               Case: 11-14745      Date Filed: 07/26/2013     Page: 1 of 26


                                                               [DO NOT PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                                  ____________

                                      No. 11-14745
                                      ____________

                         D.C. Docket No. 1:09-cv-02423-KOB

UNITED STATES,

                                                                Plaintiff-Appellant,
                                          versus

JAMES STRICKER, et al.,

                                                                Defendants-Appellees.

                                     _____________

                     Appeals from the United States District Court
                        for the Northern District of Alabama
                                  ______________

                                      (July 26, 2013)

Before JORDAN and HILL, Circuit Judges, and HOOD, * District Judge.

PER CURIAM:




       *
       The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
               Case: 11-14745        Date Filed: 07/26/2013      Page: 2 of 26


       The government appeals the district court’s dismissal of its action under the

Medicare Secondary Payer Act, 42 U.S.C. § 1395y, as untimely. Having reviewed

the record, and with the benefit of oral argument, we affirm.

                                               I

       Through Medicare, the United States government supplies medical insurance

for persons who are at least 65 years old, disabled, or afflicted by end-stage kidney

disease. At times, another person or entity is responsible for the payment of the

Medicare beneficiary’s medical bills—for example, a tortfeasor who caused the

beneficiary’s injuries—yet refuses to swiftly pay those bills. When that happens, the

Medicare Secondary Payer Act (“MSPA”), 42 U.S.C. § 1395y, 1 allows the

government to pay the beneficiary’s medical bills and then seek recovery from the

party ultimately responsible.

       For decades, from its chemical plant in Anniston, Alabama, the Monsanto

Company and its predecessors—including Pharmacia Corporation and Solutia,

Incorporated—produced polychlorinated biphenyls (“PCBs”), which are toxic

pollutants linked to cancer and birth defects. See Memorandum Opinion at 2 [D.E.

109]. In 1996, thousands of individuals sued Monsanto, Pharmacia, and Solutia

(collectively “the PCB producers”) in state and federal courts in Alabama for

1
 Unless otherwise noted, all references to the statute are to the 2004 version, which is the same
version used by the district court.

                                               2
              Case: 11-14745    Date Filed: 07/26/2013    Page: 3 of 26


injuries caused by PCBs. See, e.g., Abernathy v. Monsanto Co., Case No.

CV-01-832 (Ala. Cir. Ct.); Tolbert v. Monsanto Co., Case No. CV-01-C-1407-S

(N.D. Ala.). Eventually, the parties reached a settlement, whereby the PCB

producers would pay $300 million to the plaintiffs in return for their release of

liability. More than six years after the PCB producers transferred $275 million to the

PCB plaintiffs’ lawyers pursuant to the settlement, but before that money was

distributed to the PCB plaintiffs, the government filed suit under the MSPA against

the PCB producers, the PCB plaintiffs’ lawyers, and the insurance companies which

furnished liability insurance to the PCB producers, seeking to recoup Medicare

payments that it had made on behalf of 907 PCB plaintiffs.

      As relevant here, the Federal Claims Collection Act provides that when an

action is “founded upon [a] contract,” the government must sue within six years of

the accrual of the cause of action. See 28 U.S.C. § 2415(a). For actions “founded

upon a tort,” the government must file suit within three years of accrual. See 28

U.S.C. § 2415(b). The defendants moved to dismiss the government’s MSPA

complaint, arguing that because the underlying cause of action related to a toxic tort

claim, the three-year statute of limitations under § 2415(b) applied to bar the

government’s action as untimely. The defendants alternatively argued that, even if

the six-year statute of limitations under § 2415(a) applied, the government’s action


                                          3
                Case: 11-14745       Date Filed: 07/26/2013       Page: 4 of 26


was still barred because the complaint was filed more than six years after the cause

of action accrued. The district court agreed with both arguments and granted the

motions to dismiss. We affirm, concluding that under the applicable statutory

provisions and federal regulations the government’s action under the MSPA accrued

on October 29, 2003, when the $275 million was transferred by the PCB producers

to the PCB plaintiffs’ lawyers. Accordingly, even if the longer six-year limitations

period applies, the government’s action was untimely.

                                               A

       Years after the PCB plaintiffs filed their personal injury lawsuits, the federal

district court and the state circuit court hearing their claims held a joint session. At

this proceeding, the parties resolved their disputes, and on September 9, 2003,

entered into a $300 million settlement agreement. 2 By its terms, the agreement

outlined a payment schedule whereby the PCB producers would first wire $75

million to an interest-bearing account. Within seven days of the state court’s

approval of the agreement, the PCB producers would wire another $200 million to

the account. See Settlement Agreement at & 3(e)-(g) [D.E. 1-1].

       Under the terms of the settlement agreement, the PCB plaintiffs’ lawyers were


2
 The settlement agreement involved 20,500 plaintiffs, including 17,000 plaintiffs in federal court
and 3,500 plaintiffs in state court. See Transcript of Settlement Hearing Before Chief Judge
Clemon, August 20, 2003 (attached as an exhibit to Pharmacia’s Reply to the Motion to Dismiss)
[D.E. 58-1].

                                                4
                Case: 11-14745       Date Filed: 07/26/2013       Page: 5 of 26


given 90 days to diligently secure a liability release from each client. The PCB

plaintiffs’ lawyers were to hold the releases until at least 75% of the adult plaintiffs

had released their claims, at which point the PCB plaintiffs’ lawyers had to certify

that the 75% threshold had been reached. Once they so certified, the PCB plaintiffs’

lawyers would receive the $275 million. 3

       Thereafter, the PCB plaintiffs’ lawyers were to certify to the state court when

97% of the PCB plaintiffs had signed releases, and at that point give the releases to

the PCB producers. The PCB producers had three days to review the releases and

raise any issues of concern. At “the end of this three day verification period or

following the resolution [of any issues]” by the state court, if the PCB plaintiffs’

lawyers “ha[d] obtained signed [r]eleases” from at least 97% of the PCB plaintiffs,

the PCB plaintiffs’ lawyers were required to “distribute the funds.” See Settlement

Agreement at & 3(c).

       The agreement had one more germane provision. If, after the 90-day period,

fewer than 97% of the PCB plaintiffs had released their claims, the PCB producers,

“at their sole discretion and election,” could give “written notice to” the PCB

plaintiffs’ lawyers that the agreement was “null and void.” See id. at & 5(b). The

3
  The remaining $25 million was to be paid in annual installments of $2.5 million from 2004 to
2013. See Settlement Agreement at & 1(c). The district court rejected the government’s argument
that as to the PCB plaintiffs’ lawyers every annual $2.5 million payment restarted the limitations
period as to that payment. The government does not press that argument on appeal, so we do not
consider it.

                                                5
              Case: 11-14745    Date Filed: 07/26/2013    Page: 6 of 26


PCB plaintiffs’ lawyers would then have to return the $275 million. Otherwise, the

PCB producers could choose to enforce the agreement as to those PCB plaintiffs

who had signed and tendered their releases. The option given to the PCB producers

was consistent with Alabama law, which provides that a breach of a condition

subsequent merely renders a contract voidable. See Sherill v. Sherill, 99 So. 838, 839

(Ala. 1924); Baskett Lumber & Mfg. Co. v. Gravlee, 73 So. 291, 294-95 (Ala. Ct.

App. 1916).

                                          B

      The state court approved the settlement on September 10, 2003. Once

approved, the settlement was binding on the parties under Alabama law. See

Beverly v. Chandler, 564 So. 2d 922, 923 (Ala. 1990). The events contemplated by

the settlement agreement took place as follows:

      $       August 20, 2003: The parties agreed to a settlement.

      $       August 26, 2003: The PCB producers transferred $75
              million to the interest-bearing account.

      $       September 9, 2003: The parties signed a written
              settlement agreement.

      $       September 10, 2003: The state court approved the
              settlement agreement.

      $       September 17, 2003: The PCB producers wired the
              additional $200 million to the interest-bearing account.

      $       October 28, 2003: The PCB lawyers certified that 75% of

                                          6
              Case: 11-14745     Date Filed: 07/26/2013   Page: 7 of 26


             the adult PCB plaintiffs had signed releases.

      $      October 29, 2003: The PCB producers paid $275 million
             to the PCB plaintiffs’ lawyers.

      $      December 2, 2003: The PCB plaintiffs’ lawyers certified
             that 97% of the PCB plaintiffs had signed releases.

On December 1, 2009, the government filed this lawsuit.

                                          C

      The Medicare Secondary Payer Act, as its name implies, is related to the

Medicare program, through which the government funds health insurance for certain

qualifying individuals. Prior to the Act, Medicare paid for a qualifying individual’s

medical services without regard to whether they were also covered under a separate

health plan or other insurance coverage. See Health Ins. Ass’n of Am. v. Shalala, 23

F.3d 412, 414 (D.C. Cir. 1994). To promote the viability of the Medicare system and

reduce expenditures, the Act introduced four features of relevance. See id. at 414–15

(discussing structure of the Act).

      First, the Act generally “declares that, under certain conditions, Medicare will

be the secondary rather than primary payer for” the medical bills of Medicare

beneficiaries. See United States v. Baxter Int’l, Inc., 345 F.3d 866, 874B75 (11th Cir.

2003).

      Second, in instances where the responsible, primary payer 4 “has not made or



                                          7
                Case: 11-14745        Date Filed: 07/26/2013        Page: 8 of 26


cannot reasonably be expected to make payment . . . promptly,” the Act allows

Medicare to make a conditional payment for the beneficiary’s medical services, i.e.,

a payment conditioned on reimbursement by the primary payer. See §

1395y(b)(2)(B)(i).

       Third, the Act obligates a primary payer that is demonstrably responsible for

those medical bills—or anyone who received payment from that primary payer—to

reimburse the government for the amount Medicare conditionally paid. See §

1395y(b)(2)(B)(ii). A primary payer’s responsibility for payment is demonstrated by

“a judgment, a payment conditioned upon the recipient’s compromise, waiver, or

release (whether or not there is a determination or admission of liability) of

payment” for medical-bill claims, “or by other means.” See id.

       Fourth, if the primary payer—or recipient of a payment from the primary

payment—fails to reimburse the government despite its obligation to do so, the Act

provides the government with two mechanisms through which to seek recovery: (i)

the Act grants the government a right to subrogation, 5 to step in and assume the


4
 A primary payer includes a group health plan, a worker’s compensation law or plan, automobile
or liability insurance policy (including a self-insured plan), or a no-fault insurance policy. See 42
U.S.C. § 1395y(b)(2)(A)(ii).
5
  The MSPA provides the government a subrogation right to obtain reimbursement of its
conditional payments. 42 U.S.C. § 1395y(b)(2)(B)(iv). The government may even seek
reimbursement from a third-party payer, even after that third-party has already made separate
payment in settlement of claims with a Medicare beneficiary, if that third-party “is, or should be,

                                                 8
               Case: 11-14745       Date Filed: 07/26/2013     Page: 9 of 26


Medicare beneficiary’s right for payment of medical bills that should have been paid

by the primary payer. See § 1395y(b)(2)(B)(iv); (ii) the government is granted an

independent cause of action to sue and assert its own claim against the primary payer

and anybody who receives payment from the primary payer, including physicians,

attorneys, medical providers, or Medicare beneficiaries themselves. See §

1395y(b)(2)(B)(iii); 42 C.F.R. § 411.24(g).

       As with most complex concepts, a real-world example helps make the Act’s

contours more clear. Imagine a 65-year-old Medicare beneficiary who is injured

when he slips on the wet floor of a supermarket and subsequently receives medical

attention for his injuries. If the supermarket’s negligence caused the man’s injuries,

the supermarket (or its liability insurance carrier) is ultimately responsible for his

medical bills. But if the supermarket denies responsibility, litigation may be required

to resolve the man’s negligence claim, and he may not have the money to pay for his

medical care in the meantime. Because this is a situation in which the supermarket

cannot reasonably be expected to pay promptly, the Act allows Medicare to pay the

man’s medical bills on a conditional basis.

       Now imagine that the man and the supermarket settle the negligence claim

and that the supermarket’s insurer pays the settlement funds to the man. To recoup



aware” of Medicare’s conditional primary payment. See 42 C.F.R. § 411.24(i)(2).

                                              9
              Case: 11-14745     Date Filed: 07/26/2013    Page: 10 of 26


the medical payments Medicare conditionally made, the Act allows the government

to sue the insurer (which, because of the settlement, has been demonstrated to be the

primary payer), the injured man (who is the recipient of a payment from the primary

payment), or both of them. The government can, of course, recover only once, see 54

Fed. Reg. 41716, 41720 (Oct. 11, 1989) (the agency “will not pursue duplicate

recoveries”), and if its recovery is against the insurer, the insurer can in turn sue the

man to recover the payment it made to him, see Shalala, 23 F.3d at 418 n.4. See also

42 C.F.R. § 411.24(i)(1) (“If Medicare is not reimbursed as required . . . the primary

payer must reimburse Medicare even though it has already reimbursed the

beneficiary or other party.”).

                                           D

       On December 1, 2009—one day short of six years from the day that the PCB

plaintiffs’ lawyers filed the 97% certification and more than six years after the PCB

producers paid the $275 million to the PCB plaintiffs’ lawyers—the government

sued the PCB producers, the PCB plaintiffs’ lawyers, and the PCB producers’

liability insurers.

       The settlement agreement, the government alleged, demonstrated that the

PCB producers and their insurers were responsible for the payment of the medical

treatment needed by Medicare beneficiaries as a result of the PCBs produced in


                                           10
             Case: 11-14745     Date Filed: 07/26/2013    Page: 11 of 26


Anniston. The government also alleged that Medicare had paid for the PCB-related

medical treatment of 907 PCB plaintiffs. According to the government, because the

PCB plaintiffs’ lawyers had accepted payment from those responsible for payment

of the medical services, they too were liable under the MSPA.

      The PCB producers, their insurers, and the PCB plaintiffs’ lawyers moved to

dismiss the complaint. They argued that, under 28 U.S.C. § 2415, the government’s

suit was untimely. As noted earlier, the district court agreed and the government

appealed.

                                          II

      When it considers a motion to dismiss under Rule 12(b)(6), a district court

accepts the factual allegations in the complaint as true and decides whether they

raise a right to relief above the speculative level. See Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 555-56 (2007). We undertake plenary review of the district court’s

decision, applying the same standard used below. See Lanfear v. Home Depot, Inc.,

679 F.3d 1267, 1275 (11th Cir. 2012). A “dismissal on statute of limitations grounds

is appropriate only if it is ‘apparent from the face of the complaint’ that the claim is

time-barred.” La Grasta v. First Union Securities, Inc., 358 F.3d 840, 845 (11th Cir.

2004) (citation omitted).

                                           A


                                          11
             Case: 11-14745     Date Filed: 07/26/2013   Page: 12 of 26


      The purpose of a statute of limitations, such as 28 U.S.C. § 2415, “is to require

the prompt presentation of claims.” Coppage v. U.S. Postal Serv., 281 F.3d 1200,

1206 (11th Cir. 2002) (internal quotation marks and citation omitted). Originally,

there was no statute of limitations for lawsuits filed by the government. Congress,

however, passed § 2415—a statute of limitations that applies to the United States

—“to promote diligence by the government in bringing claims to trial and also to

make the position of the government more nearly equal to that of a private litigant.”

United States v. Kass, 740 F.2d 1493, 1496 (11th Cir. 1984).

      As relevant here and as noted above, § 2415 contains two time limits. The

government has six years “after the right of action accrues” to bring an action

“founded upon any contract express or implied in law or fact.” See § 2415(a). It has

three years after the action accrues to bring an action “founded upon a tort.” See §

2415(b).

      The government characterizes its MSPA claim as an action founded upon a

contract implied in law. If this characterization is correct, the government would

have had six years from the date of accrual to bring this action. And, so long as the

government’s claim accrued when the PCB plaintiffs’ lawyers certified that 97% of

the PCB plaintiffs had released their claims, the government’s lawsuit would be

timely. The defendants contend, however, that the claim is really an action founded


                                         12
               Case: 11-14745       Date Filed: 07/26/2013       Page: 13 of 26


upon a tort, giving the government only three years from accrual to sue.

       We need not, and do not, decide whether the government’s attempt to recoup

Medicare payments under the MSPA after a toxic-tort settlement constitutes an

action founded upon a contract or an action founded upon a tort. 6 Assuming that §

2415(a)’s six-year limitations period applies, the government’s action under the

MSPA against the PCB producers, their insurers, and the PCB plaintiffs’ lawyers

accrued on October 29, 2003, when the PCB producers transferred $275 million

from an interest-bearing account to the PCB plaintiffs’ lawyers. Because the

government filed this lawsuit on December 1, 2009—six years, one month, and two

days from when its action accrued—its lawsuit is untimely. 7

                                                B

       The accrual of a federal cause of action is a matter of federal law. See Wallace

v. Kato, 549 U.S. 384, 388 (2007); Mendiola v. United States, 401 F.2d 695, 697 (5th

Cir. 1968). The general rule is that a federal cause of action “accrues once a plaintiff


6
  Recently signed legislation, although not applicable in this case, clarifies the uncertainty
concerning statute of limitations issues for MSPA reimbursement claims. The Strengthening
Medicare and Repaying Taxpayers Act establishes a three-year statute of limitations for Medicare
to file suit for recovery under the MSPA. See Pub. L. No. 112-242, § 205(a) (2013). A claim by the
government must be “filed not later than 3 years after the date of the receipt of notice of a
settlement, judgment, award, or other payment made pursuant to paragraph (8) relating to such
payment owed.” Id.
7
  The government never sued any of the PCB plaintiffs on whose behalf it had made conditional
Medicare payments. We therefore express no view on when the government’s MSPA cause of
action against such PCB plaintiffs would have accrued.

                                               13
               Case: 11-14745        Date Filed: 07/26/2013       Page: 14 of 26


has a ‘complete and present cause of action.’” Merk & Co., Inc. v. Reynolds, 130 S.

Ct. 1784, 1793 (2010) (citation omitted). “Unless Congress has told us otherwise in

the legislation at issue, a cause of action does not become ‘complete and present’ for

limitations purposes until the plaintiff can file suit and obtain relief.” Bay Area

Laundry & Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 U.S. 192,

201 (1997). As we explain below, Congress and the Secretary of Health and Human

Services—who has the authority to “promulgate regulations to carry out” the

MSPA, see 42 U.S.C. § 1395y(o)(3) 8—have told us that the government can file suit

under the Act against non-beneficiaries before settlement proceeds are irrevocably

transferred to Medicare beneficiaries.

                                                     1

       The MSPA allows the government to “bring an action against any and all

entities that are or were required or responsible . . . to make payment [for expenses

conditionally paid by Medicare] . . . under a primary plan.” 42 U.S.C. §

1395y(b)(2)(B)(iii). An entity which “engages in a business, trade, or profession

shall be deemed to have a self-insured plan if it carries its own risk (whether by

8
 Subsection (o) was not added to the Act until 2010. See Pub. L. No. 111-148 at 760 (March 23,
2010). But there is no doubt about the Secretary’s authority to prescribe regulations. For example,
§ 1395hh, enacted in 1965, provides that “[t]he Secretary shall prescribe such regulations as may
be necessary to carry out the administration of the insurance programs under this subchapter.” 42
U.S.C. § 1395hh(a)(1). See also 42 U.S.C. § 1395ii, Pub. L. No. 103-296, § 108(c)(4) (1994);
Baxter Int’l, 345 F.3d at 887 (“HHS . . . was expressly delegated by Congress to formulate rules
implementing the MSP statute”).

                                                14
             Case: 11-14745     Date Filed: 07/26/2013   Page: 15 of 26


failure to obtain insurance, or otherwise) in whole or in part.” § 1395y(b)(2)(A)(ii).

Although the MSPA itself does not expressly speak to when the government’s cause

of action accrues against non-beneficiaries, several of its accompanying regulations

give us some guidance.

      In relevant part, 42 C.F.R. § 411.24(e) gives the government “a direct right of

action to recover from any primary payer,” defined for our purposes as “any entity

that is or was required or responsible to make payment with respect to an item or

service (or any portion thereof) under a primary plan.” 42 C.F.R. § 411.21. The

government also has a “right of action to recover its payments from any entity,

including a beneficiary, provider, supplier, physician, attorney, State agency or

private insurer that has received a primary payment.” 42 C.F.R. § 411.24(g).

      Pursuant to § 1395y(b)(2)(B)(ii) of the Act, a “primary plan’s responsibility

for . . . payment may be demonstrated by a judgment, a payment conditioned upon

the recipient’s compromise, waiver, or release (whether or not there is a

determination or admission of liability) . . . or by other means.” Because the PCB

plaintiffs did not obtain a judgment against the PCB producers or their insurers, the

government and the defendants focus on the “payment conditioned upon . . . release”

language in § 1395y(b)(2)(B)(ii). According to the defendants, when the PCB

producers paid hundreds of millions of dollars on the condition that the PCB


                                         15
               Case: 11-14745        Date Filed: 07/26/2013       Page: 16 of 26


plaintiffs release their tort claims, the PCB producers made a “payment conditioned

upon . . . release” as required by the MSPA. The government, not surprisingly,

disagrees. It argues that this statutory language requires a final, enforceable

settlement agreement. Because the PCB producers had the unilateral right to void the

settlement agreement until 97% of the PCB plaintiffs released their claims, the

government argues, a final release did not take place until December 2, 2003, when

the PCB producers could no longer void the agreement, and it is only on that date

that the government’s action under the MSPA accrued.9

       In our view, both interpretations of the conditioned-upon-release language in

§ 1395y(b)(2)(B)(ii) are plausible. The phrase “conditioned upon” can reasonably

refer to the actual execution of a release and a finalized settlement agreement (i.e., a

contract that is enforceable only when the plaintiff irrevocably releases his claim in

exchange for money), as the government urges, or to the anticipated future execution

of a release pursuant to a fully signed settlement agreement (i.e., a promise

enforceable on the completion of a condition subsequent), as the defendants say. See

9
  At the hearing on a motion for reconsideration before the district court, the government argued
that a critical issue with respect to the accrual of its claim and the tolling of the statute of
limitations was when the government knew or should have known that the defendant tortfeasors
first demonstrated responsibility for reimbursing Medicare. See Transcript of Hearing [D.E. 149]
at 90-91 (Govt.’s counsel: “In terms of what we have given you in writing, we have not submitted
any factual statements . . . . You can’t infer from silence that we had knowledge prior to December
2003.”). However, the government has chosen not to raise this issue on appeal and we therefore
express no opinion on whether notice might affect the accrual of the government’s claim under the
MSPA.

                                                16
             Case: 11-14745     Date Filed: 07/26/2013   Page: 17 of 26


1 SHORTER OXFORD ENGLISH DICTIONARY 480 (5th ed. 2002) (defining

“conditioned” as “subject to conditions or limitations; dependent on a condition; not

absolute or infinite”); BLACK’S LAW DICTIONARY 333 (9th ed. 2009) (defining

“condition” as a “future and uncertain event on which the existence or extent of an

obligation or liability depends”).

      The Secretary of Health and Human Services has issued a regulation, 42

C.F.R. § 411.22(b), which interprets § 1395y(b)(2)(B)(ii) and provides as follows:

             A primary payer’s responsibility for payment may be
             demonstrated byC

             (1) A judgment;

             (2) A payment conditioned upon the beneficiary’s
             compromise, waiver, or release (whether or not there is a
             determination or admission of liability) of payment for
             items or services included in a claim against the primary
             payer or the primary payer’s insured; or

             (3) By other means, including but not limited to a
             settlement, award, or contractual obligation.

We defer to this regulation if the statute it interprets is ambiguous or silent with

respect to the specific issue, and if the Secretary’s interpretation is a permissible

construction of the statute. See Gulfcoast Med. Supply, Inc. v. Sec’y, Dep’t of HHS,

468 F.3d 1347, 1351 (11th Cir. 2006) (per curiam). As a general matter,

“considerable weight should be accorded to an executive department’s construction

of a statutory scheme it is entrusted to administer . . . .” Chevron U.S.A., Inc. v.

                                         17
              Case: 11-14745    Date Filed: 07/26/2013   Page: 18 of 26


Natural Res. Def. Council, 467 U.S. 837, 844 (1984).

      As we have noted, the relevant statutory language here is ambiguous. Both

parties offer reasonable readings of the phrase “conditioned upon . . . release.” And

though § 1395y(b)(2)(B)(ii) also states that “other means” may demonstrate that a

person or entity is responsible for medical payments conditionally made by

Medicare, those words are about as open-ended as language gets. Because the

statutory language is unclear, and because 42 C.F.R. § 411.22(b) is a reasonable

construction of that language, we defer to the Secretary’s regulation, as other courts

have done. See, e.g., Bio-Medical Applications of Tenn., Inc. v. Cent. States Se. and

Sw. Areas Health and Welfare Fund, 656 F.3d 277, 291 (6th Cir. 2011) (concluding

that “other means” language in § 1395y(b)(2)(B)(ii) is ambiguous and according

Chevron deference to 42 C.F.R. § 411.22(b)(3) as a reasonable regulation); Mason v.

Sebelius, No. 11-2370 (JBS/KMW), 2012 WL 1019131, at *14 (D.N.J. Mar. 23,

2012) (giving Chevron deference to 42 C.F.R. § 411.22(b)(2)); Nat’l Comm. to

Preserve Social Security and Medicare v. Phillip Morris USA Inc., 601 F. Supp. 2d

505, 510 n.4 (E.D.N.Y. 2009) (indicating that 42 C.F.R. § 411.22 is entitled to

deference), vacated on other grounds, 395 F. App’x 772, 2010 WL 3933494 (2nd

Cir. 2010).

      In our opinion, 42 C.F.R. § 411.22(b)(3)—a version of which has been in


                                         18
             Case: 11-14745     Date Filed: 07/26/2013    Page: 19 of 26


effect since 2006—undermines the government’s accrual argument. The regulation

provides, much like the statute, that responsibility for payment may be demonstrated

by a judgment, payment conditioned upon release, or “other means.” Id. at §

411.22(b). The regulation defines “other means” as including but not limited to—a

“settlement” or “contractual obligation.” Id. at § 411.22(b)(3). If that is so, then the

payment-conditioned-upon-release language in § 1395y(b)(2)(B)(ii) cannot mean

only a settlement or contractual obligation because every word in a statute or

regulation must be given meaning, and laws generally lack (or are interpreted not to

have) surplus language. See Bhd. of Locomotive Eng’rs & Trainmen Gen. Comm. of

Adjustment CSX Transp. N. Lines v. CSX Transp., Inc., 522 F.3d 1190, 1195 (11th

Cir. 2008) (“courts must reject statutory interpretations that would render portions of

a statute surplusage”); United States v. Hassanzadeh, 271 F.3d 574, 582 (4th Cir.

2001) (“We construe a statute or regulation ‘so that, when possible, no part . . . is

superfluous.’”). The government’s construction would render the statutory

payment-conditioned-upon-release language meaningless, for the “other means”

language (as interpreted in the regulation) would incorporate it wholesale. Guided

by 42 C.F.R. § 411.22(b), we therefore interpret the statutory phrase “payment

conditioned upon . . . release” to include a payment made to a Medicare beneficiary

(or his agent) that is conditioned upon the beneficiary releasing his claim at some


                                          19
             Case: 11-14745      Date Filed: 07/26/2013    Page: 20 of 26


point in the future, even though a settlement has not been fully concluded.

      The language of the statute bolsters this outcome. The statutory phrase

“payment conditioned upon . . . release” assumes that a payment may be revoked

unless the “condition” of valid releases being provided has been satisfied. The

statute does not use the language “payment in exchange for release” which would

support a contrary argument that the releases must be effective prior to the payment.

Nor does the statute express any dispositive aspect as to whom payment is made or

whether payment must be released directly to beneficiaries—only that payment has

been conditioned upon a release. Cf. 17A Corpus Juris Secundum, Contracts, § 451

(updated June 2013) (“A condition subsequent presumes a valid contract and refers

to a future event.”). See also Settlement Agreement at ¶ 3(a) (“Each plaintiff . . . as a

condition of receiving any payment to or on behalf of such plaintiff . . . shall be

required to sign a general release of all claims”) (emphasis added).

      Applying our interpretation of § 1395y(b)(2)(B)(ii) to the allegations in the

complaint, we conclude that the government’s cause of action under the MSPA

accrued on October 29, 2003, when the PCB producers and their insurers transferred

$275 million to the PCB plaintiffs’ lawyers. The PCB plaintiffs’ lawyers who

received those funds were agents of the PCB plaintiffs and held the money on their

clients’ behalf, so the transfer was in effect a payment to the PCB plaintiffs, and


                                           20
              Case: 11-14745      Date Filed: 07/26/2013   Page: 21 of 26


under the settlement agreement’s terms, the ultimate payment to the PCB plaintiffs

was conditioned on the PCB plaintiffs signing releases in favor of the PCB

producers. Indeed, in its complaint the government itself alleged that the “terms of

the Abernathy Settlement rendered these defendants [Monsanto, Solutia, and

Pharmacia] required or responsible to pay under a primary plan.” Compl. ¶ 47

(emphasis added); id. at ¶ 42. Thus, pursuant to the terms of the Settlement

Agreement and the government’s own allegations, the limitations period began to

run no later than when the defendants made the $275 payment under the Settlement

Agreement, at the latest, and the government’s complaint filed more than six years

after that date is time-barred.

      In its briefs, the government essentially ignores 42 C.F.R. § 411.22(b), and

never explains why we should not defer to that regulation in deciding when an

MSPA claim of this type accrues under 42 U.S.C. § 1395y(b)(2)(B)(ii). The

government does assert that our interpretation cannot possibly be the law, for it

would mean that the PCB producers could “void” the settlement agreement after a

lawsuit was instituted. But the Secretary is entitled to make reasonable policy

choices, and may believe it best for Medicare (and for the federal treasury) if the

government intervenes or sues for reimbursement under the Act as quickly as

possible. See Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S.


                                           21
               Case: 11-14745       Date Filed: 07/26/2013       Page: 22 of 26


967, 997 (2005) (upholding FCC regulation because “construction [of ambiguous

statute] was ‘a reasonable policy choice for the [Commission] to make’”) (citation

omitted). Such promptness, for example, may ensure that settlement proceeds do not

evaporate. 10 Time may be of the essence, and the Secretary is surely free to balance

the risk of losing money transferred through a settlement with the possible

inefficiency of suing sooner rather than later. But in the end, our decision does not

depend on our agreement with the Secretary’s policy decisions; even if we thought

that the Secretary’s regulation was “not . . . the only possible interpretation or even

the one a court might think best,” we would still be required to defer to it. See Holder

v. Martinez Gutierrez, 132 S. Ct. 2011, 2017 (2012).

       The government also argues that the cause of action could not have accrued

before December 2, 2003—when the PCB plaintiffs’ lawyers certified that 97% of

the PCB plaintiffs had signed releases—because the defendants did not know which

plaintiffs would elect to settle their claims. We are not persuaded. First, this

argument fails to materially advance the government’s position; the government’s

lack   of    certainty    does    nothing     to    change     our    interpretation    of    the

payment-conditioned-upon-release language in § 1395y(b)(2)(B)(ii) as interpreted

by 42 C.F.R. § 411.22(b). Second, the government acknowledges that even if the
10
  In toxic-tort litigation, large corporations sometimes go bankrupt. See, e.g., In re Dow Corning
Corp., 250 B.R. 298, 307-08 (Bankr. E.D. Mich. 2000). Something similar, in fact, seems to have
happened to Solutia. See Compl. at & 28.

                                               22
             Case: 11-14745       Date Filed: 07/26/2013   Page: 23 of 26


PCB plaintiffs’ lawyers had failed to obtain releases from 97% of the plaintiffs,

“[a]lternatively, at their option, [the defendants] could choose to enforce the

agreement as to the plaintiffs who had signed releases.” Brief for United States at 7.

Thus, this is not a case where the defendants had to do anything to keep the

settlement enforceable. Under Alabama law, as noted earlier, the non-occurrence of

a condition subsequent only made the settlement voidable, and if the defendants did

nothing, the settlement would remain in place notwithstanding the failure to meet the

97% release target. See Settlement Agreement at & 5(b) (“If the [defendants] do not

give such written notice [that the settlement agreement is null and void], plaintiffs’

counsel shall distribute the funds”).

      The confirmation by the PCB plaintiffs’ lawyers that they had obtained 97%

of releases was significant in a contractual sense because it ensured that the

defendants would not be able to void the settlement agreement, but it did not give the

government any more information about the existence of a claim under the MSPA

than when those lawyers confirmed on October 28, 2003, that 75% of the releases

had been obtained. The 97% certification was not a prerequisite for accrual of the

government’s MSPA claim; the significant event occurred when the PCB producers

made a payment of $275 million to the PCB plaintiffs’ lawyers, conditioned upon

releases by the PCB plaintiffs.


                                           23
             Case: 11-14745     Date Filed: 07/26/2013    Page: 24 of 26




                                          2

      Additionally, the government’s argument that our affirmance will require the

filing of premature lawsuits is also undercut by another of the Secretary’s

regulations, which provides that the government “may initiate recovery as soon as it

learns that payment has been made or could be made under workers’ compensation,

any liability or no-fault insurance, or an employer group health plan.” 42 C.F.R. §

411.24(b) (emphasis added). On October 29, 2003, the $275 million payment “ha[d]

been made” and the settlement agreement mandated that ten more annual payments

of $2.5 million “could be made.” See Settlement Agreement at & 1(c) (requiring

annual payments from 2004 to 2013). And even if the $275 million was considered a

contingent transfer at the time, those funds constituted a payment that “could be

made.” Thus, the government need not wait to file suit until a payment for medical

bills has been made by a responsible entity; it is sufficient for the government to

learn that payment “could be made” by a responsible entity.

      The import of these regulatory provisions, § 411.22(b) and § 411.24(b)

—which have not been challenged here—is that the government was able to file suit

under the MSPA against the defendants once the PCB producers and their insurers

transferred $275 million to the PCB plaintiffs’ lawyers. At that point it became clear,


                                          24
               Case: 11-14745   Date Filed: 07/26/2013   Page: 25 of 26


in the words of 42 U.S.C. § 1395y(b)(2)(B)(iii), that—according to the

government’s MSPA theory of recovery—the PCB producers and their insurers

were “required or responsible . . . to make payment” for expenses conditionally paid

by Medicare, and that the PCB plaintiffs’ lawyers had, in the words of 42 C.F.R. §

411.24(g), “received a primary payment.” Cf. Glover v. Liggett Grp., 459 F.3d 1304,

1309 (11th Cir. 2006) (per curiam) (“[W]e conclude that an alleged torfeasor’s

responsibility for payment of a Medicare beneficiary’s medical costs must be

demonstrated before an [MSPA] private cause of action for failure to reimburse

Medicare can correctly be brought . . . .”); United States v. Hughes House Nursing

Home, Inc., 710 F.2d 891, 894 (1st Cir. 1983) (“the government’s cause of action [to

recover Medicare overpayments] accrued when, under its regulations, it became

entitled to demand its money back from the [nursing home]”).

      The government’s cause of action under the MSPA against the PCB

producers, their insurers, and the PCB plaintiffs’ lawyers accrued on October 29,

2003, so the government had until October 29, 2009 to bring this lawsuit, even if the

longer six-year statute of limitations applied pursuant to 28 U.S.C. § 2415(a).

Because the government brought this lawsuit on December 2, 2009, the action is

time-barred.

                                         III


                                         25
            Case: 11-14745    Date Filed: 07/26/2013   Page: 26 of 26


      The district court’s dismissal of the government’s complaint as untimely is

affirmed.

      AFFIRMED.




                                       26
