d Cir. 2016) (quoting City of Mesquite v. Aladdin's Castle, Inc.,
455 U.S. 283, 289 (1982)). Instead, to render the case moot, a defendant
must “demonstrate that (1) there is no reasonable expectation that the
alleged violation will recur and (2) interim relief or events have
completely and irrevocably eradicated the effects of the alleged
violation.” Id. (internal quotation marks omitted). Although we
generally review issues of mootness de novo, we review for abuse of
discretion the district court’s determination as to whether it is
reasonable to expect a defendant’s conduct to recur. Connecticut
Citizens Def. League, 6 F.4th at 446.
The district court here found that “all present circumstances
point to the fact that [the challenged conduct] will not [recur],” and
characterized the possibility of recurrence as “entirely speculative.”
Neurological Surgery, 2024 WL 3327640, at *2. The district court stated
there was nothing in the record to suggest that “if some . . . practical
infirmity arises, it cannot be dealt with without the kind of global
pause that was implemented here.” Id. On reconsideration, the

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district court again found that “[n]othing in the record suggests that
there will be another decision [like the Texas district court decision]
requiring an additional pause of the IDR process, and [P]laintiff cites
no other reasons why the alleged misconduct is likely to recur.”
Neurological Surgery, 2024 WL 3327639, at *2. The court noted that
“[t]he mere fact that defendants previously paused the IDR process
does not make it any more likely that defendants will do so again in
the future.” Id.
We find no abuse of discretion in the district court’s
determination that another pause is unlikely to recur. Given the
circumstances—that the Departments paused the portal in response
to federal judicial decisions that vacated certain of the Departments’
No Surprises Act implementing regulations—we agree with the
district court that the likelihood of another pause seems “only a
theoretical and speculative possibility.” Lillbask ex rel. Mauclaire v.
Conn. Dep't of Educ., 397 F.3d 77, 87 (2d Cir. 2005). The possibility that
unspecified future litigation may again take the portal offline is too
remote a possibility to substantiate Neurological Surgery’s claim. We
also note that the voluntary cessation doctrine “traces to the principle
that a party should not be able to evade judicial review, or to defeat a
judgment, by temporarily altering questionable behavior.” City News
& Novelty, Inc. v. City of Waukesha, 531 U.S. 278, 284 n. 1 (2001). There
is nothing in the record here to suggest that the government
temporarily reopened the IDR portal to evade judicial review in this
case—rather, as noted above, the portal was stopped and restarted for
reasons wholly unrelated to this litigation. Accordingly, we affirm

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the district court’s dismissal of Neurological Surgery’s challenge to
the pause of the IDR portal as moot.
We note, however, that the district court dismissed all of
Neurological Surgery’s claims as moot based on the reopening of the
IDR portal. See Neurological Surgery, 2024 WL 3327640, at *2 (“I agree
with [the Departments] that this case is moot.”). We find this
approach incorrect. Though the reopening rendered moot its claim
specifically challenging the pause of the portal, Neurological
Surgery’s other claims regarding the failure to enforce statutory
deadlines, the failure to certify a sufficient number of IDR entities, and
the failure to provide guidance on the New York Surprise Bill Law,
which it brought prior to the pause, remain unaffected by the
reopening of the portal. The district court found that “[t]here is
nothing in the record to suggest that the new process is inadequate to
handle the previously-unanticipated number of claims,” id., but there
is nothing in the record to suggest that the reopening of the portal
resolved the other issues alleged by Neurological Surgery. That said,
the district court also concluded that Neurological Surgery’s
remaining claims failed on alternative grounds. As we discuss below,
that conclusion was correct and provided an independent basis for
dismissal of the amended complaint in its entirety.
b. Neurological Surgery Lacks Standing to Compel the
Departments to Enforce Statutory Deadlines on
Healthcare Plans and IDR Entities
We next consider the district court’s determination that
Neurological Surgery lacks standing under the APA and Due Process

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Clause to compel the Departments to enforce the Act’s deadlines on
healthcare plans and IDR entities. As an initial matter, though
Neurological Surgery’s original complaint included an APA claim
challenging the Departments’ failure to enforce deadlines, its
amended complaint does not. Compare App’x at 31–33 with id. at 234–
245. “[I]t is well-established that an amended complaint ordinarily
supersedes the original, and renders it of no legal effect.” Dluhos v.
Floating & Abandoned Vessel, Known as New York, 162 F.3d 63, 68
(2d Cir. 1998) (internal quotation marks omitted); see also Austin v.
Ford Models, Inc., 149 F.3d 148, 155 (2d Cir. 1998) (“[A]ll causes of
action alleged in an original complaint which are not alleged in an
amended complaint are waived.” (internal quotation marks
omitted)). Neurological Surgery has therefore forfeited its APA
challenge to the Departments’ nonenforcement of deadlines by failing
to include the claim in its amended complaint. Accordingly, we
address only Neurological Surgery’s standing to bring a due process
claim.3
Like the mootness doctrine, the standing doctrine also emerges
from Article III and was developed to “ensure the presence of ‘that
concrete adverseness which sharpens the presentation of issues upon
which the court so largely depends.’” Lee v. Bd. of Govs. of the Fed.
3 Even if this Court were to (very broadly) construe the amended complaint
as bringing an APA claim challenging the Departments’ failure to enforce
deadlines, any such claim would be unreviewable. See Heckler v. Chaney, 470 U.S.
821, 831 (1985) (“[A]n agency’s decision not to prosecute or enforce, whether
through civil or criminal process, is a decision generally committed to an agency’s
absolute discretion.”).

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Rsrv. Sys., 118 F.3d 905, 910 (2d Cir. 1997) (quoting Baker v. Carr,
369 U.S. 186, 204 (1962)). “The constitutional limitations of Article III
demand that [plaintiffs] demonstrate injury flowing from [a]
challenged [action].” Id. Accordingly, the doctrine imposes three
familiar requirements: “The plaintiff must have (1) suffered an injury
in fact, (2) that is fairly traceable to the challenged conduct of the
defendant, and (3) that is likely to be redressed by a favorable judicial
decision.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016). Importantly,
“[the] plaintiff must demonstrate standing for each claim and form of
relief sought.” Cacchillo v. Insmed, Inc., 638 F.3d 401, 404 (2d Cir. 2011)
(internal quotation marks omitted).
The Supreme Court has emphasized that standing is
“substantially more difficult to establish” where, like here, “the
plaintiff is not himself the object of the government action or inaction
he challenges.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 562 (1992)
(internal quotation marks omitted). The Court observed: “When . . .
a plaintiff’s asserted injury arises from the government’s allegedly
unlawful regulation (or lack of regulation) of someone else, much more
is needed [than in cases where the plaintiff is the object of government
action].” Id. (emphasis in original). “This stems not from the absence
of concrete injury but rather from want of the remaining
constitutional elements of standing: causation and redressability.”
Lee, 118 F.3d at 912. It is “the burden of the plaintiff to adduce facts
showing that [the choices of the third party] have been or will be
made in such manner as to produce causation and permit
redressability of injury.” Lujan, 504 U.S. at 562. Thus, “[w]hile . . . it

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does not suffice [for standing] if the injury complained of is the result
of the independent action of some third party not before the court, that
does not exclude injury produced by determinative or coercive effect
upon the action of someone else.” Bennett v. Spear, 520 U.S. 154, 169
(1997) (internal quotation marks, alteration marks, and citations
omitted).
We agree with the district court that to the extent Neurological
Surgery seeks to compel enforcement of the deadlines on healthcare
plans and IDR entities, it lacks standing to do so. Neither party
disputes that Neurological Surgery has shown an actual, concrete
injury in the form of delayed payments for the services it has
provided. But we read the amended complaint to suggest that that
injury is caused by the healthcare plans and IDR entities, not by the
Departments, and therefore hold that Neurological Surgery has failed
to carry its burden of alleging causation and redressability.
Neurological Surgery’s amended complaint alleges primarily
that its compensation payments were delayed due to the failure of
healthcare plans and IDR entities to faithfully comply with the
provisions of the Act. The amended complaint alleges that “the
health[care] plans have completely failed to comply with” the
deadlines set by the Act, and that when they do comply, they often
make de minimis initial payments up front and rely on the IDR process
to delay full payment to providers like Neurological Surgery. App’x
at 222. The amended complaint similarly alleges that the IDR entities
have “routinely ignored” the deadlines set by the Act, and that even
when the process is running, the lack of a sufficient number of IDR

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entities coupled with high demand for the entities results in delayed
compensation determinations and, therefore, belated payments to
Neurological Surgery for their services. App’x at 224. We thus read
the amended complaint to claim that Neurological Surgery’s injury is
caused by the actions of the healthcare plans and IDR entities.
With respect to the Departments, the amended complaint states
only in a vague and conclusory fashion that the Departments’
“actions and inactions” have “rendered the IDR process untimely,
ineffective, and inefficient.” Id. at 239. Though we have previously
stated that “a plaintiff’s injury need not be ‘directly’ attributable to a
defendant in order to show the causation element of standing to sue
that defendant,” the injury must still be “fairly traceable to that
defendant.” Carter v. HealthPort Techs., LLC, 822 F.3d 47, 59 (2d Cir.
2016) (internal quotation marks omitted).4 But Neurological Surgery
fails to allege sufficient facts indicating that the delayed payments are
“fairly traceable” to the Departments’ actions or inactions. To the
extent the amended complaint establishes any connection between
Neurological Surgery’s injury and the Departments’ actions, we
conclude that the connection is “too speculative [and] too attenuated”
to establish standing. FDA v. All. for Hippocratic Med., 602 U.S. 367,
383 (2024). Neurological Surgery urges us to make the connection
4 We note that Neurological Surgery attempts to reframe the IDR entities
as “agents of the Departments” to argue that they are not in fact “third-parties.”
Appellant Br. at 29. We are unpersuaded by this argument. Neurological Surgery
fails to allege any facts in the amended complaint to establish a principal-agent
relationship. Indeed, the complaint characterizes the entities as “third-party IDR
entities—essentially dispute resolution neutrals.” App’x at 216. This argument
therefore fails.

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that its injury was caused by the failure of the healthcare plans and IDR
entities to meet deadlines, which was caused by the Departments’
failure to enforce them. But the facts alleged in the complaint do not
suggest the Departments’ inaction had a determinative effect on the
third parties—indeed, it is not “sufficiently predictable” from the
complaint how either third party would react to the Departments’
enforcement of deadlines. Id. The healthcare plans might not find it
feasible to meet the deadlines, and the complaint in fact suggests that
the IDR entities likely do not have the resources to meet the deadlines
even if enforced. Neurological Surgery asks our Court to make the
speculative inference that these third parties would follow the
deadlines if enforced, but it has failed to allege any facts to suggest
they would. See Lujan, 504 U.S. at 562. We hold that it has therefore
failed to show causation and to establish its standing to compel the
Departments to take action.
Neurological Surgery’s claim also separately fails because it has
not shown that its injury is likely to be “redressed by a favorable
judicial decision.” Spokeo, 578 U.S. 338. Causation and redressability
are often “flip sides of the same coin.” Sprint Commc’ns Co., L.P. v.
APCC Servs., Inc., 554 U.S. 269, 288 (2008). “If a defendant’s action
causes an injury, enjoining the action or awarding damages for the
action will typically redress that injury.” FDA, 602 U.S. at 381. But
because Neurological Surgery cannot show that its injury was caused
by the Departments’ inaction, it also cannot show that the relief it
seeks would redress its injury. As we allude to above, the amended
complaint suggests that if the Departments were to enforce deadlines

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on the healthcare plans and IDR entities, Neurological Surgery would
continue to suffer from delayed payments for its services. For the
healthcare plans, “it [is] far better to retain the appropriate
reimbursement funds in their coffers” and “pressure [providers] to
accept low in-network rates,” rather than “pay an appropriate
amount in the first instance.” App’x at 222. And the low number of
certified IDR entities faced with high demand for payment
determinations casts doubt on their ability to meet any deadlines.
Thus, even if we were to direct the district court to grant Neurological
Surgery the relief it requests, the facts as alleged in the complaint
suggest that Neurological Surgery would likely continue to suffer
from the same injury. Healthcare plans would remain incentivized to
make only de minimis initial payments to delay full payment up front,
and the IDR entities would remain constrained to delay payment
determinations due to their low numbers. As the Departments point
out, Neurological Surgery “has not explained what actions it believes
the Departments have the authority and resources to take that would
ensure that IDR entities and [healthcare plans] meet the[] deadlines.”
Appellee Br. at 18–19. Thus, Neurological Surgery fails to show that
its injury would be redressed by the relief it requests.
Accordingly, we conclude that the district court properly found
that Neurological Surgery lacked standing to compel the Department
to enforce the statutory deadlines on healthcare plans and IDR

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entities. We therefore affirm the dismissal of Neurological Surgery’s
due process claim seeking to compel the Departments to do so.5
c. Neurological Surgery’s Challenge to the Departments’
Failure to Certify a Sufficient Number of IDR Entities
Is Foreclosed by the APA
We next turn to the district court’s dismissal of Neurological
Surgery’s challenge to the Departments’ failure to certify a sufficient
5 In its amended complaint, Neurological Surgery also alleged, as part of
its due process claim, that the Departments caused the payment delays by
“[f]ailing to obey the Congressional mandate that the Departments shall ensure
that a sufficient number of [IDR] entities are certified . . . to ensure the timely and
efficient provision of [IDR] determinations.” App’x at 240 (internal quotation
marks, citation, and emphasis omitted). It therefore sought an injunction ordering
the Departments to “[t]ake all steps necessary to obey” the requirement that they
ensure that a sufficient number of IDR entities are certified. Id. at 241. The parties
do not dispute that Neurological Surgery had standing to do so. However, the
district court held that Neurological Surgery’s due process challenge under either
theory failed to state a claim because (i) Neurological Surgery did not identify a
federally protected constitutional right and cited only New York state cases; and
(ii) Neurological Surgery did not show any deprivation of that right at the hands
of the government rather than third parties. On appeal, Neurological Surgery
summarily states that the entitlement to be reimbursed for services rendered at the
request of a patient is a “cognizable property interest [and] is protected against
unlawful federal interference under the due process and takings clauses of the
Fifth Amendment.” Appellant Br. at 33. Neurological Surgery fails to develop the
argument further or to engage with the district court’s decision beyond citing the
same state cases. Because it has failed to sufficiently brief the issue, we conclude
that it has forfeited any due process challenge to the district court’s decision.
See Tolbert v. Queens Coll., 242 F.3d 58, 75 (2d Cir. 2001) (“It is a settled appellate
rule that issues adverted to in a perfunctory manner, unaccompanied by some
effort at developed argumentation, are deemed waived.” (internal quotation
marks omitted)); Norton v. Sam's Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not
sufficiently argued in the briefs are considered waived and normally will not be
addressed on appeal.”).

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number of IDR entities. 6 Neurological Surgery alleges that the
Departments’ failure to certify enough IDR entities violates the No
Surprises Act and has resulted in delayed payment determinations,
which consequently delayed compensation to Neurological Surgery
for its services. Neurological Surgery therefore brings a claim under
Section 706(1) of APA to compel the Departments to “meet the IDR
certification mandate” of the Act. Appellant Br. at 37.
Section 706(1) allows a court to “compel agency action
unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1). A
claim under this section may proceed only where the plaintiff
identifies a “discrete agency action that [the agency] is required to
take.” Norton v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004)
(emphases omitted). The limitation to discrete agency action
precludes “broad programmatic attack[s]” on agency operations, and
“[t]he limitation to required agency action rules out judicial direction
of even discrete agency action that is not demanded by law.” Id. at
64–65. The Supreme Court has explained that, like the power to grant
writs of mandamus, Ҥ 706(1) empowers a court only to compel an
6 In its brief before our Court, Neurological Surgery argues only that it has
a cognizable claim under Section 706(1) of the APA. It has consequently forfeited
any challenge to the district court’s holding under the Due Process Clause (as we
discuss in the footnote above) or other provisions of the APA. See JP Morgan Chase
Bank v. Altos Hornos de Mexico, S.A. de C.V., 412 F.3d 418, 428 (2d Cir. 2005)
(“[A]rguments not made in an appellant’s opening brief are waived even if the
appellant pursued those arguments in the district court or raised them in a reply
brief.”). Similarly, although the district court does not appear to have passed on
Neurological Surgery’s claims under the All Writs Act, Neurological Surgery does
not challenge that potential infirmity on appeal and has therefore waived the issue.
We therefore address only Neurological Surgery’s Section 706(1) claim.

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agency to perform a ministerial or non-discretionary act, or to take
action upon a matter, without directing how it shall act.” Id. at 64
(internal quotation marks and citation omitted). So, “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.” Id. at 65.
Neurological Surgery argues that “[t]he requirement that the
Departments shall ensure that a sufficient number of IDR entities are
certified to ensure the timely and efficient provision of IDR
determinations” is a discrete agency action that the Departments are
required to take under the No Suprises Act. Appellant Br. at 36
(internal quotation marks, alteration, and citation omitted). We
disagree. Section 300gg-111(c)(4)(A) of the Act states that the
Secretary of Health and Human Services, in consultation with the
Secretary of Labor and Secretary of the Treasury, “shall establish a
process to certify (including to recertify) [IDR] entities.” Section
300gg-111(c)(4)(E) in turn states that “[t]he process described in
subparagraph (A) shall ensure that a sufficient number of entities are
certified under this paragraph to ensure the timely and efficient
provision of determinations.” The Act therefore does require a
discrete action from the Departments: They must “establish a process
to certify” a “sufficient number” IDR entities. It is undisputed that
the Departments have done so. But the statute does not provide that
the Departments must take additional discrete measures, such as

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monitoring the output of the certification process, to “ensure that a
sufficient number of entities are certified.”7
Most critically, Neurological Surgery has not identified a
discrete action that the Departments have failed to take. Indeed, its
failure to do so is evident in the very relief that Neurological Surgery
asks for: a declaration, writ of mandamus, and/or permanent
injunction “directing that the Departments . . . [t]ake all steps
necessary to obey the Congressional mandate that the Departments
shall ensure that a sufficient number of IDR entities are certified.”
App’x at 235, 237, 241. Neurological Surgery elaborates in its brief
that it “is not asking the Court to curtail [the Departments’] discretion
by identifying particular steps [they] are required to take to comply with
the statute.” Appellant Br. at 37 (emphasis added). But that is the
precise problem with Neurological Surgery’s claim. It cannot
“outlin[e] discrete actions that a court may require [the Departments]
to do,” Benzman v. Whitman, 523 F.3d 119, 131 (2d Cir. 2008), because
there are no such actions enumerated in the statute. Thus,
Neurological Surgery is left with the “broad programmatic attack” of
asking our Court to mandate that the Departments take “all steps
7 We acknowledge, however, that the Act is specific enough to require that
the Departments certify at least some IDR entities. Had the Departments failed to
certify any entity, that would have been the type of failure that could be challenged
under the Act as a failure to “ensure that a sufficient number of entities are
certified.” 42 U.S.C. § 300gg-111(c)(4)(E). In that case, while we still could not tell
the Departments how many IDR entities to make available, a party could compel
the Departments under the APA to certify at least some.

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necessary” to comply with the Act—exactly the type of vague
challenge foreclosed by the APA. Norton, 542 U.S. at 64.
We take this opportunity to emphasize again why APA review
is not available in cases like the one before us. The Supreme Court
has explained that the principal purpose of limiting APA claims to
discrete agency actions that agencies are required to take “is to protect
agencies from undue judicial interference with their lawful discretion,
and to avoid judicial entanglement in abstract policy disagreements
which courts lack both expertise and information to resolve.” Id. at
66. Indeed, if our Court was empowered to grant Neurological
Surgery the request it seeks, we would necessarily take on the role of
an oversight body with the task of determining how many IDR
entities are “sufficient” for the certification process, or what
constitutes the “timely and efficient” provision of payment
determinations. 42 U.S.C. § 300gg-111(c)(4)(E). Our Court, “rather
than the agency, [would] work out compliance with the broad
statutory mandate, injecting the judge into day-to-day agency
management.” Norton, 542 U.S. at 66–67. As previously noted, there
are any number of complexities involved in certifying IDR entities.
That “prospect of pervasive oversight by federal courts over the
manner and pace of agency compliance with such congressional
directives is not contemplated by the APA.” Id.
The Court sympathizes with Neurological Surgery’s complaint
that delays are rampant with the IDR process because there are not
enough IDR entities and that it, in turn, has been forced to wait to
receive adequate compensation for the services it provides. But

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Neurological Surgery “cannot seek wholesale improvement of th[e]
[IDR process] by court decree, rather than in the offices of the
Department or the halls of Congress, where programmatic
improvements are normally made.” Lujan, 497 U.S. at 891 (emphasis
omitted). Accordingly, we hold that the district court properly found
that Neurological Surgery’s challenge to the Departments’ failure to
certify a sufficient number of IDR entities is foreclosed by the APA.
We therefore affirm its dismissal of the claim.
d. Neurological Surgery’s Challenge to the Departments’
Failure to Provide Guidance on New York’s Surprise
Billing Law Fails to State a Claim
Finally, we address Neurological Surgery’s challenge to the
Departments’ failure to provide guidance on New York’s Surprise
Billing Law. Neurological Surgery seeks to compel the Departments
to issue affirmative guidance regarding the eligibility criteria for
arbitration under the New York statute. For some time, the
Departments had guidance regarding the statute on the Centers for
Medicare & Medicaid Services website. Neurological Surgery alleges
that the guidance was incorrect, as it misstated the scope of New
York’s surprise billing law, causing IDR entities to conclude
mistakenly that certain disputes were not eligible for the federal IDR
process.
The parties agree that the Departments have since withdrawn
the guidance. Nevertheless, Neurological Surgery asks this Court to
compel the Departments “to take all steps necessary to correct its
erroneous determination, including providing clarified guidance.”

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Appellant Br. at 41. However, Neurological Surgery cites no
authority supporting its contention that an agency must issue a
“notice of [a] change in policy or clarification of [a] governing law”
when it removes guidance from its website. Id. Nor does
Neurological Surgery contend that the failure to issue proper
clarification is a “discrete agency action that [the agency] is required
to take” under the No Surprises Act. Norton, 542 U.S. at 64. For those
reasons, it has failed to state a claim under the APA, and we therefore
affirm the district court’s dismissal.
V. Conclusion
In sum, we hold as follows:
1. Neurological Surgery’s challenge to the pause of the IDR
portal is moot. The portal is currently operational, and the
district court did not abuse its discretion in finding that the
possibility of recurrence is entirely speculative.
2. Neurological Surgery lacks standing to compel the
Departments to enforce the Act’s deadlines on healthcare
plans and IDR entities. Though Neurological Surgery has
shown an injury in the form of delayed payments for its
services, we read its amended complaint to suggest that its
injury is caused by the healthcare plans and IDR entities, not
by the Departments. The district court therefore properly
concluded Neurological Surgery has failed to establish
standing to advance this claim.

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3. Neurological Surgery’s challenge to the Departments’
failure to certify a sufficient number of IDR entities is
foreclosed by the APA. The No Surprises Act does not
require that the Departments themselves ensure that a
sufficient number of IDR entities are certified, nor does the
Act identify any discrete actions the Department must take
to do so. Thus, the district court rightly held that
Neurological Surgery has failed to show a discrete action
that the Departments are required to take, precluding APA
review of its claim.
4. Neurological Surgery’s challenge to the Departments’
failure to issue guidance on the New York Surprise Bill Law
fails to state a claim. Neurological Surgery has failed to
allege that the issuance of additional guidance to clarify the
scope of the New York law is a discrete agency action that
the Departments are required to take under the No
Surprises Act. It has therefore failed to state a claim under
the APA.
Accordingly, we AFFIRM the district court’s judgment.

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