MSPA Claims 1, LLC. v. Tower Hill Prime Insurance Co.

USCA11 Case: 21-11135 Date Filed: 08/10/2022 Page: 1 of 18
[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11135
____________________
MSPA CLAIMS 1, LLC,
Plaintiff-Appellant,
versus
TOWER HILL PRIME INSURANCE CO,
Defendant-Appellee,
TOWER HILL CLAIMS SERVICE, LLC,
Defendant.
USCA11 Case: 21-11135 Date Filed: 08/10/2022 Page: 2 of 18
2 Opinion of the Court 21-11135
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 1:18-cv-00157-AW-GRJ
____________________
Before NEWSOM, TJOFLAT, and HULL, Circuit Judges.
NEWSOM, Circuit Judge:
MSPA Claims 1 LLC—the assignee of a now-defunct Medi-
care Advantage Organization—sued Tower Hill Prime Insurance
Company to recover a reimbursable payment. The district court
granted Tower Hill’s motion for summary judgment because it de-
termined that MSPA Claims 1’s suit was untimely. We affirm.
I
A
This case centers on the Medicare Secondary Payer Act,
which—and this is hardly an outlier sentiment—is “notoriously
complex.” Humana Med. Plan, Inc. v. W. Heritage Ins. Co., 832
F.3d 1229, 1240 (11th Cir. 2016) (Pryor, J., dissenting). Given that
notorious complexity, we’ll set the table with a remedial course on
the Act’s operation.
Congress created Medicare to provide insurance to those
over the age of 65. See MSPA Claims 1, LLC v. Kingsway Amigo
Ins. Co., 950 F.3d 764, 767 (11th Cir. 2020). Oftentimes, though, it
USCA11 Case: 21-11135 Date Filed: 08/10/2022 Page: 3 of 18
21-11135 Opinion of the Court 3
turns out that more than one insurer may be liable for a Medicare
beneficiary’s medical expenses. For example, a car-accident victim
might be entitled to recover medical expenses both from her own
Medicare provider and from the other driver’s auto-insurance com-
pany. See MSPA Claims 1, LLC v. Tenet Fla., Inc., 918 F.3d 1312,
1316 (11th Cir. 2019). Originally, in such instances, Medicare was
the “primary” payer—meaning that it paid first—and private insur-
ers were “secondary” payers—meaning that they covered only
those expenses that remained after Medicare had paid. Id.That changed in 1980. In an effort to cut Medicare costs,
Congress “inverted that system” by passing the Medicare Second-
ary Payer Act. Humana, 832 F.3d at 1234 (quotation omitted).
Now, private insurers serve as the primary payers. See id. That
leaves Medicare—or in some instances, as we’ll explain, a “Medi-
care Advantage Organization”—as the secondary payer, or the
payer “of last resort, available only if no private insurer [is] liable.”
Id.
The Medicare Secondary Payer Act also accounts for what
happens when the primary payer “has not made or cannot reason-
ably be expected to” pay for treatment “promptly.” 42 U.S.C.
§ 1395y(b)(2)(B)(i). In those instances, the secondary payer “may
make” the payment, “conditioned on reimbursement.” Id. The
primary payer “shall reimburse” the secondary payer if it “has or
had a responsibility to make payment with respect to such item or
service.” Id. § 1395y(b)(2)(B)(ii). If the primary payer fails to do so,
USCA11 Case: 21-11135 Date Filed: 08/10/2022 Page: 4 of 18
4 Opinion of the Court 21-11135
the secondary payer can sue for double damages. See id.
§§ 1395y(b)(2)(B)(iii), 1395y(b)(3)(A).
Separately, Congress passed Medicare Part C—the Medicare
Advantage program—in 1997. See Pub. L. No. 105-33, 111 Stat.
251, 276 (1997) (codified as amended at 42 U.S.C. § 1395w-21).
That legislation, among other things, created Medicare Advantage
Organizations—private insurance companies providing Medicare
benefits in exchange for fixed fees from the Centers for Medicare
and Medicaid Services—and enabled those “MAOs” to act as sec-
ondary payers under the Medicare Secondary Payer Act. See King-
sway, 950 F.3d at 768. Accordingly, an MAO, like Medicare, may
“sue a primary plan that fails to reimburse [its] secondary pay-
ment.” Humana, 832 F.3d at 1238.
But while they possess the same statutory right to seek re-
imbursement, the Medicare Secondary Payer Act provides distinct
causes of action for private and government actors. Thus, “unlike
Medicare,” when an MAO sues, it “must rely” on the Medicare Sec-
ondary Payer Act’s so-called “private cause of action,” which Con-
gress added to the legislation in 1986, and which is found at 42
U.S.C. § 1395y(b)(3)(A). Tenet, 918 F.3d at 1317; see also Pub. L.
No. 99-509, 100 Stat. 1874, 2011 (1986) (codified as amended at 42
U.S.C. § 1395y(b)(3)(A)). It “cannot use the separate government
cause of action,” found at 42 U.S.C. § 1395y(b)(2)(B)(iii). Tenet, 918
F.3d at 1317. And, importantly for our purposes, unlike the gov-
ernment cause of action—which contains a three-year statute of
limitations—the private cause of action does not specify a
USCA11 Case: 21-11135 Date Filed: 08/10/2022 Page: 5 of 18
21-11135 Opinion of the Court 5
limitations period. Compare 42 U.S.C. § 1395y(b)(2)(B)(ii), with id.
§ 1395y(b)(3)(A). As we’ll explain, that’s where the rubber meets
the road in this case: Because MSPA Claims 1 sued under the pri-
vate cause of action, it isn’t clear what the applicable limitations
period is or, consequently, whether its claim was timely filed.
B
Now, the facts and procedural history of this case. In 2012,
D.L. was attacked by her neighbor’s dog. At the time, D.L. was a
Medicare Part C beneficiary enrolled in a Medicare Advantage Pro-
gram that was administered by Florida Healthcare Plus—a now-
defunct MAO. As a result of D.L.’s injuries, Florida Healthcare
paid her medical providers $8,146.09.
D.L.’s neighbor held a liability-insurance policy with Tower
Hill. Tower Hill entered into a settlement agreement with D.L. in
2012, agreeing to pay her $25,000 in exchange for releasing it from
liability. Tower Hill reported the settlement to the Centers for
Medicare and Medicaid Services, but it didn’t reimburse Florida
Healthcare.
MSPA Claims 1 is Florida Healthcare’s assignee and, there-
fore, holds the right to any claim that Florida Healthcare might
have against Tower Hill to recover the payments made for D.L.’s
medical expenses. In 2015, MSPA Claims 1 learned of the possibil-
ity of a claim against Tower Hill and it issued a Notice of Lien letter
demanding payment “[i]f Medical Payment or other applicable in-
surance coverage exists.” Tower Hill responded, advising MSPA
USCA11 Case: 21-11135 Date Filed: 08/10/2022 Page: 6 of 18
6 Opinion of the Court 21-11135
Claims 1 that the claim “was settled on 6/22/12.” That was the
first time MSPA Claims 1 had been directly informed of the settle-
ment. MSPA Claims 1 issued a second demand letter in 2018, but
Tower Hill never reimbursed it for any payments.
MSPA Claims 1 filed the lawsuit that underlies this appeal
on August 17, 2018. In particular, MSPA Claims 1 asserted that
Tower Hill caused it (and other similarly situated entities) financial
harm when Tower Hill, as a primary payer, failed to pay statutorily
required reimbursements. MSPA Claims 1 alleged a claim under
the Medicare Secondary Payer Act’s private cause of action, see 42
U.S.C. § 1395y(b)(3)(A), and for breach of contract. On Tower
Hill’s motion, the district court dismissed MSPA Claims 1’s breach-
of-contract count for failure to state a claim.
Following the partial dismissal, the parties submitted duel-
ing summary-judgment motions on MSPA Claims 1’s secondary-
payer claim. Tower Hill asserted that it was entitled to summary
judgment because MSPA Claims 1’s lawsuit was filed “over six
years after [the Centers for Medicare and Medicaid Services] re-
ceived notice of this claim” in 2012, and was therefore “barred by
the three-year statute of limitations” found in the government
cause of action, whose limitations period it contended applied to
this suit. Although it agreed that the limitations period from the
government cause of action applied, MSPA Claims 1 argued that
the three-year limitations period begins to run only when “a party
is notified of a settlement”—which it insisted occurred, at the
USCA11 Case: 21-11135 Date Filed: 08/10/2022 Page: 7 of 18
21-11135 Opinion of the Court 7
earliest, in 2015. Accordingly, it contended that it had filed its suit
“within the three-year notice-based statute of limitations.”
Because, as already explained, the private cause of action un-
der which MSPA Claims 1 sued does not specify a statute of limita-
tions, the district court sought supplemental briefing on which lim-
itations period it should apply. In response, MSPA Claims 1 ar-
gued—forsaking the position it had taken in its summary-judgment
motion—that the district court “should borrow the statutes of lim-
itations provided under” the False Claims Act. Tower Hill main-
tained its prior position that the three-year limitations period pro-
vided in the government cause of action applied.
The district court granted in part and denied in part Tower
Hill’s summary-judgment motion. It held that MSPA Claims 1’s
suit was not time-barred, but it declined to “determine what the
proper statute of limitations period is.” Because Tower Hill “based
its time-barred argument exclusively on the federal three-year pro-
vision in the government action, . . . the only question before [the
district court was] whether the three-year federal provision ap-
plied.” And it concluded that it did not.
Tower Hill filed a motion for reconsideration, which the dis-
trict court construed as a renewed motion for summary judgment.
Tower Hill argued that if the limitations period from the govern-
ment cause of action didn’t apply, then Florida’s general statute of
limitations for “[a]ctions other than for recovery of real property”
governed and barred MSPA Claims 1’s suit. The district court re-
visited its earlier summary-judgment ruling and held that Florida’s
USCA11 Case: 21-11135 Date Filed: 08/10/2022 Page: 8 of 18
8 Opinion of the Court 21-11135
“four-year limitations period applies.” “And because MSPA
[Claims 1’s cause of action] accrued more than four years before
this suit began,” it granted Tower Hill’s renewed motion on time-
liness grounds.
MSPA Claims 1 appealed to this Court. Before us, both
MSPA Claims 1 and Tower Hill now agree that the district court
erred when it borrowed and applied Florida’s general statute of
limitations. Moreover, both parties contend that 42 U.S.C.
§ 1395y(b)(2)(B)(iii)—the government cause of action—provides
the applicable limitations period. They diverge narrowly (but sig-
nificantly) on when that period began to run. MSPA Claims 1 be-
lieves that the limitations period did not commence until it re-
ceived notice of its claim in 2015 and, therefore, that its suit was
timely filed in 2018. Tower Hill asserts that the limitations period
started in 2012, either (1) when it entered into the settlement agree-
ment with D.L., or (2) when it reported the settlement to the Cen-
ters for Medicare and Medicaid Services—and, therefore, that
MSPA Claims 1’s suit is time-barred.
We sought supplemental briefing on the applicability of 28
U.S.C. § 1658(a)’s catch-all limitations period, which provides that
“[e]xcept as otherwise provided by law, a civil action arising under
an act of Congress enacted after” December 1, 1990 “may not be
commenced later than 4 years after the cause of action accrues.”
Having considered the parties’ briefs and heard oral argument, we
hold that § 1658(a) provides the applicable limitations period and
that, under that statute, MSPA Claims 1’s suit is untimely.
USCA11 Case: 21-11135 Date Filed: 08/10/2022 Page: 9 of 18
21-11135 Opinion of the Court 9
Accordingly, we affirm the district court’s order granting summary
judgment for Tower Hill.
II
Our task is two-fold. First, we must determine what limita-
tions period applies. Second, applying that limitations period, we
must decide whether MSPA Claims 1’s complaint was timely filed.
A
When “there is no federal statute of limitations expressly ap-
plicable” to a lawsuit, courts typically “‘borrow’ the most suitable
statute or other rule of timeliness from some other source.”
DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 158 (1983).
That’s the course the district court took, and the course that (for
the most part) the parties urge us to take. But because we can “bor-
row” a statute of limitations only when there is no applicable fed-
eral limitations period, we must first determine whether such a pe-
riod exists here. And because, for reasons we’ll explain, we con-
clude that one does, we have no cause to resort to a borrowing
analysis. Instead, we need only apply the statutory period that
Congress has provided.
Section 1658 provides that “[e]xcept as otherwise provided
by law, a civil action arising under an Act of Congress enacted af-
ter” December 1, 1990 “may not be commenced later than 4 years
after the cause of action accrues.” 28 U.S.C. § 1658(a); Jones v. R.R.
Donnelly & Sons Co., 541 U.S. 369, 375 (2004). The question for
us, then, is whether MSPA Claims 1’s “civil action” in this case
USCA11 Case: 21-11135 Date Filed: 08/10/2022 Page: 10 of 18
10 Opinion of the Court 21-11135
“aris[es] under an Act of Congress enacted after” December 1,
1990. We hold that it does.
For purposes of § 1658(a), “a cause of action ‘aris[es] under
an Act of Congress enacted’ after December 1, 1990—and therefore
is governed by § 1658’s 4-year statute of limitations—if the plain-
tiff’s claim against the defendant was made possible by a post-1990
enactment.” Jones, 541 U.S. at 382 (emphasis added) (quoting 28
U.S.C. § 1658(a)). The Medicare Secondary Payer Act’s private
cause of action in 42 U.S.C. § 1395y(b)(3)(A)—under which MSPA
Claims 1 sued here—was enacted in 1986, well before § 1658 was
enacted on December 1, 1990. So if that were the only “Act of Con-
gress” in play, § 1658(a) wouldn’t apply. See id. But Medicare Part
C—which created MAOs and granted them a statutory right to
seek reimbursable fees, thereby empowering them to sue under
the private cause of action—wasn’t enacted until 1997. Humana,
832 F.3d at 1235. Accordingly, because MSPA Claims 1’s cause of
action “was made possible by” Medicare Part C—“a post-1990 en-
actment”—§ 1658(a) provides the applicable limitations period.
Jones, 541 U.S. at 382.
MSPA Claims 1 and Tower Hill disagree. 1 They contend
that “[i]t makes no difference that the Balanced Budget Act of 1997
1 In the unique circumstances of this case, we think that we are well within
our discretion to reject the parties’ mistaken view of § 1658(a)’s applicability.
Although Tower Hill’s top-line argument was that § 1658(a) doesn’t apply, it
contended, in the alternative, that we should nonetheless affirm if we con-
cluded that it does. See Supp. Br. of Appellee at 10 (“[I]f the Court finds that
USCA11 Case: 21-11135 Date Filed: 08/10/2022 Page: 11 of 18
21-11135 Opinion of the Court 11
created Medicare Part C,” and with it, MAOs. Supp. Br. of Appel-
lant at 3; accord Supp. Br. of Appellee at 6. They say that MSPA
Claims 1’s cause of action wasn’t “made possible” by the 1997
amendment within the meaning of Jones because it merely allowed
“existing entities [to] apply a new label to themselves in 1997 by
offering a different type of plan.” Supp. Br. of Appellee at 6. Thus,
in their view, the 1997 amendment didn’t create any “new rights
and liabilities,” which is what they say Jones requires. Supp. Br. of
Appellant at 3.
That position, we think, is foreclosed by binding precedent.
We’ve held, several times over, that the 1997 amendment “cre-
ated” MAOs. Kingsway, 950 F.3d at 768; accord Humana, 832 F.3d
at 1235. In the same vein, we’ve said that Medicare Part C, adopted
as part of the 1997 amendment, granted MAOs “a statutory right
to charge a primary plan under the Medicare Advantage program.”
Kingsway, 950 F.3d at 771 (quotation omitted); see also 42 U.S.C.
§ 1395w-22(a)(4). And of course, it’s only “[b]ecause” of that
Section 1658 applies, it should affirm.”). And, of course, once a party properly
tees up an “issue or claim”—as Tower Hill did here by contending that MSPA
Claims 1’s suit was time-barred—we are “not limited to the particular legal
theories advanced” by that party, but rather “retain[] the independent power
to identify and apply the proper construction of governing law.” Kamen v.
Kemper Fin. Servs., 500 U.S. 90, 99 (1991). A fortiori, we are not limited to a
party’s primary theory when it also embraces an alternative ground for affir-
mance, as Tower Hill has done here. Thus, because Tower Hill asked us to
affirm under § 1658(a) if applicable, it is within our discretion to do so—and,
indeed, no party contends otherwise.
USCA11 Case: 21-11135 Date Filed: 08/10/2022 Page: 12 of 18
12 Opinion of the Court 21-11135
statutory right that an “MAO suffers an injury when a primary plan
fails to reimburse it.” Kingsway, 950 F.3d at 771.
To be clear, then, based on how we’ve previously described
the statutory framework, without Medicare Part C, an MAO like
Florida Healthcare would not (1) exist, (2) have a statutory right to
charge a primary payer, or (3) suffer any cognizable injury if the
primary payer didn’t reimburse it. See id. Given that binding
caselaw, it seems clear to us that Florida Healthcare’s—and, in
turn, its assignee MSPA Claims 1’s—cause of action was “made
possible by” Part C—“a post-1990 enactment.” Jones, 541 U.S. at
382. Accordingly, we hold that § 1658(a) provides the applicable
statute of limitations—and, therefore, that we need not (and may
not) engage in a borrowing analysis.
B
Having determined that § 1658(a) supplies the applicable
limitations period, we turn to the second question: Is MSPA
Claims 1’s suit timely? Section 1658(a), again, requires that a claim
be brought no “later than 4 years after the cause of action accrues.”
28 U.S.C. § 1658(a) (emphasis added). The pertinent question,
then, is when MSPA Claims 1’s cause of action “accrue[d]” for
§ 1658(a) purposes. The answer will take some unpacking.
When determining the start date for a statute of limitations,
courts typically choose between one of two rules. The first—
which we’ll call the “occurrence rule”—begins the limitations pe-
riod on the date that the violation of the plaintiff’s legal right
USCA11 Case: 21-11135 Date Filed: 08/10/2022 Page: 13 of 18
21-11135 Opinion of the Court 13
occurred. See SCA Hygiene Prods. Aktiebolag v. First Quality
Baby Prods., LLC, 137 S. Ct. 954, 962 (2017). The second—the “dis-
covery rule”—commences the limitations period on the date the
plaintiff discovered or should have discovered the cause of action.
See id. Under the occurrence rule, the limitations period for MSPA
Claims 1’s cause of action began running in 2012, rendering MSPA
Claims 1’s suit—filed six years later—untimely. Under the discov-
ery rule, however, the period at least arguably wouldn’t have
started running until 2015, when MSPA Claims 1 says it first
learned about Tower Hill’s settlement with D.L.—i.e., within
§ 1658’s four-year limitations period. Accordingly, the question of
which rule § 1658 employs is dispositive here.
“When interpreting limitations provisions, as always, we
begin by analyzing the statutory language.” Rotkiske v. Klemm,
140 S. Ct. 355, 360 (2019) (quotation omitted). If the statute is “un-
ambiguous, the first step of the interpretive inquiry is our last.” Id.And importantly here, “[i]f ‘there are two plausible constructions
of a statute of limitations,’ we generally ‘adopt the construction’”
that aligns with “‘the standard rule that the limitations period com-
mences when the plaintiff has a complete and present cause of ac-
tion.’” Id. (quoting Graham Cnty. Soil & Water Conservation Dist.
v. United States, 545 U.S. 409, 418–19 (2005)). Put more directly,
“in the absence of a clear Congressional directive or a self-conceal-
ing violation, the court should not graft a discovery rule onto a stat-
ute of limitations.” Foudy v. Miami-Dade County, 823 F.3d 590,
593–94 (11th Cir. 2016).
USCA11 Case: 21-11135 Date Filed: 08/10/2022 Page: 14 of 18
14 Opinion of the Court 21-11135
Whether the term “accrues” in § 1658(a) is ambiguous is,
well, not entirely clear. On the one hand, the Supreme Court has
indicated that it isn’t—“a right accrues,” the Court has said flatly,
“when it comes into existence.” Gabelli v. S.E.C., 568 U.S. 442, 448
(2013); see also Everly v. Everly, 958 F.3d 442, 461 (6th Cir. 2020)
(Murphy, J., concurring) (explaining that the Copyright Act’s “text
is unambiguous” in adopting the occurrence rule because “the stat-
ute’s ‘accrued’ language had a well-known ‘legal meaning’” when
Congress passed the law). On the other hand, this Court seems to
have agreed with the Eighth Circuit that the term “accrues,” as
used in § 1658(a), is ambiguous. See Foudy, 823 F.3d at 594 (refer-
ring to § 1658(a) as providing “ambiguous language in a catch-all
statute of limitations”); see also McDonough v. Anoka County, 799
F.3d 931, 942 (8th Cir. 2015) (“The meaning of the word ‘accrue’ is
thus not free of ambiguity.”). Because—right or wrong—we are
bound by Foudy’s holding in that respect, that resolves the first-
order question: the term “accrues” in § 1658(a) is ambiguous. See
United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008) (“Un-
der [the prior-panel-precedent] rule, a prior panel’s holding is bind-
ing on all subsequent panels unless and until it is overruled or un-
dermined to the point of abrogation by the Supreme Court or by
this court sitting en banc.”). 2
2Although Foudy’s “ambiguity” holding is in some tension with Supreme
Court precedent, it hasn’t been undermined to the point of abrogation. Ga-
belli, for instance, didn’t address § 1658 specifically and, therefore, is not
“clearly on point.” Archer, 531 F.3d at 1352.
USCA11 Case: 21-11135 Date Filed: 08/10/2022 Page: 15 of 18
21-11135 Opinion of the Court 15
One more word about Foudy: To be sure, the Court there went on to
say—in what, for reasons we’ll explain, we think was clearly dictum—that be-
cause Congress “left [§ 1658(a)’s] ambiguous language in a catch-all statute of
limitations, ‘Congress may have intended the trigger date for the date of ac-
crual to vary depending on the specific cause of action at hand.’” Foudy, 823
F.3d at 594 (emphasis added) (quoting McDonough, 799 F.3d at 943). It then
looked through § 1658(a) to the Driver’s Privacy Protection Act, which was at
issue there, determined that under the DPPA a “claim ‘accrues’ under
§ 1658(a) when the alleged violation occurs,” and affirmed the district court’s
dismissal on timeliness grounds. Id. at 594.
Foudy’s methodology—looking through § 1658(a) to the “specific
cause of action at hand”—flatly contradicts the Supreme Court’s instructions
about resolving an ambiguous limitations period. So long as § 1658(a) is “plau-
sibl[y] constru[ed]” to embrace an occurrence rule, that’s how we must con-
strue it, given “the standard rule that the limitations period commences when
the plaintiff has a complete and present cause of action.” Rotkiske, 140 S. Ct.
at 360.
Although we have concluded that we are bound by Foudy’s holding
that § 1658(a) is ambiguous, we aren’t wedded to its dictum about the means
of resolving that ambiguity. We are bound, of course, only by “a prior panel’s
holding.” Archer, 531 F.3d at 1352 (emphasis added). And a holding is a
court’s “determination of a matter of law pivotal to its decision.” Bryan A.
Garner, et al., The Law of Judicial Precedent 44 (2016) (quoting Holding,
Black’s Law Dictionary (10th ed. 2014)). Foudy actually held only (1) that the
term “accrues” in § 1658(a) is ambiguous and (2) that “the statute of limitations
for a DPPA claim ‘accrues’ under § 1658(a) when the alleged violation occurs.”
Foudy, 823 F.3d 594. Because the court’s tentative statement—that “Congress
may have” intended for us to look through to the underlying cause of action,
id. (emphasis added)—wasn’t “pivotal to its decision,” it wasn’t a holding and
we aren’t obliged to follow it, Garner, supra, at 44. That’s particularly so given
its inconsistency with the Supreme Court’s prescription in Rotkiske.
USCA11 Case: 21-11135 Date Filed: 08/10/2022 Page: 16 of 18
16 Opinion of the Court 21-11135
Accordingly, we must ask whether § 1658(a) is “plausibl[y]
constru[ed]” to reflect “the standard rule that the limitations period
commences when the plaintiff has a complete and present cause of
action.” Rotkiske, 140 S. Ct. at 360 (quotation omitted). For sev-
eral reasons, it is at the very least “plausible” that the term “ac-
crues” in § 1658(a) adopts the occurrence rule. Id. (quotation omit-
ted). First, under “common parlance a right accrues when it comes
into existence.” Gabelli, 568 U.S. at 448. Indeed, that definition of
“accrue” appears “in dictionaries from the 19th century up until to-
day.” Id.; see also, e.g., Accrue, Black’s Law Dictionary (11th ed.
2019) (defining “accrue” as “[t]o come into existence as an enforce-
able claim or right; to arise”); Accrue, Webster’s Third New Inter-
national Dictionary 13 (2002) (defining “accrue” as “to come into
existence as an enforceable claim: vest as a right”).
Second, that’s how the Supreme Court seems to understand
the term “accrues.” In Graham County, for instance, the Court
held that it was proper to borrow a state limitations period to gov-
ern a retaliatory action under the False Claims Act. 545 U.S. at 422.
In reaching that conclusion, the Court held that the “analogous
state statutes of limitations virtually all start to run when the cause
of action accrues.” Id. at 419. And it defined the phrase “when the
cause of action accrues” to mean “when the retaliatory action oc-
curs.” Id. (emphasis added); accord Rotkiske, 140 S. Ct. at 360 (im-
plying that “accrues” is synonymous with “when a plaintiff has a
complete and present cause of action”).
USCA11 Case: 21-11135 Date Filed: 08/10/2022 Page: 17 of 18
21-11135 Opinion of the Court 17
Third, and finally, § 1658’s structure indicates that its subsec-
tion (a) embodies an occurrence rule. Section 1658(a)’s statutory
neighbor, § 1658(b)(1), includes an express discovery rule for cer-
tain claims. “The most natural reading” of § 1658(a), then, “is that
Congress implicitly excluded a general discovery rule by explicitly
including one” in § 1658(b)(1). TRW Inc. v. Andrews, 534 U.S. 19,
28 (2001). 3
* * *
Because it is at least “plausible” that the term “accrues” in
§ 1658(a) incorporates an occurrence rule—in fact, and setting pre-
sumptions aside, we think that’s the best interpretation—that is
3 To be sure, the Eighth Circuit distinguished TRW because, it said, “[u]nlike
the provision in TRW . . . , the special standard in § 1658” that introduces the
discovery rule “includes an express occurrence rule as well.” McDonough,
799 F.3d at 943. It concluded, therefore, that Congress demonstrated that it
knew how to include an express discovery and occurrence rule in § 1658(b),
“and yet chose to preserve the general rule with the more ambiguous lan-
guage of § 1658(a).” Id.
It’s true that § 1658(b) expressly incorporates both a discovery rule (“2
years after the discovery”) and an occurrence rule (“5 years after such viola-
tion”). But, even if § 1658(a) is more “general” or ambiguous, “we should
adopt the construction” that reflects the “default rule” that “Congress legis-
lates against the standard rule that the limitations period commences when
the plaintiff has a complete and present cause of action.” Graham County, 545
U.S. at 418. The Eighth Circuit failed to do business with that principle, opting
instead to fashion a rule under which a court can peek through to the under-
lying cause of action. McDonough, 799 F.3d at 943. We decline to adopt that
approach here in the face of Supreme Court precedent directly to the contrary.
USCA11 Case: 21-11135 Date Filed: 08/10/2022 Page: 18 of 18
18 Opinion of the Court 21-11135
how we interpret it. Therefore, MSPA Claims 1’s cause of action
accrued in 2012 when MSPA Claims 1’s assignor, Florida
Healthcare, paid D.L.’s medical bills and became entitled to reim-
bursement through the Medicare Secondary Payer Act. Because
that was more than four years before MSPA Claims 1 filed suit in
2018, its suit is not timely under 28 U.S.C. § 1658(a).
AFFIRMED.