United States v. Common Ground Healthcare Cooperative, On Behalf of Itself and All Others Similarly Situated

Section 1402 of the Patient Protection and Affordable Care Act (ACA), Pub. L. No. 111-148, 124 Stat. 220, requires insurers to reduce cost sharing (such as deductibles and copayments) for certain individuals who purchase “silver” plans through an ACA Exchange. 42 U.S.C. 18071. “[I]n order to reduce the premiums,” 42 U.S.C. 18082(a)(3), the ACA also directs the government to make advance payments to insurers equal to the value of such cost-sharing reductions (CSR payments), 42 U.S.C. 18082(c)(3). In October 2017, the government ceased making CSR payments to insurers after determining that it lacked any appropriation to pay them. For 2018 and subsequent years, many insurers offset the absence of CSR payments by increasing their silver-plan premiums. By operation of the ACA’s formula, increasing silver-plan premiums also resulted in a substantial increase in premium tax credits that the government pays to insurers on behalf of lower-income individuals. 26 U.S.C. 36B(b)(2)(B). Respondent brought this class action, on behalf of itself and similarly situated insurers, seeking money damages for unpaid CSR payments. In Community Health Choice, Inc. v. United States, 970 F.3d 1364 (Fed. Cir. 2020), petition and conditional cross-petition for cert. pending, No. 20-1162 (filed Feb. 19, 2021), and No. 20-1432 (filed Apr. 9, 2021), the court of appeals held that the government is liable to insurers for unpaid CSR payments but that an insurer’s damages must be offset to account for additional premium tax credits it received. In this case, the court entered judgment applying those holdings. The question presented is as follows: Whether the court of appeals erred in concluding that Congress intended to afford insurers an implied money-damages remedy as compensation for CSR payments that were not made because the government determined that it lacked an appropriation to pay them and that could generally be offset under other ACA provisions that insurers invoked to obtain a recovery. (I)