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                                                                [PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 13-13917
                        ________________________

                  D.C. Docket No. 3:12-cv-01232-HES-JRK



BAKER COUNTY MEDICAL SERVICES, INC.,
Ed Fraser Memorial Hospital,

                                               Plaintiff - Appellant,

versus

U.S. ATTORNEY GENERAL,
DIRECTOR, U.S. DEPARTMENT OF HOMELAND SECURITY,
U.S. IMMIGRATION & CUSTOMS ENFORCEMENT, OFFICE OF
DETENTION AND REMOVAL,
U.S. MARSHAL WILLIAM B. BERGER, SR.,
United States Marshals Service, Prisoner & Operations Division,
Programs and Assistance Branch,

                                               Defendants - Appellees.

                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                       ________________________

                              (August 14, 2014)
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Before JORDAN, Circuit Judge, and RYSKAMP * and BERMAN,** District

Judges.

JORDAN, Circuit Judge:

       The federal government bears a constitutional “obligation to provide medical

care for those whom it is punishing by incarceration.” Estelle v. Gamble, 429 U.S.

97, 103 (1976). Pursuant to 18 U.S.C. § 4006(b)(1), Congress has elected to

impose the Medicare rate as full compensation for medical services rendered to

federal detainees.

       Baker County Medical Services, d.b.a. Ed Fraser Memorial Hospital – a

small, rural hospital in Baker County, Florida – sued various federal agencies and

officials in federal district court, seeking a declaratory judgment that § 4006(b)(1)

is unconstitutional as applied. 1 This appeal requires us to decide whether the

Hospital can challenge this compensation scheme as an unconstitutional taking

under the Fifth Amendment, even though it has voluntarily opted into the Medicare

program and is, as a result, required to provide emergency services to federal

*
  Honorable Kenneth L. Ryskamp, United States District Judge for the Southern District of
Florida, sitting by designation.
**
 Honorable Richard M. Berman, United States District Judge for the Southern District of New
York, sitting by designation.
1
  The Hospital also sought to recover in quantum meruit for the difference between its actual
costs for providing emergency care to federal detainees and the amount it was reimbursed at the
Medicare rate for such care since 2009. The district court dismissed the quantum meruit count as
barred by sovereign immunity, and the Hospital concedes that this claim fails as a matter of law.

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detainees. With benefit of oral argument, and for the reasons that follow, we

conclude that the Hospital may not bring such a challenge, and affirm the district

court’s dismissal of the Hospital’s declaratory judgment claim.

                                          I

      We review the grant of a motion to dismiss de novo. See Miyahira v.

Vitacost.com, Inc., 715 F.3d 1257, 1265 (11th Cir. 2013).            Our review of

constitutional questions is likewise plenary. See United States v. Paige, 604 F.3d

1268, 1274 (11th Cir. 2010).

      In applying the Rule 12(b)(6) standard, we construe the complaint in the

light most favorable to the Hospital, accepting all well-pleaded factual allegations

as true. See Miyahira, 715 F.3d at 1265. “To survive a motion to dismiss, a

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

      The Hospital is a 25-bed facility that houses and operates the only

emergency room in Baker County. As a Medicare provider, it must accept the

Medicare payment rate as full compensation for treatment for Medicare

participants. Although the government has contracted with a provider to provide

on-site medical services for federal detainees housed in a local detention facility,

the Hospital has entered into no similar contract with the government to render off-

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site emergency care to federal detainees, who do not qualify as Medicare

participants.    See 42 C.F.R. § 411.4.        The Hospital nevertheless does afford

emergency services to such individuals, in keeping with its obligation to provide

emergency medical treatment to all patients irrespective of their ability to pay

under the Emergency Medical Treatment and Active Labor Act ("EMTALA"), 42

U.S.C. § 1395dd, and Florida law.

      The Hospital sought a declaratory judgment that 18 U.S.C. § 4006(b)(1), as

applied, amounts to an unconstitutional taking. According to the Hospital, it is

forced to render emergency medical care to federal detainees but its compensation

for such treatment is limited to the Medicare rate, an amount less than its actual

costs. The district court dismissed the Hospital’s complaint with prejudice, ruling

that no taking occurred because the Hospital is under no general obligation to

provide emergency treatment to federal detainees. The district court reasoned that

the Hospital’s only putative obligation to provide such treatment under federal law

stemmed from voluntary participation in Medicare and from EMTALA, and that

did not create the requisite legal compulsion to constitute a taking. The Hospital

appeals.

                                          II

      Under the Takings Clause of the Fifth Amendment, “private property” shall

not “be taken for public use, without just compensation.” U.S. Const., amend. V.

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Although “[t]he paradigmatic taking requiring just compensation is a direct

government appropriation or physical invasion of private property,” the Supreme

Court has recognized that “government regulation of private property may, in some

instances, be so onerous that its effect is tantamount to a direct appropriation or

ouster” so as to effect a regulatory taking. See Lingle v. Chevron U.S.A. Inc., 544

U.S. 528, 537 (2005).

      Even so, a long line of cases instructs that no taking occurs where a person

or entity voluntarily participates in a regulated program or activity. We have said

that “[i]t is well established that government price regulation does not constitute a

taking of property where the regulated group is not required to participate in the

regulated industry.” Whitney v. Heckler, 780 F.2d 963, 972 (11th Cir. 1986). See

also Yee v. City of Escondido, Cal., 503 U.S. 519, 527 (1992) (“the Takings Clause

requires compensation if the government authorizes a compelled physical invasion

of property”); Franklin Mem. Hosp. v. Harvey, 575 F.3d 121, 129 (1st Cir. 2009)

(“Of course, where a property owner voluntarily participates in a regulated

program, there can be no unconstitutional taking.”); Garelick v. Sullivan, 987 F.2d

913, 916 (2d Cir. 1993) (“[W]here a service provider voluntarily participates in a

price-regulated program or activity, there is no legal compulsion to provide service

and thus there can be no taking.”); Burditt v. U.S. Dept. of Health and Human

Servs., 934 F.2d 1362, 1376 (5th Cir. 1991) (holding that physician could not

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challenge imposition of a penalty for violation of EMTALA under Takings Clause

because, among other things, he voluntarily accepted “responsibility to facilitate a

hospital’s compliance with EMTALA”); Minn. Ass'n of Health Care Facilities,

Inc. v. Minn. Dep’t of Pub. Welfare, 742 F.2d 442, 446 (8th Cir. 1984) (finding no

taking because “Minnesota nursing homes . . . have freedom to decide whether to

remain in business and thus subject themselves voluntarily to the limits imposed by

Minnesota on the return they obtain from investment of their assets in nursing

home operation”); St. Francis Hosp. Ctr. v. Heckler, 714 F.2d 872, 884 (7th Cir.

1983) (holding that diminished market value does not constitute a taking where

plaintiffs “retain full rights and control over their net investment”).

      The Hospital does not dispute these general legal principles. Instead, as it

succinctly frames its argument, the Hospital maintains that “because 18 U.S.C. §

4006 is not contained in, cross-referenced by, or itself ever referenced in, the

Medicare or EMTALA statutes, [its] voluntary participation in both of those

federal programs does not, expressly or by default, mean that [it] must agree to

accept less than cost reimbursement for the treatment of federal detainees.”

Appellant’s Reply Br. at 1. To determine whether the Hospital is correct, we first

consider the statutory framework of Medicare, Florida law regulating emergency

treatment, and § 4006(b)(1), and then turn to Takings Clause precedent.



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                                           A

      Medicare is a federally subsidized medical insurance program for persons

over the age of 65 or recipients of social security disability benefits. See 42 U.S.C.

§ 1395 et seq. The program is comprised of two sections. Part A focuses on

providing insurance and reimbursement for the costs of hospital, post-hospital,

home health, and hospice care. See 42 U.S.C. §§ 1395c-1395i-4. Part B is a

voluntary supplemental insurance program for Medicare beneficiaries who pay

premiums for additional insurance. See 42 U.S.C. § 1395j.

      As a condition of participating in and receiving payments from Medicare, a

hospital must also opt into EMTALA.            See 42 U.S.C. § 1395cc(a)(1)(I)(i).

EMTALA requires hospitals with emergency departments to provide a medical

screening to anyone who enters an emergency room and requests an examination

for a medical condition. See 42 U.S.C. § 1395dd(a). If the hospital determines

that the patient has an emergency medical condition, it must either provide medical

services to stabilize the condition or transfer the patient to another medical facility.

See 42 U.S.C. § 1395dd(b)(1)(a)-(b). The hospital must meet these obligations

without regard to the patient’s ability to pay. See 42 U.S.C. § 1395dd(h).

      In keeping with the Florida Legislature’s intent “that emergency services

and care be provided by hospitals and physicians to every person in need of such


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care,” Fla. Stat. § 395.1041(1), Florida law imposes similar obligations of its own.

One statute, for example, requires every general hospital with an emergency

department to provide emergency care for any emergency condition when “[a]ny

person requests emergency services and care,” regardless of ability to pay. See

Fla. Stat. § 395.1041(3)(a)(1), (f). In addition, “[a] person may not be denied

treatment for any emergency medical condition that will deteriorate from a failure

to provide such treatment at any general hospital licensed under [C]hapter 395 [of

the Florida Statutes] . . . .” Fla. Stat. § 401.45(1)(b).

                                            B

      Neither Medicare nor EMTALA establishes the reimbursement rate for

emergency services provided to federal detainees.           Congress instead chose to

codify such a compensation scheme under 18 U.S.C. § 4006(b)(1), which provides

that “[p]ayment for costs incurred for the provision of health care items and

services for individuals in the custody of the United States Marshals Service, the

Federal Bureau of Investigation and the Department of Homeland Security shall be

the amount billed, not to exceed the amount that would be paid for the provision of

similar health care items and services under the Medicare program . . . .”




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       Notably, although it sets a maximum reimbursement rate for the treatment of

federal detainees, § 4006 includes no underlying requirement that hospitals provide

such treatment in the first place. Nor is § 4006 cross-referenced in Medicare. 2

       The only other federal authority to which the parties point that mandates a

hospital’s treatment of federal detainees is EMTALA, which, as noted above,

requires participating hospitals to provide care to anyone who visits an emergency

room. Hence, although the Hospital is correct that neither Medicare nor EMTALA

expressly incorporates the reimbursement scheme codified in § 4006(b)(1), these

acts are not wholly removed from one another; hospitals which undertake the

obligation to treat federal detainees by opting into Medicare and EMTALA are

governed by the reimbursement rate separately set in § 4006(b)(1).

                                             C

       Because opting into EMTALA has committed the Hospital to treat all

emergency patients, including federal detainees, we must decide whether

voluntarily providing such care precludes the Hospital from challenging as a taking

the rate at which it is compensated under § 4006(b)(1). We conclude that it does.

       In Bowles v. Willingham, 321 U.S. 503 (1944), the Supreme Court

annunciated the principle that voluntary participation in a regulated program


2
  Indeed, § 4006 is codified in Title 18 of the U.S. Code, which regulates crimes and criminal
procedure.
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defeats a takings clause challenge. In that case, the Court analyzed a constitutional

challenge to a wartime federal rent control statute that resulted in a reduction in

property value. The Court held that the statute did not effect a taking, reasoning

that it did not compel landlords to offer their apartments for rent, and recognizing

that “price control, the same as other forms of regulation, may reduce the value of

the property regulated.” Id. at 517-18.

      Four decades later, we applied this rule to the regulation of Medicare

reimbursement in Whitney.      In that case, a group of physicians challenged a

temporary statutory freeze on fees charged to Medicare patients as an

unconstitutional taking. Underscoring that the physicians were “not required to

treat Medicare patients,” and observing that “the fact that Medicare patients

comprise a substantial percentage of their practices does not render their

participation [in Medicare] ‘involuntary,’” we held that the freeze did not

constitute a taking. See 780 F.2d at 972 & n.12.

      Our sister circuits have come to similar conclusions in considering Takings

Clause challenges to Medicare and Medicaid price regulation schemes. We find

their decisions instructive.


        In Garelick, for instance, the Second Circuit ruled that certain limitations

on permissible charges under Medicare Part B did not amount to a taking.


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Analogizing between the predicaments of the anesthesiologist plaintiffs in that case

and the landlords in Bowles, the Second Circuit concluded that the challenged

provisions “do not require anesthesiologists, or any other physicians, to provide

services to Medicare beneficiaries,” but instead “simply limit the amounts [the

plaintiffs] may charge those Medicare beneficiaries whom they choose to serve.”

987 F.2d at 916. The anesthesiologists’ argument that New York state law created

the requisite legal compulsion by forcing them to treat all patients, including

Medicare beneficiaries, did not change the outcome, as such a theory hinged on the

notion that it was the state, which was not a party in the case, “that indirectly

compel[led] anesthesiologists to treat Medicare patients and thus submit to price

regulations, not the federal government.” Id. The Second Circuit also concluded

that the anesthesiologists’ ethical duty to treat Medicare patients did not render

such treatment involuntary, reasoning that “such self-imposed requirements do not

constitute the kind of governmental compulsion that may give rise to a taking.” Id.

at 917-18.


      The Eighth Circuit reached an analogous result in analyzing a takings

challenge to a Minnesota statute conditioning nursing homes’ participation in the

state’s Medicaid program on acceptance of limits on rates charged to certain

residents. See Minn. Ass'n of Health Care Facilities, 742 F.2d at 446. Although it

recognized “the strong financial inducement to participate in Medicaid,” the Eighth

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Circuit concluded that “a nursing home's decision to do so is nonetheless

voluntary,” a fact that “forecloses the possibility that the statute could result in an

imposed taking of private property which would give rise to the constitutional right

of just compensation[.]” Id. It declined the nursing homes’ invitation to apply

cases analyzing takings in the context of public utility rates, reasoning that, unlike

public utilities, nursing homes “have freedom to decide whether to remain in

business and thus subject themselves voluntarily to the limits imposed by [the

state] on the return they obtain from investment of their assets in nursing home

operation.” Id.

                                          D

      For the same reason the landlords in Bowles and the plaintiffs who contested

Medicare and Medicaid payment schemes in its wake could not prevail, the

Hospital’s takings challenge to the reimbursement rate in § 4006(b)(1) fails. Like

those plaintiffs, the Hospital seeks to challenge its rate of compensation in a

regulated industry for an obligation it voluntarily undertook (namely, providing

emergency treatment to federal detainees) when it opted into Medicare and became

subject to EMTALA.        See Whitney, 780 F.2d at 972 (holding that no taking

occurred because physicians were “not required to treat Medicare patients”).




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      The Hospital attempts to distinguish Whitney and the other post-Bowles

cases discussed above on the ground that they addressed legal compulsion in the

context of Medicare or Medicaid, rather than compulsion under a separate statute

regulating reimbursement for treatment of federal detainees.         But we see no

meaningful difference in the Fifth Amendment sense. Just as physicians who

voluntarily treat Medicare beneficiaries cannot establish the legal compulsion

necessary to challenge Medicare reimbursement rates as a taking, so too is the

Hospital precluded from challenging the rate at which it is compensated for its

voluntary treatment of federal detainees, a regulated industry in which the Hospital

as a “regulated group is not required to participate.” Whitney, 780 F.2d at 972.

      The Hospital also disputes the notion that its participation in Medicare and

EMTALA, and by extension its treatment of federal detainees, is truly voluntary,

but its arguments do not change our analysis. The Hospital maintains that, even if

it were to withdraw from Medicare and EMTALA, it would have no practical

choice but to continue treating federal detainees who require emergency services

because Florida state law compels it to treat everyone who enters its emergency

room. But the Hospital has neither named the state as a defendant nor challenged

the constitutionality of the relevant Florida statutes, and hence cannot lay

“indirect” compulsion on the part of the state at the feet of the federal government.

See Garelick, 987 F.2d at 916.

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Although the Hospital contends that opting out of Medicare would amount to a

grave financial setback, “economic hardship is not equivalent to legal compulsion

for purposes of takings analysis.” Id. at 917. See also Minn. Ass'n of Health Care

Facilities, 742 F.2d at 446 (holding that a “strong financial inducement to

participate” in a regulated program does not render such participation involuntary).

This contention, therefore, does not carry the day.

       Finally, the Hospital points out that its withdrawal from Medicare would

leave Medicare participants with no hospital in Baker County from which they

could receive emergency care.             This grim prospect provides a sympathetic

backdrop for the Hospital’s takings challenge and, if it came to pass, would result

in hardship to Medicare participants in Baker County. Yet it does not diminish the

underlying voluntariness of the Hospital’s participation in Medicare, as “the fact

that practicalities may in some cases dictate participation [in Medicare] does not

make participation involuntary.” St. Francis Hosp. Ctr. v. Heckler, 714 F.2d 872,

875 (7th Cir. 1983).3

                                              III

       We recognize the financial difficulties and perceived inequity that may come

with shortfalls in a rural hospital’s reimbursement for costs associated with


       3
         As counsel for the Hospital acknowledged at oral argument, the fact that the Hospital is
the only one of its kind in Baker County does not affect the merits of its Fifth Amendment claim.
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providing emergency treatment to federal detainees, but conclude that the Takings

Clause of the Fifth Amendment is not the proper vehicle for altering this harsh

reality. As is so often the case, the Hospital’s most effective remedy may lie with

Congress rather than the courts.


      The district court’s dismissal of the Hospital’s declaratory judgment action

is affirmed.


      AFFIRMED.




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