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limitations,” Kingsway contends, but merely part of the Act’s “ordinary billing”
scheme—with which, it says, MSPA was required to but failed to comply. Br. of
Appellee at 3. Accordingly, the lone question presented is whether compliance
with the claims-filing provision is a prerequisite to filing suit under the Act’s
private cause of action.
A
We start with the Act’s private cause of action. It reads, in full:
There is established a private cause of action for damages (which shall
be in an amount double the amount otherwise provided) in the case of
a primary plan which fails to provide for primary payment (or
appropriate reimbursement) in accordance with paragraphs (1) and
(2)(A).
§ 1395y(b)(3)(A). In Humana, we held that MAOs can sue under this provision to
recover from primary plans that fail to reimburse their conditional payments. 832
F.3d at 1238. We reasoned that the private cause of action “is broadly available ‘in
to the statute of limitations set forth in 42 U.S.C. § 1395y(b)(2)(B)(iii) . . . .”); Supplemental Br.
of Appellee at 4–5 (“It seems highly unlikely—and no decision suggests—that Congress
intended that the United States would have to bring its reimbursement claims within three years
of any settlement, judgment award or other payment but that private plaintiffs would have a
different or longer period within which to bring their reimbursement claims.”). MSPA contends
that its suit was timely under this statute of limitations because (as we have explained) it first
received notice of Kingsway’s payment responsibility in November 2015 and filed suit the very
next month. See Oral Argument at 4:18. Even if Kingsway were to dispute when MSPA
received (or should have received) the requisite notice, see id. at 15:08 (Kingsway stating that
MSPA’s suit “may or may not be timely” under § 1395y(b)(2)(B)(iii)’s limitations period), that’s
a factual question that can’t be decided at the judgment-on-the-pleadings stage. See, e.g.,
Cannon v. City of W. Palm Beach, 250 F.3d 1299, 1301 (11th Cir. 2001) (“Judgment on the
pleadings is appropriate where there are no material facts in dispute and the moving party is
entitled to judgment as a matter of law.”).
Case: 18-14980 Date Filed: 02/13/2020 Page: 11 of 24