Health Reform WK-EDGE House’s amicus brief rejected in risk corridor case, DOJ keeps reins
Monday, November 14, 2016

House’s amicus brief rejected in risk corridor case, DOJ keeps reins

By Bryant Storm, J.D.

A federal court denied the United States House of Representative’s motion to file an amicus curiae brief in a class action lawsuit brought by Health Republic Insurance Company over the federal government’s nonpayment of risk corridor payments under the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) risk corridor program. The court held that because the proposed brief raised a novel ground for dismissal, the brief improperly imposed upon the Department of Justice’s (DOJ) exclusive authority to litigate the case (Health Republic Insurance Company v. U.S., November 7, 2016, Sweeney, M.).

Lawsuit. On February 24, 2016, Health Republic Insurance filed the lawsuit on behalf of itself and similarly situated insurers, asserting that the U.S. failed to fully pay risk corridor payments to insurers owed under the ACA’s risk corridor program. The DOJ moved to dismiss, asserting (1) the insurers lacked a claim for presently due money; (2) the claims were not ripe; and (3) the court lacked jurisdiction to award certain requested relief. On October 13, 2016, the House filed a motion for leave to file an amicus curiae brief, with a copy of the brief attached as an exhibit (see House Republicans file brief in $5B risk corridor suit, October 19, 2016).

Motion. The House motion sought to inform the court of the fact that the DOJ has moved to dismiss similar, later-filed cases on the grounds that insurers are not entitled to receive risk corridor program payments in excess of program receipts. Health Republic Insurance moved to dismiss the motion, asserting that because the DOJ did not raise the new argument in its motion to dismiss, the new argument could not be later raised in what was tantamount to a new motion to dismiss.

Exclusive authority. The court agreed with Health Republic Insurance, holding that because the sole rationale behind the amicus curiae brief was to present a ground for dismissal that was not raised by the DOJ, the motion improperly intruded on the DOJ’s "exclusive and plenary" authority to litigate the case on the government’s behalf. Accordingly, the court denied the House motion to file a brief.

The case is No. 16-259-C.

Attorneys: Stephen Swedlow (Quinn Emanuel Urquhart & Sullivan, LLP) for Health Republic Insurance Co. Charles E. Canter, U.S. Department of Justice, for The United States.

Companies: Health Republic Insurance Co.

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