PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 17-1937 THE ELECTRICAL WELFARE TRUST FUND, on behalf of itself and all others similarly situated, Plaintiff – Appellant, v. UNITED STATES OF AMERICA; UNITED STATES DEPARTMENT OF HEALTH & HUMAN SERVICES; ERIC HARGAN, in his official capacity as the Secretary of the United States Department of Health & Human Services, Defendants – Appellees. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Deborah K. Chasanow, Senior District Judge. (8:16-cv-02186-DKC) Argued: September 25, 2018 Decided: October 23, 2018 Before WILKINSON and AGEE, Circuit Judges, and James P. JONES, United States District Judge for the Western District of Virginia, sitting by designation. Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Agee and Judge Jones joined. ARGUED: Joseph H. Meltzer, KESSLER TOPAZ MELTZER & CHECK, LLP, Radnor, Pennsylvania, for Appellant. Karen Schoen, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. ON BRIEF: Melissa L. Troutner, KESSLER TOPAZ MELTZER & CHECK, LLP, Radnor, Pennsylvania; William P. Dale, MCCHESNEY & DALE, P.C., Bowie, Maryland, for Appellant. Chad A. Readler, Principal Deputy Assistant Attorney General, Alisa B. Klein, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Stephen M. Schenning, Acting United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellees. 2 WILKINSON, Circuit Judge: The Electrical Welfare Trust Fund (“the Fund”) sued under the Tax Refund Statute, 28 U.S.C. § 1346(a)(1) (2012), to recover more than $1 million paid to the Department of Health and Human Services (“HHS”) as part of the Transitional Reinsurance Program of the Patient Protection and Affordable Care Act of 2010. The district court dismissed for lack of subject matter jurisdiction, holding that because the payment was not a tax, exclusive jurisdiction for a suit for repayment lies with the Court of Federal Claims. The Fund challenges that ruling on appeal, and we now affirm. I. The Fund is a self-administered, self-insured employee health and welfare benefit plan created under a collective bargaining agreement. The Patient Protection and Affordable Care Act of 2010 (“ACA”) reformed several features of the health insurance industry, which collectively led to more high-risk individuals entering the insurance market. The ACA therefore included a Transitional Reinsurance Program to stabilize the markets by requiring payments from “health insurance issuers, and third party administrators on behalf of group health plans ….” 42 U.S.C. § 18061(b)(1)(A). These payments would be collected and then reallocated to insurers who covered the new high- risk individuals. The ACA authorized the HHS Secretary to promulgate regulations defining who would pay into the Transitional Reinsurance Program. See 42 U.S.C. § 18041(a)(1)(C). The initial regulation required entities like the Fund to pay, but later amendments excluded them. 3 The Fund thus paid into the Transitional Reinsurance Program for 2014, but not thereafter, and in June of 2016 filed suit in the United States District Court for the District of Maryland under 28 U.S.C. § 1346(a)(1), seeking a refund of its 2014 payment ...
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