LAND OF LINCOLN MUTUAL HEALTH INSURANCE COMPANY, an Illinois Non-Profit Mutual Insurance Corporation, Plaintiff-Appellant v. UNITED STATES, Defendant-Appellee

Newman, Circuit Judge, dissenting.

For the reasons stated in my dissent in the concurrently 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 statutory obligation to make risk corridors payments to Land of Lincoln Mutual Health Insurance Company. That obligation has not been altered by statute or regulation. The Court of Federal Claims erred in its statutory interpretation, and in its conclusion that the government need not meet the obligations by which it induced the nations health insurers to implement the Affordable Care Act. I respectfully dissent from my colleagues endorsement of this flawed ruling.

Dissenting opinion filed by Circuit Judge Newman.

Prost, Chief Judge.

For the reasons stated in our decision in the companion 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 takings claim fails to the extent it relies on the existence of a contract.

What remains is Land of Lincolns takings claim to the extent that claim arises from its statutory entitlement to full payments. We have previously held that no statutory 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 1212, 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 Lincolns 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.

AFFIRMED

COSTS

The parties shall bear their own costs.