     12-2523-cv
     Connecticut Association of Health Care Facilities, Inc. v. Bremby, et al.

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 28th day of March, two thousand thirteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8
 9                    JOSÉ A. CABRANES,
10                    RICHARD C. WESLEY,
11                                  Circuit Judges.
12
13       - - - - - - - - - - - - - - - - - - - -X
14       CONNECTICUT ASSOCIATION OF HEALTH
15       CARE FACILITIES, INC.,
16                Plaintiff-Appellant,
17
18                    -v.-                                               12-2523-cv
19
20       RODERICK L. BREMBY, Commissioner of
21       Social Services,
22                Defendant-Appellee,
23




                                                  1
 1   DANNEL P. MALLOY,* Governor, State of
 2   Connecticut,
 3            Defendant.
 4   - - - - - - - - - - - - - - - - - - - -X
 5
 6   FOR APPELLANT:             Malcolm J. Harkins, III, (James
 7                              F. Segroves, Proskauer Rose LLP,
 8                              Washington, D.C., Michael J.
 9                              Donnelly, Louis B. Todisco,
10                              Murtha Cullina LLP, Hartford,
11                              Connecticut, on the brief),
12                              Proskauer Rose LLP, Washington,
13                              D.C.
14
15   FOR APPELLEE:              Caroline M. Brown, (Philip J.
16                              Peisch, on the brief), Covington
17                              & Burling LLP, Washington, D.C.
18
19        Appeal from a judgment of the United States District
20   Court for the District of Connecticut (Dorsey, J.).**
21
22        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
23   AND DECREED that the judgment of the district court be
24   AFFIRMED.
25
26        The Connecticut Association of Health Care Facilities,
27   Inc. (the “Association”) appeals from the judgment of the
28   United States District Court for the District of Connecticut
29   (Dorsey, J.), dismissing the Association’s Taking Clause
30   claim asserted in Count VI of its Complaint. In Count VI,
31   the Association alleges a per se taking of its members’
32   property--space in nursing homes--under Connecticut’s
33   Medicaid system. The Association alleges that Connecticut
34   law prohibits discharging Medicaid patients from nursing
35   homes and impairs, delays, or burdens the ability of the
36   nursing homes to cease operations. We assume the parties’
37   familiarity with the underlying facts, the procedural
38   history, and the issues presented for review.
39

         *
              The Clerk of Court is directed to amend the
     caption as reflected above.
         **
              Judge Dorsey passed away on January 20, 2012,
     after issuing the ruling at issue in this case; the case was
     thereafter reassigned to Judge Haight.
                                  2
 1        “We review de novo a district court’s dismissal of a
 2   complaint pursuant to Rule 12(b)(6), construing the
 3   complaint liberally, accepting all factual allegations in
 4   the complaint as true, and drawing all reasonable inferences
 5   in the plaintiff’s favor.” Chambers v. Time Warner, Inc.,
 6   282 F.3d 147, 152 (2d Cir. 2002).
 7
 8        1.  Yee v. City of Escondido, 503 U.S. 519 (1992),
 9   forecloses the Association’s Taking Clause claim. As in
10   Yee, the nursing homes here voluntarily accepted nursing
11   home patients as customers. See id. at 527. Under Yee, a
12   state law prohibiting the discharge or eviction of those
13   customers is not a taking under the Fifth Amendment,
14   especially since the nursing homes are free to discharge
15   Medicaid patients by ceasing operations as nursing homes.
16   See id. at 528; see also Franklin Mem’l Hosp. v. Harvey, 575
17   F.3d 121, 126 (1st Cir. 2009) (“Here too, FMH is not
18   required to serve low income patients; it may choose to stop
19   using its property as a hospital.” (emphasis added)).
20
21        2.  The Association argues that nursing homes are, in
22   effect, prohibited from ceasing operations as nursing homes
23   because Connecticut law requires approval of the
24   Commissioner of Social Services before a nursing home may
25   cease operations. See Conn. Gen. Stat. § 17b-352(b) & (e).
26   The plaintiffs in Yee made an almost identical argument,
27   which the Yee Court rejected:
28
29            Petitioners suggest that the statutory procedure
30            for changing the use of a mobile home park is in
31            practice “a kind of gauntlet,” in that they are
32            not in fact free to change the use of their land.
33            Because petitioners do not claim to have run that
34            gauntlet, however, this case provides no occasion
35            to consider how the procedure has been applied to
36            petitioners’ property, and we accordingly confine
37            ourselves to the face of the statute. A different
38            case would be presented were the statute, on its
39            face or as applied, to compel a landowner over
40            objection to rent his property or to refrain in
41            perpetuity from terminating a tenancy.
42
43   Yee, 503 U.S. at 528 (citations omitted). The Association’s
44   Complaint does not allege that any of its member nursing
45   homes have tried unsuccessfully to cease operating. Because
46   none of the member nursing homes “have run th[e] gauntlet,”
47   Yee controls, and the Association’s claim fails.

                                  3
1        For the foregoing reasons, and finding no merit in the
2   Association’s other arguments, we hereby AFFIRM the judgment
3   of the district court.
4
5                              FOR THE COURT:
6                              CATHERINE O’HAGAN WOLFE, CLERK
7




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