The Electrical Welfare Trust Fund v. United States of America et al

Filing 26

MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 7/21/2017. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
THE ELECTRICAL WELFARE TRUST
FUND

:

v.

:

Civil Action No. DKC 16-2186

:
UNITED STATES OF AMERICA, et al.
:
MEMORANDUM OPINION
Presently pending and ready for resolution is the motion to
dismiss filed by Defendants Thomas E. Price,1 in his capacity as
Secretary of the United States Department of Health and Human
Services

(the

“Secretary”),

the

United

States

Department

of

Health and Human Services, and the United States of America
(collectively, the “United States” or the “Government”).
No. 18).

The issues have been fully briefed, and the court now

rules, no hearing being deemed necessary.
For

the

(ECF

following

reasons,

the

motion

Local Rule 105.6.
to

dismiss

will

be

granted.

1

Pursuant to Fed.R.Civ.P. 25(d), Thomas E. Price, the
Secretary of the United States Department of Health and Human
Services and the successor of Sylvia Burwell, the original named
Defendant, has been substituted automatically as Defendant.

Background2

I.

Plaintiff Electrical Welfare Trust Fund, Inc. (“Plaintiff”)
is a self-funded, self-administered group health plan.

Under

the Patient Protection and Affordable Care Act of 2010 (“ACA”),
all

individuals

must

insurance

coverage,

providers

cannot

maintain
U.S.C.

26

“minimum
5000A,

§

discriminate

against

essential”

and

health

individuals

health

insurance
with

pre-

existing medical conditions by denying them coverage, 42 U.S.C.
§

300gg-3.

As

a

result

of

these

policy

changes,

Congress

anticipated that the enrollment of a disproportionate number of
previously

uninsured,

high-risk

individuals

into

the

health

insurance market could cause premiums to rise for all insured
individuals.

To

stabilize

premiums

during

the

first

three

years, the ACA established the Transitional Reinsurance Program
(“TRP”).

See 42 U.S.C. § 18061(c)(1).

The TRP mandates that

all “health insurance issuers, and third party administrators on
behalf

of

group

health

plans,

.

.

.

make

payments

to

an

applicable reinsurance entity for any plan beginning in the 3year period beginning January 1, 2014.”

Id. § 18061(b)(1)(A).

The “reinsurance entities” then reallocate the money collected
to health insurance issuers that incur higher costs by covering
high-risk individuals.

Id. § 18061(b)(1)(B).

2

Unless otherwise noted, the facts outlined here are set
forth in the complaint and construed in the light most favorable
to Plaintiff.
2

Under

the

“issu[ing]

TRP

provisions,

regulations

the

setting

Secretary

standards

is

with

meeting

for

tasked

the

requirements . . . with respect to . . . the establishment of
the reinsurance and risk adjustment programs.”
18041(a)(1)(C).

42 U.S.C. §

Specifically, the Secretary has the authority

to determine the methodology for setting the amounts each health
insurance

issuer

must

contribute

under the reinsurance mandate.

to

the

reinsurance

Id. § 18061(b)(3)(A).

entities
Pursuant

to this authority, the Secretary issued a regulation defining a
“contributing entity” with respect to group health plans as: “a
self-insured group health plan . . . whether or not it uses a
third party administrator” for the 2014 benefit year; and “a
self-insured group health plan . . . that uses a third party
administrator” for the 2015 and 2016 benefit years.
153.20(2).

Therefore,

self-insured,

45 C.F.R. §

self-administered

group

health plans were subject to the reinsurance mandate and had to
contribute to the TRP for 2014, but not for 2015 and 2016.

Id.

In rulemaking comments, the Secretary explained this change in
status

for

such

plans

by

noting

that

the

statute

could

“reasonably be interpreted in more than one way with respect to
the applicability of [the reinsurance mandate] to self-insured,
self-administered

plans.”

Patient

Protection

and

Affordable

Care Act; HHS Notice of Benefit and Payment Parameters for 2015,
79 Fed. Reg. 13,773 (Mar. 11, 2014).
3

The Secretary stated that

the

“better

reading”

was

to

exclude

such

entities

from

the

reinsurance mandate, but that the government would include these
entities for the 2014 year “in order to avoid disruption to
contributing entities.”

Id.

Plaintiff is a self-funded, self-administered group health
plan that was subject to, and paid, the reinsurance mandate for
the 2014 benefit year.

(ECF No. 1 ¶ 20).

On June 17, 2016,

Plaintiff filed this tax refund suit on behalf of itself and the
putative

class

of

similarly

administered health plans.
the

Secretary’s

included

such

situated

(ECF No. 1).

interpretation

plans

among

of

those

self-funded,

self-

Plaintiff asserts that

the

statute

required

contributions for the benefit year 2014.

to

impermissibly

pay

reinsurance

It contends that the

ACA is unambiguous with respect to which entities are required
to abide by the reinsurance mandate and maintains that selffunded, self-administered group health plans are not among them.
The Government moved to dismiss the case for lack of subject
matter jurisdiction on November 28.

(ECF No. 18).

Plaintiff

responded in opposition (ECF No. 19), and the Government replied
(ECF No. 24).
II.

Standard of Review
The Government moves to dismiss for lack of subject matter

jurisdiction because sovereign immunity bars Plaintiff’s claims.
(ECF

No.

18).

Generally,

“questions
4

of

subject

matter

jurisdiction must be decided first, because they concern the
court’s very power to hear the case.”

Owens-Illinois, Inc. v.

Meade, 186 F.3d 435, 442 n.4 (4th Cir. 1999).

The party bringing

suit in federal court bears the burden of proving that subject
matter jurisdiction properly exists.
Co.,

166

F.3d

642,

647

(4th

Cir.

See Evans v. B.F. Perkins
1999).

In

a

Fed.R.Civ.P.

12(b)(1) motion, the court may consider evidence outside the
pleadings to help determine whether it has jurisdiction over the
case before it.

Richmond, Fredericksburg & Potomac R.R. Co. v.

United States, 945 F.2d 765, 768 (4th Cir. 1991); see also Evans,
166 F.3d at 647.

A court should grant a Rule 12(b)(1) motion

“only if the material jurisdictional facts are not in dispute
and the moving party is entitled to prevail as a matter of law.”
Richmond, Fredericksburg & Potomac R.R. Co., 945 F.2d at 768.
III. Analysis
A.
Waiver of Sovereign Immunity Under 28 U.S.C. §
1346(a)(1)
The doctrine of sovereign immunity precludes suit against
the United States, “‘save as it consents to be sued.’”

Frahm v.

United States, 492 F.3d 258, 262 (4th Cir. 2007) (quoting United
States v. Sherwood, 312 U.S. 584, 586 (1941)).

Congress has

consented to tax refund suits under 28 U.S.C. § 1346(a)(1) (the
“Tax

Refund

Statute”),

which

grants

federal

district

courts

jurisdiction over “civil action[s] against the United States for

5

the recovery of any internal-revenue tax alleged to have been
erroneously or illegally assessed or collected . . . or any sum
alleged

to

have

been

excessive

or

in

any

collected under the internal-revenue laws.”

manner

wrongfully

Plaintiff asserts

that the reinsurance mandate constitutes an “internal-revenue
tax” that was “erroneously or illegally assessed or collected”
from it in 2014.

(ECF No. 19, at 17).

Alternatively, Plaintiff

maintains that its reinsurance contributions meet the standard
in the “any sum” provision of the Tax Refund Statute.
29).

(Id. at

The Government argues that reinsurance contributions do

not qualify under either provision of the Tax Refund Statute.
1.

Internal-Revenue Tax

Plaintiff contends that the reinsurance mandate is a tax.
It argues that the applicable test in the United States Court of
Appeals for the Fourth Circuit comes from In re Leckie Smokeless
Coal Co., 99 F.3d 573 (4th Cir. 1996).

In Leckie, the court

adopted a four-part test to decide whether a government imposed
exaction was a tax for purposes of the Anti-Injunction Act, 26
U.S.C.

§

7421(a).

To

protect

the

government’s

ability

to

collect taxes without judicial delay and interference, the AntiInjunction
restraining
instead

Act

bars

the

requires

all

claims

brought

“for

the

assessment

or

collection

of

taxpayers

to

raise

objections

such

refund suits after the taxes have been paid.
6

any

purpose
tax,”
in

of
and
tax

Leckie, 99 F.3d at

584.

The court in Leckie determined whether the exaction in

question was a tax “by asking whether [the exaction] had each of
four features: ‘(a) An involuntary pecuniary burden, regardless
of name, laid upon individuals or property; (b) Imposed by or
under authority of the legislature; (c) For public purposes,
including the purposes of defraying expenses of government or
undertakings authorized by it; (d) Under the police or taxing
power of the state.’”

Id. at 583 (quoting United States v. City

of Huntington, W. Va., 999 F.2d 71, 73 nn.4-5 (4th Cir. 1993)).
In Pittston Co. v. United States, 199 F.3d 694, 702 (4th
Cir. 1999), the Fourth Circuit held that the same test applied
to determining whether an exaction fell under the Tax Refund
Statute.

Noting that “the very purpose of the [Anti-Injunction

Act] is ‘to allow the Federal Government to assess and collect
allegedly due taxes . . . and to compel taxpayers to raise their
objections to collected taxes in suits for refunds,’” the court
held that “a decision that a premium is a tax for the purposes
of the Anti-Injunction [Act] necessarily is a decision that an
objection to that assessment must be litigated in a tax refund
action” under the Tax Refund Statute.

Id. (quoting Leckie, 99

F.3d at 584).
Applying the test from Leckie, Plaintiff contends that its
reinsurance contributions are a tax because they are “(a) an
involuntary

pecuniary

burden,

laid
7

upon

Plaintiff

and

Class

members;

(b)

imposed

by

Congress;

(c)

for

public

purposes,

including . . . defraying health insurance coverage expenses;
(d) under the taxing power of Government.”

(ECF No. 19, at 21).

Plaintiff also argues generally that United States Supreme Court
precedent
bearing

makes
on

clear

whether

statutory purposes.”
the

“essential

an

Government

“congressional

exaction

of

an

labels

qualifies

(ECF No. 19, at 21).

character”

qualifies as a tax.
The

that

exaction

as

have
a

little

‘tax’

for

Instead, it posits,
governs

whether

it

(Id. at 22).3
argues

that

National

Federation

of

Independent Business v. Sebelius, 567 U.S. 519 (2012) (“NFIB”),
limits the applicability of the Leckie test here.
at 14-15).

(ECF No. 24,

In NFIB, the Supreme Court considered, inter alia,

whether the individual insurance mandate in the ACA, which was

3

Plaintiff also argues for the application of the approach
used by the district court in Ohio v. United States, 154
F.Supp.3d 621, 629 (S.D.Ohio 2016), aff’d, 849 F.3d 313 (6th Cir.
2017).
Although
the
Ohio
court
addressed
a
similar
jurisdictional challenge to the TRP, the trial court applied the
“broader view” of the term “internal-revenue tax” adopted by the
United States Court of Appeals for the Sixth Circuit originally
in Horizon Coal Corp. v. United States, 43 F.3d 234 (6th Cir.
1994).
Ohio v. United States, 154 F.Supp.3d at 629.
Both
Leckie and Pittston were decided by the Fourth Circuit after
Horizon Coal without adopting its analysis, and there is no
indication that any court in the Fourth Circuit has ever applied
that Sixth Circuit standard. More importantly, as discussed in
detail below, the Government here argues that both the Sixth and
Fourth Circuits’ approaches must be viewed in light of the
Supreme Court’s decision in National Federation of Independent
Business v. Sebelius, 567 U.S. 519 (2012), an argument neither
made to nor considered by the court in Ohio.
8

labeled a “penalty” instead of a “tax,” qualified as a tax under
the

Anti-Injunction

Act.

The

Court

emphasized

that,

as

“creatures of Congress’s own creation,” Congress is generally
free to choose how statutes relate to each other.

Id. at 544.

According to the Court, Congress’s decision not to label certain
exactions as taxes, especially in light of labelling several
other exactions as taxes elsewhere in the ACA, was an expression
of its intent as to how the individual mandate should relate to
other

statutory

provisions

Anti-Injunction Act.
that

considered

Id.

applicable

to

taxes,

such

as

the

whether

The Court thus rejected an approach
the

individual

mandate

“function[ed]

like a tax,” and held that Congress’s label as a “penalty” meant
that the Anti-Injunction Act did not apply.

Id. at 544-546.

Plaintiff counters that the decision in

NFIB

as to the

applicability of the Anti-Injunction Act is not determinative.
(ECF No. 19, at 28).

Plaintiff appears to be arguing that,

although “a decision that a premium is a tax for the purposes of
the

Anti–Injunction

[Act]

necessarily

is

a

decision

that

an

objection to that assessment must be litigated in a tax refund
action” under the Tax Refund Statute, Pittston Co., 199 F.3d at
702, a decision that a premium is not a tax for the purposes of
the

Anti-Injunction

Act

does

not

necessarily

mean

that

the

exaction does not qualify as a tax under the Tax Refund Statute
(ECF

No.

19,

at

28).

Plaintiff
9

emphasizes

that

the

Anti-

Injunction Act addresses the timing of the filing of a claim,
whereas the Tax Refund Statute addresses whether and where a
claim can be brought at all.

(Id.).

Plaintiff’s arguments ignore the reasoning in the Supreme
Court’s

opinion

in

NFIB.4

The

Court

made

clear

that,

when

Congress passed the ACA, it chose to label some exactions taxes
but to use a variety of other labels for other exactions.

The

Court held that Congress chose these words with purpose, and
that one of the purposes of choosing not to use the label “tax”
in the ACA was to avoid the statutory repercussions of that
label.

That analysis applies regardless of whether the Anti-

Injunction

Act

or

the

Tax

Refund

Statute

is

involved.

The

court’s holding that “[h]ow [two statutes] relate to each other
is up to Congress, and the best evidence of Congress’s intent is
the statutory text,” NFIB, 567 U.S. at 544, applies to both the
Anti-Injunction Act and the Tax Refund Statute.
4

In some cases, Plaintiff also ignores the direct effect of
NFIB. For example, it points out that the Government’s current
position is in conflict with its position at the district court
level in NFIB, where it asserted that individual mandate
plaintiffs could challenge the law in tax refund proceedings
after making their payments.
(ECF No. 19, at 28 (citing
Memorandum in Support of Defendants’ Motion to Dismiss at 34,
Florida ex rel. McCollum v. U.S. Dep’t of Health & Human Servs.,
No. 10-cv-00091, 2010 WL 2000518 (N.D.Fla. Apr. 8, 2010)).
It
does not bear on this case, however, that the Government
originally argued that the individual mandate penalties could be
blocked under the Anti-Injunction Act and raised subsequently
under the Tax Refund Statute.
The Supreme Court rejected that
argument, and the Government is correct to change its position
accordingly.
10

The Government’s NFIB argument is bolstered by two Fourth
Circuit decisions as to insurance mandates from the ACA.

In

Liberty University, Inc. v. Geithner, 671 F.3d 391, 404-06 (4th
Cir. 2011) (“Liberty I”), vacated, 133 S.Ct. 679 (2012), the
Fourth Circuit had found that the ACA’s individual insurance
mandate and employer insurance mandate were taxes, even though
they

were

primarily

labelled

payment,” respectively.

a

“penalty”

and

an

“assessable

The court held that the Anti-Injunction

Act thus stripped the court of jurisdiction to hear the case.
The court emphasized that the Supreme Court had “specifically
found an exaction’s label immaterial to the applicability of the
[Anti-Injunction Act],” id. at 404 (citing Lipke v. Lederer, 259
U.S. 557 (1922)), and cited a string of cases in which the Court
had “repeatedly instructed that congressional labels have little
bearing

on

whether

an

exaction

statutory purposes,” id. at 404.

qualifies

as

a

‘tax’

for

The Supreme Court vacated the

judgment in light of its decision in NFIB that the individual
mandate was not a tax for Anti-Injunction Act purposes.
S.Ct.

679

(2012).

On

remand,

the

Fourth

Circuit

133

reviewed

whether the employer mandate was a tax in light of NFIB and
found that the “Supreme Court made clear [in NFIB] that the AIA
does

not

apply

to

every

exaction

that

functions

as

a

tax.”

Liberty Univ., Inc. v. Lew, 733 F.3d 72, 87 (4th Cir. 2013)
(“Liberty II”).

It noted that “the Court in NFIB found it most
11

significant that Congress chose to describe the [exaction] as a
‘penalty’ rather than a ‘tax.’”

Id. at 87-88 (citing NFIB, 567

U.S.

Congress’s

at

543).

Focusing

on

labels,

determined that the employer mandate was not a tax.

the

court

Id. at 89.

Curiously, Plaintiff’s opposition, without citing to the
vacated

Liberty

I

opinion,

incorporates

its

language

and

citations nearly word for word to support its argument that the
“essential character” of the exaction overrides congressional
labels.

(Compare ECF No. 19, at 21-22, with Liberty I, 671 F.3d

at 404).

That analysis is no longer applicable after NFIB and

Liberty II.
Here, Congress labelled the reinsurance mandate a “payment”
and a “contribution.”
to

these

labels,

contributions
opposed

to

be

the

See 42 U.S.C. §§ 10861(b).

Congress
paid

IRS,

to

required

third-party

placed

oversight

that

In addition

these

reinsurance
of

the

reinsurance
entities

TRP

with

as
the

Secretary of Health and Human Services as opposed to the IRS or
the

Secretary

of

Treasury,

and

codified

these

provisions

in

Title 42 of the U.S. Code as opposed to the Internal Revenue
Code.5

Accordingly, the conclusion is inescapable that Congress

5

Given these other factors, it is questionable whether
Plaintiff’s arguments would have sufficed under the Liberty I
standard, which concluded only that “the term ‘tax’ in the
[Anti-Injunction Act] reaches any exaction imposed by the
[Internal Revenue] Code and assessed by the tax collector
12

did not intend for the reinsurance mandate to be considered an
internal

revenue

tax.

Jurisdiction

over

Plaintiff’s

claims

cannot be premised on the “internal revenue tax” provision of
the Tax Refund Statute.
2.

“Any Sum”

Plaintiff next argues that, even if the reinsurance mandate
is not a tax, it qualifies under the Tax Refund Statute’s “any
sum” provision.

(ECF No. 19, at 29-30).

As noted above, the

Tax Refund Statute also applies to “any sum alleged to have been
excessive

or

in

any

internal-revenue

laws.”

points

v.

to

Flora

manner
28

United

wrongfully
U.S.C.

States,

§
362

collected

1346(a)(1).
U.S.

145,

under

the

Plaintiff
149

(1960)

(“Flora II”), in which the Court held that the “tax,” “penalty,”
and “any sum” provisions should be read disjunctively, such that
“‘any sum,’ instead of being related to ‘any internal-revenue
tax’ and ‘any penalty,’ may refer to amounts which are neither
taxes

nor

penalties.”

Plaintiff

contends

that

“Congress

included the ‘any sum’ language to ensure a broad interpretation
of the statute.”

(ECF No. 19, at 30).6

The Tax Refund Statute,

however, refers to “any sum . . . collected under the internalpursuant to his general revenue authority.”
at 406.
6

Liberty I, 671 F.3d

Plaintiff’s opposition appears to quote Flora II for its
language
as
to
Congress’s
intent
to
ensure
a
“broad
interpretation” of the “any sum” provision, but no such language
can be found in the opinion.
13

revenue laws,” 28 U.S.C. § 1346(a)(1) (emphasis added), and the
Supreme Court’s decision in Flora II held only that the “any
sum” provision reached sums related to taxes, such as partial
payments of income taxes and interest on tax payments.
Flora II, 362 U.S. at 149-150.

See

Plaintiff cites just one other

case applying the “any sum” provision, which similarly related
to interest on income taxes levied under the Internal Revenue
Code and collected by the IRS.

See E.W. Scripps Co. v. United

States, 420 F.3d 589, 590-91, 596-97 (6th Cir. 2005).

A review

of the limited number of cases applying the “any sum” provision
shows that the language has only been used to reach payments
that could be described as “incidental to the recovery of an
internal revenue tax,” IRS, Tech. Advice Memorandum 200446021
(2004), 2004 WL 2567715 (analyzing the legislative history of
the “any sum” provision from Flora II and other cases), revoked,
IRS, Tech. Advice Memorandum 200750018 (2007), 2007 WL 4358501.
See

United

States

v.

Williams,

514

U.S.

527,

532

(1995)

(applying “any sum” provision to a payment made to the IRS to
remove a tax lien on a house for tax deficiencies accrued by
plaintiff’s ex-husband); Brennan v. Sw. Airlines Co., 134 F.3d
1405, 1410 (9th Cir. 1998) (applying “any sum” language in 26
U.S.C. § 7422 to overpayments of excise taxes collected by an
airline and paid to the IRS);7 Strategic Hous. Fin. Corp. v.
7

The Supreme Court has held that the mirror language in the
14

United States, 608 F.3d 1317, 1326-27 (Fed.Cl. 2010) (applying
“any sum” provision in § 7422 to arbitrage rebates under the
Internal Revenue Code); J.O. Johnson, Inc. v. United States, 476
F.2d 1337, 1341 (Cl.Ct. 1973) (determining that the “any sum”
provision

in

§

7422

included

the

assessment

for

accumulated

earnings tax); see also Reilly v. United States, No. IP-87-629C, 1987 WL 49366, at *3 (S.D.Ind Dec. 30, 1987) (explaining that
the

analysis

in

Flora

II

“does

not

give

rise

to

.

.

expansive interpretation” of the “any sum” provision).

.

an

Because

exactions under the reinsurance mandate are not related to an
internal

revenue

inapplicable.
jurisdiction

tax,

the

“any
there

Therefore,
over

sum”
is

Plaintiff’s

claims

provision
no

under

is

also

subject

matter

the

Refund

Tax

Statute’s waiver of sovereign immunity.
B.

In
exists

Waiver of Sovereign Immunity Under the Administrative
Procedure Act
the
under

alternative,
the

Plaintiff

waiver

of

asserts

sovereign

that

jurisdiction

immunity

Administrative Procedure Act (“APA”), 5 U.S.C. § 702.
19, at 36).

in

the

(ECF No.

The APA provides that “[a] person suffering legal

Tax Refund Statute and § 7422 are meant to be coextensive.
Flora v. United States, 357 U.S. 63, 65 (1958) (“Flora I”); see
also United States v. Clintwood Elkhorn Min. Co., 553 U.S. 1, 4
(2008) (noting that the requirements of § 7742 must be met
before a plaintiff can bring an action under the Tax Refund
Statute). But see Horizon Coal, 43 F.3d at 240 (applying
different definitions of an “internal revenue tax” for purposes
of the Tax Refund Statute and § 7422).
15

wrong

because

of

agency

action,

or

adversely

affected

or

aggrieved by agency action within the meaning of a relevant
statute, is entitled to judicial review thereof.”
702.

5 U.S.C. §

This waiver of sovereign immunity is limited, however, to

actions “seek[ing] relief other than money damages.”

Id.

The

Government argues that the APA’s waiver of sovereign immunity
does not apply because Plaintiff seeks money damages here.

(ECF

No. 18-1, at 20).
Plaintiff does not dispute that the damages it seeks are
money damages as defined in the APA.
that

its

claim

for

declaratory

Instead, Plaintiff argues

relief

from

the

reinsurance

payments on behalf of those class members who have yet to make
the payments satisfies the APA requirement.
36).

Even

if

declaratory

Plaintiff

relief

met

could

the

APA

show

that

standard,

(ECF No. 19, at
such
this

a

claim

case

for

must

be

dismissed because Plaintiff itself could not bring such a claim.
Plaintiff has submitted its reinsurance payments and now seeks
damages

for

established

the
that

fees

it

courts

has

already

“analyze

paid.

standing

It

is

based

well

on

the

allegations of personal injury made by the named plaintiffs.”
Beck v. McDonald, 848 F.3d 262, 269 (4th Cir. 2017) (citing Doe
v. Obama, 631 F.3d 157, 160 (4th Cir. 2011)).
to

allege

merely

“that

injury

has

been

It is insufficient
suffered

by

other,

unidentified members of the class to which they belong and which
16

they

purport

to

represent.”

Doe

v.

Obama,

631

F.3d

at

160

(quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 40
n.20 (1976)).

Accordingly, Plaintiff has not alleged a claim

over which subject matter jurisdiction would exist under the
APA’s waiver of sovereign immunity.
Plaintiff cannot show that any waiver of sovereign immunity
applies

to

its

claims.

Therefore,

the

court

has

no

jurisdiction, and the Government’s motion to dismiss will be
granted.8
IV.

Conclusion
For the foregoing reasons, the motion to dismiss filed by

the Government will be granted.

A separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge
8

As noted by the Government, jurisdiction over Plaintiff’s
claims may lie in the United States Court of Federal Claims,
pursuant to the Tucker Act, 28 U.S.C. § 1491, which provides:
The United States Court of Federal
Claims shall have jurisdiction to render
judgment upon any claim against the United
States founded either upon the Constitution,
or any Act of Congress or any regulation of
an executive department, or upon any express
or implied contract with the United States,
or for liquidated or unliquidated damages in
cases not sounding in tort.
See also, Batsche v. Burwell, 210 F.Supp.3d 1130, 1136 (D.Minn.
2016).
The parties have not sought a transfer to that court,
see 28 U.S.C. § 1631, and the court declines to consider that
alternative sua sponte.
17