Blue Cross v. United States

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
BLUE CROSS AND BLUE SHIELD OF KANSAS
CITY WELFARE BENEFIT PLAN, LOUISIANA
HEALTH SERVICE & INDEMNITY COMPANY
WELFARE BENEFIT PLAN, HOSPITAL AND
MEDICAL PLAN FOR BLUECROSS BLUESHIELD
OF SC, THE CAREFIRST FLEXIBLE BENEFITS
PLAN, COOK GROUP HEALTH PLAN, LESTER E.
COX MEDICAL CENTER WELFARE BENEFIT
GROUP INSURANCE PLAN, HUMANA BENEFIT
PLANS, HYATT CORPORATION WELFARE PLAN,
UNITEDHEALTH GROUP EMPLOYEE HEALTH
BENEFIT PLAN, HEALTH CARE SERVICE
CORPORATION MASTER FLEXIBLE BENFIT
PLAN, HEALTHCARE SERVICE CORPORATION
EMPLOYEES WELFARE PLAN, AETNA INC.
MEDICAL DENTAL BENEFIT PLAN,
UNITEDHEALTH GROUP POST-EMPLOYMENT
MEDICAL PLAN, THE BOARD OF TRUSTEES OF
THE CARPENTERS HEALTH AND WELFARE
TRUST FUND FOR CALIFORNIA, THE
CARPENTERS HEALTH AND WELFARE TRUST
FUND FOR CALIFORNIA,
Plaintiffs-Appellants
v.
UNITED STATES,
Defendant-Appellee
______________________
Case: 24-2317 Document: 62 Page: 1 Filed: 07/17/2026

-- 1 of 13 --

BLUE CROSS AND BLUE SHIELD OF KANSAS CITY WELFARE v. US 2
2024-2317, 2025-1027
______________________
Appeals from the United States Court of Federal
Claims in Nos. 1:23-cv-00641-EMR, 1:23-cv-00642-EMR,
1:23-cv-00643-EMR, 1:23-cv-00644-EMR, 1:23-cv-00645-
EMR, 1:23-cv-00647-EMR, 1:23-cv-00648-EMR, 1:23-cv-
00650-EMR, 1:23-cv-00651-EMR, 1:23-cv-01282-EMR,
1:23-cv-01455-EMR, 1:23-cv-01491-EMR, Judge Eleni M.
Roumel.
______________________
Decided: July 17, 2026
______________________
AMANDA SHAFER BERMAN, Crowell & Moring, LLP,
Washington, DC, argued for all plaintiffs-appellants.
Plaintiffs-appellants Aetna Inc. Medical Dental Benefit
Plan Blue Cross and Blue Shield of Kansas City Welfare
Benefit Plan Carefirst Flexible Benefits Plan Cook Group
Health Plan Health Care Service Corporation Master Flex-
ible Benefit Plan Healthcare Service Corporation Employ-
ees Welfare Plan Hospital and Medical Plan for Bluecross
Blueshield of SC Humana Benefit Plans Hyatt Corporation
Welfare Plan Lester E. Cox Medical Center Welfare Benefit
Group Insurance Plan Louisiana Health Service & Indem-
nity Company Welfare Benefit Plan UnitedHealth Group
Employee Health Benefit Plan UnitedHealth Group Post-
Employment Medical Plan also represented by CHARLES
BAEK, STEPHEN J OHN MCBRADY , I SSAC D. SCHABES .
MICHAEL K ORDA, Kraw Law Group, Mountain View,
CA, for plaintiffs-appellants Board of Trustees of the Car-
penters Health and Welfare Trust Fund for California,
Carpenters Health and Welfare Trust Fund for California.
SIMON G REGORY J EROME, Appellate Staff, Civil Divi-
sion, United States Department of Justice, Washington,
Case: 24-2317 Document: 62 Page: 2 Filed: 07/17/2026

-- 2 of 13 --

BLUE CROSS AND BLUE SHIELD OF KANSAS CITY WELFARE v. US 3
DC, argued for defendant-appellee. Also represented by
YAAKOV R OTH , CHARLES W. SCARBOROUGH .
______________________
Before D YK, REYNA, and T ARANTO, Circuit Judges.
REYNA, Circuit Judge.
Blue Cross and Blue Shield of Kansas City Welfare
Benefit Plan and other self-insured group health plans
sued the United States government alleging an illegal ex-
action in violation of the Fifth Amendment. The group
health plans alleged that they were improperly required to
contribute funds to the Patient Protection and Affordable
Care Act’s Transitional Reinsurance Program, 42 U.S.C.
§ 18061, and later were illegally denied a refund of those
contributions. The United States Court of Federal Claims
consolidated the cases and dismissed all the complaints for
lack of subject-matter jurisdiction because their claims
were time-barred under the applicable six-year statute of
limitations, 28 U.S.C. § 2501. We affirm.
BACKGROUND
A. Transitional Reinsurance Program
Congress enacted the Patient Protection and Afforda-
ble Care Act (“Affordable Care Act”) to increase the number
of Americans covered by health insurance and decrease the
cost of health care. This appeal focuses on section 1341 of
the Affordable Care Act, known as the Transitional Rein-
surance Program. See generally 42 U.S.C. § 18061. The
Transitional Reinsurance Program was intended to stabi-
lize healthcare premiums for individuals during the early
years of the Affordable Care Act, specifically from 2014 to
2016.
Case: 24-2317 Document: 62 Page: 3 Filed: 07/17/2026

-- 3 of 13 --

BLUE CROSS AND BLUE SHIELD OF KANSAS CITY WELFARE v. US 4
Under the Transitional Reinsurance Program, “health
insurance issuers,1 and third party administrators2 on be-
half of group health plans,”3 were required to make pay-
ments to a reinsurance entity during a three-year period
from 2014 to 2016. 42 U.S.C. § 18061(b)(1)(A). Reinsur-
ance refers generally to a financial arrangement where an
insurer transfers part of its risk to another entity, called
the reinsurer or reinsurance entity. The reinsurance entity
uses the collected funds to make reinsurance payments to
health insurance issuers that cover high-risk patients.
42 U.S.C. § 18061(b)(1)(B), (b)(4).
Section 1341 did not specify the entity that would be
responsible for contributing to the Transitional Reinsur-
ance Program., i.e., the “contributing entity.” The Afforda-
ble Care Act authorized the U.S. Department of Health and
Human Services (“HHS”) to promulgate regulations to
carry out the Transitional Reinsurance Program.
42 U.S.C. § 18041(a). Under this authority, HHS promul-
gated a regulation defining “contributing entity” to clarify
the entity required to make contributions under the Tran-
sitional Reinsurance Program.
In 2013, HHS defined “contributing entity” as “a health
insurance issuer or self-insured group health plan” where
a “self-insured group health plan is responsible for the re-
insurance contributions, though it may elect to use a third
party administrator or administrative services only
1 “Health insurance issuer” generally means an in-
surance company. See 42 U.S.C. § 300gg-91(b)(2).
2 “Third party administrator” generally means an
entity that provides administrative support, such as claims
processing, to health insurance issuers.
3 “Group health plan” generally means an employee
welfare benefit plan that provides medical care to employ-
ees or their dependents. See 42 U.S.C. § 300gg-91(a)(1).
Case: 24-2317 Document: 62 Page: 4 Filed: 07/17/2026

-- 4 of 13 --

BLUE CROSS AND BLUE SHIELD OF KANSAS CITY WELFARE v. US 5
contractor for transfer of the reinsurance contributions.”
Final Rule, 78 Fed. Reg. 15410, 15525 (Mar. 11, 2013).
In 2014, HHS modified the definition of “contributing
entity” to exclude self-administered plans, i.e., a group
health plan that does not use a third-party administrator.
HHS explained that “the better reading of section 1341 is
that a self-insured, self-administered plan should not be a
contributing entity, but in order to avoid disruption to con-
tributing entities, we proposed to retain the prior definition
of contributing entity for the 2014 benefit year.” Final
Rule, 79 Fed. Reg. 13744, 13773 (Mar. 11, 2014).
Both definitions were captured in the promulgated reg-
ulation. Final Rule, 79 Fed. Reg. 13744, 13834 (Mar. 11,
2014) (codified at 45 C.F.R. § 153.20). The regulation pro-
vided that a “contributing entity” means that for the 2014
benefit year, a self-insured group health plan whether or
not it uses a third party administrator; and for the 2015
and 2016 benefit years, a self-insured group health plan
that uses a third party administrator. Id. In other words,
the definition required group health plans that were both
self-insured and self-administered to make contributions
for 2014 but not for 2015 and 2016.4
4 The regulation provides:
For the 2014 benefit year, a self-insured group
health plan (including a group health plan that is
partially self-insured and partially insured, where
the health insurance coverage does not constitute
major medical coverage), whether or not it uses a
third party administrator; and for the 2015 and
2016 benefit years, a self-insured group health plan
(including a group health plan that is partially self-
insured and partially insured, where the health in-
surance coverage does not constitute major medical
coverage) that uses a third party administrator in
Case: 24-2317 Document: 62 Page: 5 Filed: 07/17/2026

-- 5 of 13 --

BLUE CROSS AND BLUE SHIELD OF KANSAS CITY WELFARE v. US 6
B. Electrical Welfare Litigation
In March 2019, a group of health plans filed a class ac-
tion lawsuit in the United States Court of Federal Claims
(“Federal Claims Court”) to recover contributions that they
made to the Transitional Reinsurance Program during the
2014 benefit year. Elec. Welfare Tr. Fund v. United States,
155 Fed. Cl. 169, 173–74 (2021). The lead plaintiff, Elec-
trical Welfare Trust Fund (“Electrical Welfare”), alleged
that it was a self-insured, self-administered health plan,
that it made contributions for the 2014 benefit year, and
that the 2014 contributions constituted an illegal exaction
because HHS’s definition in 45 C.F.R. § 153.20 of “contrib-
uting entity” exceeded statutory authority and was an un-
reasonable interpretation of 42 U.S.C. § 18061. Id. at 174,
180. Electrical Welfare alleged that, even if the regulation
was permissible, it was entitled to recover, i.e., be re-
funded, the contributions as just compensation under the
Takings Clause of the Fifth Amendment. Id. at 174. Only
Electrical Welfare’s illegal exaction claim is relevant to this
appeal because the pleadings here did not assert a takings
claim.
The government moved to dismiss Electrical Welfare’s
complaint for failure to state a claim or, alternatively, for
summary judgment. With respect to the illegal exaction
claim, the Federal Claims Court denied the government’s
motions. As to the motion to dismiss, the Federal Claims
Court reasoned that the plain language of § 1341 did not
give HHS authority to require contributions from self-
connection with claims processing or adjudication
(including the management of internal appeals) or
plan enrollment for services other than for phar-
macy benefits or excepted benefits within the
meaning of section 2791(c) of the [Public Health
Service] Act.
45 C.F.R. § 153.20 (2014).
Case: 24-2317 Document: 62 Page: 6 Filed: 07/17/2026

-- 6 of 13 --

BLUE CROSS AND BLUE SHIELD OF KANSAS CITY WELFARE v. US 7
administered, self-insured health plans for the 2014 bene-
fit year. Id. at 183–84. Since Electrical Welfare “clearly
alleged that it is a self-funded, self-administered plan that
does not use a third-party administrator,” the Federal
Claims Court concluded that Electrical Welfare plausibly
pled an illegal exaction claim. Id. On the alternative mo-
tion for summary judgment, the Federal Claims Court con-
cluded that “there are genuine issues of material fact in
dispute concerning the nature of the plaintiffs’ property in-
terest and the effect the [Transitional Reinsurance Pro-
gram] had on those alleged property interests.” Id. at 193
n.13.
In April 2022, Electrical Welfare moved to certify a
class of entities eligible to recover under the illegal exaction
claim. The Federal Claims Court granted the motion and
certified the following class: “All self-administered, self-in-
sured employee health and welfare benefit plans that are
or were subject to the assessment and collection of the
Transitional Reinsurance Contribution under Section 1341
of the Affordable Care Act for benefit year 2014 (the ‘Exac-
tion Class’ or ‘Class’).” Elec. Welfare Tr. Fund v. United
States, 160 Fed. Cl. 462, 465, 470 (2022). The Federal
Claims Court set a December 2022 deadline for other group
health plans to opt in to the class.
In May 2023, the Federal Claims Court entered partial
judgment in favor of the Class on the illegal exaction claim
and awarded just over $185 million in damages. Elec. Wel-
fare Tr. Fund v. United States, No. 19-cv-353,
2023 WL 3409608, at *2 (Fed. Cl. May 12, 2023). After the
government filed a notice of appeal, the parties agreed to
settle the illegal exaction claims brought by the Class.
Elec. Welfare Tr. Fund v. United States, 171 Fed. Cl. 362,
373 (2024). In May 2024, the Federal Claims Court
granted a motion for final approval of the settlement. Id.
at 392.
Case: 24-2317 Document: 62 Page: 7 Filed: 07/17/2026

-- 7 of 13 --

BLUE CROSS AND BLUE SHIELD OF KANSAS CITY WELFARE v. US 8
C. Instant Proceedings
The appellants in this action claim they are self-admin-
istered and self-insured group health plans that did not opt
in the Electrical Welfare Class. Instead, appellants elected
to file individual suits in the Federal Claims Court between
February and August 2023. The individual cases were con-
solidated, and Blue Cross and Blue Shield of Kansas City
Welfare Benefit Plan (“Blue Cross”), No. 23-cv-641, was
designated as the lead case. The complaints alleged that
they were required to make contributions to the Transi-
tional Reinsurance Program for the 2014 benefit year and
that these contributions amounted to illegal exaction under
the Fifth Amendment. J.A. 6–15; J.A. 252–62.
The government moved to dismiss the complaints for
lack of subject-matter jurisdiction, arguing that the com-
plaints were filed after the six-year filing deadline set forth
in 28 U.S.C. § 2501 and that tolling was unavailable. Ap-
pellants recognized that their complaints were filed after
the six-year statute of limitations and argued that their
statutory deadline was tolled during the Electrical Welfare
litigation. The dispute then centered on whether tolling
was available under § 2501, such that the statute’s six-year
deadline was tolled by the Electrical Welfare litigation.
The tolling relevant to this appeal is known as Ameri-
can Pipe tolling. See American Pipe & Constr. Co. v. Utah,
414 U.S. 538 (1974). Generally, when a class action is filed,
American Pipe tolls the statute of limitations for putative
class members during the pendency of the putative class
action. China Agritech v. Resh, 584 U.S. 732, 736 (2018).
A putative class member is any entity who fits the descrip-
tion of the proposed class, and a putative class action is an
action in which the class has not yet been certified. This
tolling permits, after the statute of limitations has expired,
unnamed putative class members to join the action or, if
the class fails, to file separate claims. Id. Here, appellants
identified the Electrical Welfare class action as the basis for
Case: 24-2317 Document: 62 Page: 8 Filed: 07/17/2026

-- 8 of 13 --

BLUE CROSS AND BLUE SHIELD OF KANSAS CITY WELFARE v. US 9
their American Pipe tolling claim, alleging that they were
putative members of the Electrical Welfare Class.
Because the Electrical Welfare class was certified, and
no longer putative, the Federal Claims Court ordered sup-
plemental briefing on whether American Pipe tolling cap-
tured this situation. J.A. 18. In that supplemental
briefing, the parties identified no “past decision in which
American Pipe tolling was applied to an action in [the Fed-
eral Claims Court] after an opt-in class had been certified
in an underlying class action.” J.A. 18. While the govern-
ment’s position was that American Pipe tolling is unavail-
able under § 2501, it noted that, if American Pipe tolling
was available, “no reason exists to treat class certification
as a bar to class action tolling” in cases before the Federal
Claims Court. J.A. 18–19; J.A. 25 n.21. Thus, the parties
agreed before the Federal Claims Court that American Pipe
tolling, if available under § 2501, applied to the putative
class members from Electrical Welfare even though that
class was certified.
On August 9, 2024, the Federal Claims Court granted
the motion to dismiss, concluding that it lacked subject-
matter jurisdiction. It first noted that “the parties agree
that without tolling, Plaintiffs’ claims are untimely.”
J.A. 23. It then concluded that “American Pipe tolling can-
not toll the deadlines in 28 U.S.C. § 2501” and “the claims
are time-barred.” J.A. 48.
On August 9, 2024, the Federal Claims Court entered
judgment dismissing the complaints. J.A. 1. Blue Cross
appeals. We have jurisdiction under 28 U.S.C.
§ 1295(a)(3).
STANDARD OF REVIEW
We review de novo the Federal Claims Court’s dismis-
sal for lack of subject-matter jurisdiction. Walby v. United
States, 957 F.3d 1295, 1298 (Fed. Cir. 2020).
Case: 24-2317 Document: 62 Page: 9 Filed: 07/17/2026

-- 9 of 13 --

BLUE CROSS AND BLUE SHIELD OF KANSAS CITY WELFARE v. US 10
D ISCUSSION
The Tucker Act, 28 U.S.C. § 1491, waives government
sovereign immunity and provides the Federal Claims
Court with subject-matter jurisdiction “for certain dam-
ages suits” brought against the government. Me. Cmty.
Health Options v. United States, 590 U.S. 296, 322 (2020).
Claims brought under the Tucker Act are subject to the six-
year statute of limitations in 28 U.S.C. § 2501, which pro-
vides that “[e]very claim of which the United States Court
of Federal Claims has jurisdiction shall be barred unless
the petition thereon is filed within six years after such
claim first accrues.” A claim generally accrues “when all
the events that have occurred that fix the alleged liability
of the government and entitle the claimant to institute an
action.” Ingrum v. United States, 560 F.3d 1311, 1314
(Fed. Cir. 2009).
I.
The parties do not dispute that appellants filed their
complaints in the Federal Claims Court after the six-year
filing deadline. Specifically, appellants do not challenge
the Federal Claims Court’s determination that appellants’
claims accrued no later than January 15, 2015, the date
appellants were required to make contributions to the
Transitional Reinsurance Program for the 2014 benefit
year. Given this accrual date, the six-year deadline to file
suit was January 15, 2021. Appellants sued between Feb-
ruary and August 2023, more than two years after the
deadline.
The fundamental dispute on appeal is whether appel-
lants’ late filings can be saved by American Pipe tolling.
Appellants primary argument is that the Federal Claims
Court “erred in holding that American Pipe tolling no
longer applies to Section 2501’s six-year statute of limita-
tions for plaintiffs electing not to join class action lawsuits.”
Appellants’ Br. 17. Appellants urge us to reverse the judg-
ment of the Federal Claims Court and “remand with
Case: 24-2317 Document: 62 Page: 10 Filed: 07/17/2026

-- 10 of 13 --

BLUE CROSS AND BLUE SHIELD OF KANSAS CITY WELFARE v. US 11
instructions to find that American Pipe tolling principles
apply to Section 2501’s statute of limitations.” Appellants’
Br. 53.
Appellants recognize that the sole issue on appeal here,
whether 28 U.S.C. § 2501 is subject to American Pipe toll-
ing, “appears identical” to the issue in Kelly v. United
States, No. 24-2042, ___ F.4th ___ (Fed. Cir. 2026). Appel-
lants’ Br. 1 (“One of several legal issues presented in Kelly
appears identical to the sole issue presented by this case:
whether, in light of the Supreme Court’s decisions in John
R. Sand & Gravel Co. v. United States, 552 U.S. 130 (2008),
and Cal. Pub. Emp. Ret. Sys. v. ANZ Sec., Inc., 582 U.S.
497 (2017) (‘CalPERS’), ‘American Pipe tolling’—the well-
established rule for suspending the running of statutes of
limitation in class actions for putative class members—re-
mains available to toll the six-year limitations period set
forth in 28 U.S.C. § 2501.”).
In Kelly, we resolved this issue and held that § 2501 is
not subject to American Pipe tolling. We concluded that
this outcome is compelled by the Supreme Court’s decisions
in Sand, which explained that § 2501 is jurisdictional and
not subject to equitable tolling, and by CalPERS, which ex-
plained that American Pipe tolling is equitable. Kelly, slip
op. at 7–13, ___ F.4th at ____ (first citing Sand, 552 U.S. at
135–39; then citing CalPERS, 582 U.S. at 509). Because
we are bound by Kelly, we hold that appellants’ complaints
in this action were untimely filed and that the Federal
Claims Court properly dismissed the complaints for lack of
subject-matter jurisdiction.
II.
Two appellants, Board of Trustees of the Carpenters
Health and Welfare Trust Fund for California and the Car-
penters Health and Welfare Fund for California (collec-
tively, the “Carpenters”), make a separate argument. The
Carpenters argue that the Federal Claims Court’s decision
should be reversed as to them because, unlike the other
Case: 24-2317 Document: 62 Page: 11 Filed: 07/17/2026

-- 11 of 13 --

BLUE CROSS AND BLUE SHIELD OF KANSAS CITY WELFARE v. US 12
appellants, they opted in the Electrical Welfare class action
but their claims were dismissed without prejudice. Specif-
ically, the Carpenters argue that the Federal Claims Court
“improperly shifted the burden of proof to the Carpenters
at the pleading stage” by not accepting as true the allega-
tions that they were “putative class members” of the Elec-
trical Welfare class action and wrongly dismissed from that
action. Appellants’ Br. 51–52. The Carpenters argue that
“[t]hese allegations, if accepted as true, show that the
Plaintiff Carpenters filed a timely claim in the Electri-
cal Welfare class action.” Appellants’ Br. 52.
The Carpenters’ distinct argument is without merit.
First, the Carpenters fail to cite any authority that sup-
ports their position that, for purposes of American Pipe toll-
ing, there is a meaningful difference between putative class
members that joined the underlying class action suit, like
the Carpenters, and those that elected not to join, like the
rest of the appellants. We are unaware of any such author-
ity and are not persuaded that we should establish such a
rule in this appeal. Second, the Supreme Court suggests
there is no such difference: “The [American Pipe] rule is not
dependent on intervening in or joining an existing suit
. . . .’” China Agritech, 584 U.S. at 735 (quoting Crown,
Cork & Seal Co. v. Parker, 462 U.S. 345, 350, 353–54
(1983)). Third, we made no such distinction in Kelly.
The Carpenters’ claims are untimely in this case be-
cause putative class members from Electrical Welfare,
whether or not they joined that Class, are not entitled to
American Pipe equitable relief to toll the § 2501 statute of
limitations because § 2501 is a jurisdictional statute of lim-
itations. Kelly, slip op. at 13, ___ F.4th at ____. We there-
fore affirm the Federal Claims Court’s judgment that the
Carpenters’ individual suits in this case were untimely
filed.
Case: 24-2317 Document: 62 Page: 12 Filed: 07/17/2026

-- 12 of 13 --

BLUE CROSS AND BLUE SHIELD OF KANSAS CITY WELFARE v. US 13
CONCLUSION
We have considered appellants’ remaining arguments
and find them without merit. For these reasons, we affirm
the Federal Claims Court’s dismissal of appellants’ com-
plaint as time-barred.
AFFIRMED
COSTS
No costs.
Case: 24-2317 Document: 62 Page: 13 Filed: 07/17/2026

-- 13 of 13 --