# United States **Court of Appeals**  **for the Federal Circuit**

______________________
LAND OF LINCOLN MUTU AL HEALTH INSURANCE COMPANY, AN ILLINOIS NON

PROFIT MUTUAL INSURANCE CORPORATION, Plaintiff

- Appellant

v.
UNITED STATES, Defendant

- Appellee

______________________
2017

- 1224

______________________ Appeal from the United States Court of Federal Claims in No. 1:16

- cv

- 00744

- CFL, Judge Charles F. Lettow.

______________________
Decided: June 14, 2018

______________________
J ONATHAN M ASSEY , Massey & Gail LLP, Washington, DC , argued for plaintiff

- appellant. Also represented by D ANIEL P. A LBERS , Barnes & Thornburg LLP, Chicago, IL; S COTT E. P ICKENS , Washington, DC

.
A LISA B ETH K LEIN , Appellate Staff, Civil Division, United States Department of Justice, Washington, DC, argued for defendant

- appellee. Also represented by C HAD A. R EADLER , A UGUST E. F LENTJE , M ARK B. S TERN , C ARLEEN M ARY Z UBRZYCKI

.LAND OF LINCOLN MUTUAL HEALTH v. UNITED STATES 2

B ARAK B ASSMAN , Pepper Hamilton LLP, Phila delphia, PA, for amicus curiae National Alliance of State Health CO

- Ops. Also represented by M ARC D. M ACHLIN , Was hington, DC.

L AWRENCE S HER , Reed Smith LLP, Washington, DC, for amici curiae Highmark Inc., Highmark BCBSD Inc., Highmark West Virginia Inc. , Blue Cross and Blue Shield of North Carolina, Blue Cross of Idaho Health Service, Inc., Blue Cross and Blue Shield of Kansas City. Also represented by K YLE R ICHARD B AHR , C ONOR M ICHAEL S HAFFER , C OLIN E. W RABLEY , Pittsburgh, PA.

D ANIEL G ORDON J ARCHO , McKenna Long & Aldridge, LLP, Washington, DC, for amici curiae Avera Health Plans, DAKOTACARE.

S TEVEN R OSENBAUM , Covington & Burling LLP, Washington, DC, for amicus curiae Moda Health Plans, Inc. Also represented by C AROLINE B ROWN

.

L ESLIE B ERGER K IE RNAN , Akin, Gump, Strauss, Hauer & Feld, LLP , Washington, DC, for amicus curiae Amer icas Health Insurance Plans. Also represented by R OBERT K. H UFFMAN ; R UTHANNE M ARY D EUTSCH , H YLAND H UNT , Deutsch Hunt PLLC, Washington, DC.

S TEPHEN A. S WEDLOW , Quinn Eman uel Urquhart & Sullivan, LLP, Chicago, IL, for amici curiae Health R epublic Insurance Company, Alliance of Community Health Plans. Also represented by J. D. H ORTON , A DAM W OLFSON , Los Angeles, CA.

A NKUR G OEL , McDermott, Will & Emery LLP, Was hington, DC, for amici curiae Blue Cross and Blue Shield of South Carolina, BlueChoice HealthPlan of South Carol i-LAND OF LINCOLN MUTUAL HEALTH v. UNITED STATES 3

na, Inc. Also represented by M. M ILLER B AKER , J OSHUA D AVID R OGACZEWSKI

.

T HOMAS G. H UNGAR , Office of General Counsel, Uni ted States House of Representativ es, Washington, DC, for amicus curiae United States House of Representatives. Also represented by K IMBERLY H AMM , T ODD B. T ATELMAN

.

______________________
Before P ROST , Chief Judge, N EWMAN and M OORE , Circuit Judges. Opinion for the court filed by Chief J udge P ROST

. Dissenting opinion filed by Circuit Judge N EWMAN

. P ROST , Chief Judge.

F or the reasons stated in our decision in the compa nion case
, Moda Health Plan, Inc. v. United States , No. 17

- 1994, the statutory and contract claims of appellant Land of Lincoln Mutual Health fail. Additionally, because Land of Lincoln cannot state a contract claim, its taking s claim fails to the extent it relies on the existence of a contract. What remains is Land of Lincoln’s taking s claim to the extent that claim arise s from its statutory entitlement to full payments

. We have previously held that “no stat utory obligation to pay money, even where unchallenged, can create a property interest within the meaning of the Takings Clause.” Adams v. United States
, 391 F.3d 121 2, 1225 (Fed. Cir. 2004) (citing Commonwealth Edison Co. v. United States , 271 F.3d 1327, 1340 (Fed. Cir. 2001) (en banc)). Land of Lincoln offers no basis for departing from that rule, and we see none. Accordingly, Land of Lincoln’s takings claim fails.
Because we hold that the trial court correctly granted judgment for the government as a matter of law, we need not address whether the trial court properly reached that conclusion via judgment on the administrative record.LAND OF LINCOLN MUTUAL HEALTH v. UNITED STATES 4

AFFIRMED
C OSTS The parties shall bear their own costs.

# United States **Court of Appeals**  **for the Federal Circuit**

______________________
LAND OF LINCOLN MUTU AL HEALTH INSURANCE COMPANY, AN ILLINOIS NON

PROFIT MUTUAL INSURANCE CORPORATION, Plaintiff

- Appellant

v.
UNITED STATES, Defendant

- Appellee

______________________
2017

- 1224

______________________ Appeal from the United States Court of Federal Claims in No. 1:16

- cv

- 00744

- CFL, Judge Charles F. Lettow.

______________________

N EWMAN , Circuit Judge , dissenting

. For the reasons stated in my dissent in the concu rrently heard case, Moda Health Plan, Inc. v. United States , No. 17

- 1994, the ruling of the Court of Federal Claims should be reversed. The panel majority concedes that the government has a statut ory obligation to make risk corridors payments to Land of Lincoln Mutual Health Insurance Company

. That obligation has not been altered by statute or regul ation. The Court of Federal Claims erred in its statutory interpretation, a nd in its conclusion that the governmentLAND OF LINCOLN MUTUAL HE ALTH v. UNITED STATES 2

need not meet the obligations by which it induced the nation’s health insurers to implement the Affordable Care Act. I respectfully dissent from my colleagues’ endors ement of this flawed ruling.