       In the United States Court of Federal Claims
                                       No. 17-97C

                                (Filed: March 24, 2017)


************************************ *
                                     *
MOLINA HEALTHCARE OF                 *
CALIFORNIA, INC., et al.,            *
                                     *            Patient Protection and Affordable Care
                     Plaintiffs,     *            Act § 1342; Risk Corridors; Motion for
                                     *            Partial Summary Judgment; Request for
v.                                   *            Stay; Impact of Similar Cases Pending
                                     *            Appeal or Judgment; Briefing Schedule.
THE UNITED STATES,                   *
                                     *
                     Defendant.      *
                                     *
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Lawrence S. Sher, with whom were Kyle R. Bahr and Conor M. Shaffer, Reed Smith LLP,
Washington, D.C., for Plaintiffs.

Charles E. Canter, Senior Trial Counsel, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice, Washington, D.C., for Defendant.

                                PROCEDURAL ORDER

WHEELER, Judge.

        On March 14, 2017, Plaintiffs, the Molina Healthcare companies, filed a motion for
partial summary judgment seeking payments due from the United States under the Patient
Protection and Affordable Care Act’s risk corridor program. Pub. L. No. 111-148, 124
Stat. 119 (2010). According to Defendant, there are currently 23 active cases before this
Court seeking payments under the risk corridor program. Two of these cases have been
completed to final judgment, and one is on appeal in the U.S. Court of Appeals for the
Federal Circuit. Land of Lincoln Mutual Health Ins. Co. v. United States, 129 Fed. Cl. 81
(2016) (ruling for the Government, appeal pending); Moda Health Plan, Inc. v. United
States, 130 Fed. Cl. 436 (2017) (ruling for the plaintiff, appeal time expires on May 5,
2017).
       Molina’s motion for partial summary judgment relies heavily on this Court’s
decision in Moda Health. The parties agree that all 23 of the risk corridor cases are based
upon similar if not identical facts, and that they all present the same issues of law (albeit
with different theories of recovery advanced in some cases). The Government’s response
to Molina’s motion is due on April 14, 2017.

        After receiving Molina’s summary judgment brief, the Court sua sponte scheduled
a conference at the National Courts Building to be held on March 23, 2017. The Court, in
the interest of judicial efficiency, wanted to explore the possibility of expediting this case
to conclusion without repeating arguments already addressed in Moda Health. The Court
expressed to the parties that it was not interested in receiving the same arguments
previously ruled upon, and that time and effort could be saved by focusing only upon new
arguments that the parties wished to present. The Court did not want to see briefing in this
case become essentially a motion for reconsideration of the Moda Health decision.

        At the March 23, 2017 conference, Defendant’s counsel urged the Court to invoke
a stay of proceedings pending the Federal Circuit’s review of Land of Lincoln, and
potentially of Moda Health if the Government elects to appeal that decision. In the
alternative, due to the presence of a heavy workload in the other risk corridor cases, the
Government requested an enlargement of time until May 5, 2017 to file its response to
Molina’s motion for partial summary judgment. The Government rightly emphasized that
appellate review in the Federal Circuit, and potentially in the U.S. Supreme Court, of Land
of Lincoln, Moda Health, or any other appealed decisions from this Court, likely will
resolve all of the risk corridor cases. In response, Molina opposed a stay of proceedings,
arguing that as a plaintiff in this Court it is entitled to pursue its claims to judgment, despite
the pendency of any appeals in the Federal Circuit. Molina reasons that, if it is willing to
incur the necessary resources of going forward, the Court should not frustrate its efforts to
obtain a judgment by entering a stay. In addition, Molina asks that briefing in this case be
limited only to new issues not addressed in Moda Health. The Government opposed any
limitation on the contents of its briefing, asserting that the Government is entitled to
establish a record for any appeal.

        Given Molina’s opposition, the Court declines to issue a stay of proceedings in this
case. Molina, like all plaintiffs, is entitled to move forward with a claim properly filed in
this Court. The existence and status of other risk corridor cases should not impede Molina’s
ability to pursue relief. Similarly, the existence and status of other risk corridor cases
should not limit the Government’s ability to oppose Molina’s motion for partial summary
judgment and create an appropriate record in this case. Accordingly, the Court will not
impose any limitations on the contents of briefs. However, due to the Government’s
familiarity with the issues presented and the ample size of the legal staff devoted to these



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cases, the Court will restrict the Government to a fourteen-day time extension to file its
response. The Government’s response is due on or before April 28, 2017.

      IT IS SO ORDERED.

                                                       s/ Thomas C. Wheeler
                                                       THOMAS C. WHEELER
                                                       Judge




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