Barbara D. Richardson, in Her Capacity As Receiver of Nevada Health Co-Op. v. United States

United States Court of Appeals
for the Federal Circuit
______________________
BARBARA D. RICHARDSON, IN HER CAPACITY
AS RECEIVER OF NEVADA HEALTH CO-OP.,
Plaintiff-Appellee
v.
UNITED STATES,
Defendant-Appellant
______________________
2022-1520
______________________
Appeal from the United States Court of Federal Claims
in No. 1:18-cv-01731-MHS, Judge Matthew H. Solomson.
______________________
Decided: August 9, 2024
______________________
MARK F ERRARIO, Greenberg Traurig, LLP, Las Vegas,
NV, argued for plaintiff-appellee. Also represented by
T AMI D. COWDEN, D ONALD J. P RUNTY ; MELISSA P AIGE
P RUSOCK, MICHAEL J. SCHAENGOLD, Washington, DC.
T ERRANCE MEBANE, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for defendant-appellant. Also repre-
sented by BRIAN M. BOYNTON, RUTH A. HARVEY , K IRK
T HOMAS MANHARDT , P HILLIP SELIGMAN.
______________________
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RICHARDSON v. US 2
Before L OURIE, REYNA , and CUNNINGHAM , Circuit Judges.
CUNNINGHAM , Circuit Judge.
The government appeals from a decision of the United
States Court of Federal Claims granting summary judg-
ment in favor of Barbara D. Richardson, the Nevada Com-
missioner of Insurance, acting in her position as the
receiver (the “Receiver”) for the Nevada Health CO-OP
(“Nevada Health”). Richardson v. United States, 157 Fed.
Cl. 342 (2021) (“Decision”). The Court of Federal Claims
held that the government improperly withheld statutory
payments it owed Nevada Health. Decision at 347. The
trial court also held, sua sponte, that the government can-
not—in the future—invoke 31 U.S.C. § 3728 to withhold
these payments owed. Id. at 374–75. For the reasons be-
low, we affirm the court’s judgment in favor of Nevada
Health on its claims for withheld payments. However, we
hold that the trial court exceeded its jurisdiction when it
purported to address § 3728, and we vacate that portion of
its order.
I. BACKGROUND
This case concerns several provisions of the Patient
Protection and Affordable Care Act (the “ACA”), Pub. L.
No. 111-148, 124 Stat. 119 (2010) (codified as amended in
scattered sections of 26 U.S.C. and 42 U.S.C.). There is a
series of programs under which the government distributes
payments to certain health insurers. These programs in-
clude the reinsurance, risk corridors, and risk adjustment
programs, all of which are “aimed at stabilizing health in-
surance premiums.” Conway v. United States, 997 F.3d
1198, 1202 (Fed. Cir. 2021); see also 42 U.S.C. §§ 18061–
18063. Another related ACA program is the “Cost Sharing
Reduction” program, under which the Department of
Health and Human Services (“HHS”) compensates insur-
ers for reducing certain costs for individuals below desig-
nated household income thresholds. See 42 U.S.C.
§ 18071(c)(1), (c)(3); see also Decision at 349.
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RICHARDSON v. US 3
This case also involves loans issued under the ACA’s
Consumer Operated and Oriented Plan (“CO-OP”) pro-
gram. 42 U.S.C. § 18042(a). Section 18042(b)(1) directs
HHS to issue two types of loans to “persons applying to be-
come qualified nonprofit health insurance issuers”:
(A) loans to assist with start-up costs (“start-up loans”);
and (B) grants to assist in meeting state solvency require-
ments (“solvency loans”).1 Id. This case concerns a start-
up loan issued under the CO-OP program.
Nevada Health’s predecessor in interest, Hospitality
Health, Ltd. (“Hospitality”), was a Nevada health mainte-
nance organization that received two loans as part of the
CO-OP program. Decision at 349; J.A. 63. In May 2012,
Hospitality entered into a loan agreement with the Centers
for Medicare & Medicaid Services (“CMS”), an HHS
agency, including a start-up loan of $17,105,047 (“Start-Up
Loan”) and a solvency loan of $48,820,349 (“Solvency
Loan”). Decision at 349; J.A. 63. The loans were subse-
quently assigned to Nevada Health. Decision at 349; J.A.
135–36.
In 2015, Nevada Health “experienced significant finan-
cial distress” and was declared “unsound” by state regula-
tors. Decision at 350; J.A. 2021. State regulators ordered
that Nevada Health cease Nevada insurance operations,
and the Nevada Commissioner of Insurance filed a petition
in state court to be appointed as receiver for Nevada
Health. Decision at 350; J.A. 2017. Shortly thereafter, the
state court issued a permanent injunction and order ap-
pointing the Commissioner of Insurance as Receiver.
1 Both the loans and grants were to be repaid, id.
§ 18042(b)(3), and the Final Rule implementing the pro-
gram refers to both as “loans.” ACA; Establishment of Con-
sumer Operated and Oriented Plan (CO-OP) Program, 76
Fed. Reg. 77392, 77394 (Dec. 13, 2011) (“Final Rule”). Ac-
cordingly, we refer to both types of assistance as loans here.
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RICHARDSON v. US 4
Decision at 350; J.A. 2067–68. The court ordered that all
claims against Nevada Health or its assets “must be sub-
mitted to the Receiver . . . to the exclusion of any other
method” of resolution. J.A. 2071; Decision at 351.
In December 2015, CMS terminated the loan agree-
ment, citing the suspension of Nevada Health’s operating
license and prohibition from offering health insurance in
2016. J.A. 2081; Decision at 351. CMS then placed an “ad-
ministrative hold” on payments due to Nevada Health, and
starting in August 2016, CMS began to “offset payments
due to [Nevada Health] with amounts [Nevada Health] al-
legedly owed the government pursuant to the Start-Up
Loan.”2 Decision at 351–52; J.A. 2084–85.
In September 2016, the state court placed Nevada
Health in liquidation. Decision at 352; J.A. 2098–99. In
October 2016, it approved the receivership claims proce-
dure with a deadline of April 28, 2017 to file claims. Deci-
sion at 352; J.A. 2102–03; J.A. 2098–99. The government
filed a Proof of Claim seeking repayment of the loans, as-
serting they were “entitled to treatment as secured claims
to the extent they are subject to set-off by a claim of [Ne-
vada Health] against the United States.” Decision at 352;
J.A. 2107–08.
In June 2017, the Receiver denied the government’s
claim, finding that:
2 “The right of setoff (also called ‘offset’) allows enti-
ties that owe each other money to apply their mutual debts
against each other, thereby avoiding the absurdity of mak-
ing A pay B when B owes A.” Citizens Bank of Md. v.
Strumpf, 516 U.S. 16, 18 (1995) (internal quotation marks
and citation omitted). The term “offset” is interchangeable
with “setoff.” See Offset, Black’s Law Dictionary (9th ed.
2009); Decision at 347 n.1.
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RICHARDSON v. US 5
(1) pursuant to state law and the Loan Agreement,
the government’s claim was subordinate in priority
to policyholder and administrative expense claims;
(2) [Nevada Health’s] estate was not anticipated to
be sufficient to satisfy even claims that had a
higher priority than the government’s claim; and
(3) the government’s claimed setoff would violate
the Receivership Order.
Decision at 352 (citing J.A. 2114–17). The notice explained
that if the government did not appeal according to the des-
ignated process, the claim would become “final and non-ap-
pealable.” J.A. 2116; Decision at 352. The government did
not appeal. Decision at 352.
In November 2018, the Receiver filed suit in the Court
of Federal Claims to recover amounts allegedly owed to Ne-
vada Health under the ACA’s risk corridor, reinsurance,
risk adjustment, and Cost Sharing Reduction programs.
Id. at 347, 352; J.A. 150, 185–90. The Receiver alleged that
the government’s offsets for Nevada Health’s obligations
under the Start-Up Loan were improper and breached the
loan agreement. J.A. 190–92. The government filed a mo-
tion to dismiss, reasserting its right to offset amounts owed
under the Start-Up Loan, J.A. 210, 220, and the Receiver
filed a cross-motion for summary judgment. J.A. 939; De-
cision at 347.
In November 2021, the Court of Federal Claims
granted the Receiver’s motion for summary judgment, find-
ing the government liable for each type of payment. Deci-
sion at 354. The court held the government’s offsets were
“precluded by: (1) the parties’ Loan Agreement; and (2) Ne-
vada state law as implemented via the state receivership
and liquidation proceedings, in which the government par-
ticipated.” Id. at 355. The court also held that the govern-
ment may not invoke 31 U.S.C. § 3728––which enables
Treasury to offset judgments against the government
against other debts––to reassert offsets, even though “the
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RICHARDSON v. US 6
parties have not addressed that statute in this case.” Id.
at 374–75. The court entered final judgment in favor of the
Receiver. J.A. 49.
The government timely appealed. We have jurisdiction
under 28 U.S.C. § 1295(a)(3).
II. S TANDARD OF REVIEW
We review the Court of Federal Claims’ grant of sum-
mary judgment de novo. Shell Oil Co. v. United States, 896
F.3d 1299, 1314 (Fed. Cir. 2018). We review conclusions of
law by the Court of Federal Claims de novo. Starr Int’l Co.
v. United States, 856 F.3d 953, 963 (Fed. Cir. 2017). “Con-
tract interpretation is a question of law, which we re-
view de novo.” Nova Grp./Tutor-Saliba v. United States,
87 F.4th 1375, 1379 (Fed. Cir. 2023).
III. D ISCUSSION
On appeal, the government asserts (1) “[t]he trial court
erred by holding that HHS explicitly contracted away its
offset rights in Section 3.4 of the Loan Agreement”; (2) the
government is “not collaterally estopped from asserting its
offset rights in federal court”; and (3) the trial court erred
by addressing 31 U.S.C. § 3728. Appellant’s Br. 18. As ex-
plained below, we hold that the government waived its off-
set rights by subordinating the Start-Up Loan through the
loan agreement. Accordingly, we do not reach the issue of
whether the government was collaterally estopped from as-
serting its offset rights in federal court.3 Finally, we hold
the Court of Federal Claims exceeded its jurisdiction by
3 We need not reach this issue in order to affirm. See
Oral Arg. 22:33–22:42, https://oralargu-
ments.cafc.uscourts.gov/default.aspx?fl=22-1520_0111202
4.mp3 (Appellee agreeing we need not reach the latter is-
sue to affirm).
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RICHARDSON v. US 7
addressing 31 U.S.C. § 3728 and vacate this portion of its
order.
A.
First, we address whether the government was entitled
to offset the balance owed on the Start-Up Loan against
statutory payments it owed Nevada Health under the ACA.
The government asserts that both federal law and Nevada
law create a right to offset and that the “Loan Agreement
expressly preserved HHS’s offset rights in the event of a
default.” Appellant’s Br. 20–21. We disagree. By subordi-
nating its loans under Section 3.4 of the agreement, the
government relinquished its ability to assert offset rights
before senior claimants are satisfied.
A party may contract around the right to offset. See id.
at 20 (conceding “offset rights can be waived”);4 Applied
Cos. v. United States, 144 F.3d 1470, 1476 (Fed. Cir. 1998)
(acknowledging contract provisions may bar exercise of set-
offs). We conclude the parties did so here. We start with
the plain language of the contract. Section 3.4 provides
that both loans “have a claim on cash flow and reserves of
Borrower that is subordinate to (a) claims payments,
(b) Basic Operating Expenses, and (c) maintenance of re-
quired reserve funds while Borrower is operating as a CO-
OP under State Insurance Laws.” J.A. 63. Borrower was
defined as Hospitality, J.A. 50, 58, which is the predecessor
in interest to Nevada Health. Under the plain text of this
provision, the government’s claim under the loan agree-
ment is subordinate to claims payments and Basic Operat-
ing Expenses. The Court of Federal Claims further found
4 Although the government suggests that Nevada
law requires offsets of mutual debts, Appellant’s Br. 20 (cit-
ing Nev. Rev. Stat. § 696B.440(1)), it concedes that the par-
ties did waive offset rights for at least the Solvency Loan.
Id. at 22–23.
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RICHARDSON v. US 8
that the parties agreed “that all available funds [in Nevada
Health’s estate] will be exhausted by the superior creditors
delineated in the Section 3.4.” Decision at 366; see also J.A.
1693–94 (Receiver’s declaration stating that Nevada
Health “has never had any excess surplus assets through-
out its receivership”). Allowing the government to assert
its offsets would in effect elevate its claim to Nevada
Health’s cash flows above that of these superior creditors,
directly contradicting Section 3.4. Accordingly, we hold
that the government may not withhold payments it owed
to Nevada Health to jump ahead of policyholders before
these superior creditors are fully satisfied.
The government challenges this conclusion on several
bases. The government first asserts that “Section 3.4 does
not address circumstances of default,” Appellant’s Br. 30,
and “cannot be read to override the specific provisions of
the Loan Agreement that address default.” Id. at 25. The
government notes that “the text of Section 3.4 does not
mention ‘default,’ ‘bankruptcy’ (or insolvency), ‘senior’ or
‘junior’ creditors, or subordinated damages claims.” Id.
However, the term “subordinate” itself refers to creditor
priority, which is critical in default or bankruptcy. For ex-
ample, a “debt-subordination agreement” is defined as “[a]
contract under which a junior creditor must wait for pay-
ment until all the debtor’s existing senior creditors are
paid.” Subordination Agreement, Black’s Law Dictionary
(11th ed. 2019) (emphases added). Under a subordination
agreement, “one creditor (the junior creditor) agrees that,
in the event of a default or bankruptcy, another creditor
(the senior creditor) will receive repayment in full before
the junior creditor receives payment on its loans.” In re Se.
Banking Corp., 156 F.3d 1114, 1118 (11th Cir. 1998) (em-
phases added).
The government next argues that the phrase “while
[Nevada Health] [Borrower] is operating as a CO-OP under
State Insurance Laws” applies to the entire provision re-
lating to “claim on cash flow and reserves.” Appellant’s Br.
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RICHARDSON v. US 9
27 (first insertion in original). Thus, the government ar-
gues Section 3.4 “operates as a security provision that ex-
presses the parties’ agreement that Nevada Health
prioritize the payments required for its continued opera-
tions over repayment of the loans while Nevada Health is
operating as a CO-OP.” Id. at 26. The government is in-
correct.
The government’s “reading disregards—indeed, is pre-
cisely contrary to—the grammatical ‘rule of the last ante-
cedent,’ according to which a limiting clause or phrase . . .
should ordinarily be read as modifying only the noun or
phrase that it immediately follows.” Barnhart v. Thomas,
540 U.S. 20, 26 (2003). Here, the phrase “while Borrower
is operating as a CO-OP” immediately follows “(c) mainte-
nance of required reserve funds,” J.A. 63, and “should ordi-
narily be read as modifying only” that clause. Barnhart,
540 U.S. at 26. Accordingly, the government’s claim is sub-
ordinated to the insurer’s obligation to maintain required
reserve funds only while Nevada Health is operating as a
CO-OP. However, the government’s claim remains subor-
dinate to “claims payments” and “Basic Operating Ex-
penses” whether or not Nevada Health continues to operate
as a CO-OP.
Although the “last antecedent rule” is a “guideline,” not
an absolute rule, the surrounding language in the agree-
ment supports this construction. See Finisar Corp. v. Di-
recTV Grp., Inc., 523 F.3d 1323, 1336 (Fed. Cir. 2008).
Claim payments and basic operating expenses are the first
debts that must be paid from the estate of an insurer upon
liquidation. See Nev. Rev. Stat. § 696B.420(1)(a)–(b). By
contrast, the obligation to maintain required reserve funds
applies only while an insurer offers insurance. See J.A. 62
(defining “State Reserve Requirements” as requirements
the borrower must meet to “deliver[] . . . health insurance
under a CO-OP . . . and to issue” plans); J.A. 63.
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RICHARDSON v. US 10
The loan agreement’s reference to “reserves” bolsters
this conclusion. J.A. 63 (“claim on cash flow and reserves”).
The purpose of reserves and risk-based capital is “to ensure
that [insurers] will be able to meet future obligations they
have contractually promised their enrollees.” Final Rule,
76 Fed. Reg. at 77409; see also Reserve, Black’s Law Dic-
tionary (9th ed. 2009) (“Something retained or stored for
future use; esp., a fund of money set aside by a bank or an
insurance company to cover future liabilities.”). Reserves
thus help satisfy claim payments owed if an insurer would
otherwise be unable to pay, as is the case in insolvency. See
Insolvency, Black’s Law Dictionary (9th ed. 2009) (insol-
vency is “[a]lso termed failure to meet obligations”); Nev.
Rev. Stat. § 696B.110 (defining insolvency). In sum, Sec-
tion 3.4 subordinates the government’s interest below that
of claim payments and basic operating expenses even in in-
solvency. The government may not offset its statutory ob-
ligations against the Start-Up Loan to jump ahead of these
creditors.
The government next asserts that Section 19.12 of the
contract “expressly preserved HHS’s offset rights in the
event of a default” and gave HHS the “absolute right to off-
set.” Appellant’s Br. 21. It argues the “notwithstanding”
clause “override[s] conflicting provisions of any other sec-
tion.” Id. (citation omitted). As explained below, we disa-
gree with both assertions.
Section 19.12 titled “Right of Set-Off” states:
Notwithstanding any other provisions of this
Agreement to the contrary, in the event any Event
of Default is not cured or another accommodation
permissible under this Agreement is not otherwise
reached within applicable notice and cure periods,
Lender shall have at its disposal the full range of
available rights, remedies and techniques to collect
delinquent debts, such as those found in the Fed-
eral Claims Collection Standards and applicable
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RICHARDSON v. US 11
Treasury regulations, as appropriate, including de-
mand letters, administrative offset, salary offset,
tax refund offset, private collection agencies, cross-
servicing by the Treasury, and litigation.
J.A. 94.
Section 19.12 does not guarantee an unqualified right
to offset payments owed. The provision allows the lender
the “full range of available rights, remedies and techniques
. . . as appropriate.” J.A. 94 (emphases added). This provi-
sion does not create any rights––it “preserve[s]” existing
rights. Appellant’s Br. 21. As the government explained
at oral argument, “‘[A]vailable’ is just a general reference
to the rights, remedies, and techniques that are typically
available to the government, and ‘appropriate’ just makes
it clear that the government is entitled to use . . . whatever
right is appropriate to those circumstances.” Oral Arg.
2:55–3:08 (emphases added). Whether a right is available
and appropriate to the circumstances necessarily depends
on other provisions of the contract. Here, because the gov-
ernment was not entitled to payment before claims and op-
erating expenses were satisfied, the offset was not an
available right.
The subordination clause is not in conflict with Section
19.12. Rather, this section helps establish the circum-
stances in which offset rights are appropriate. Cf. Cisneros
v. Alpine Ridge Grp., 508 U.S. 10, 18 (1993) (“[T]he use of
such a ‘notwithstanding’ clause clearly signals the drafter’s
intention that the provisions of the ‘notwithstanding’ sec-
tion override conflicting provisions of any other section.”)
(emphasis added). The fact that that the provision dis-
cusses “rights, remedies and techniques” generally––in-
cluding offsets, litigation, and collection agencies––further
undercuts the government’s argument that this clause ex-
presses the parties’ intent to effectuate an “absolute right
to offset.” J.A. 94; Appellant’s Br. 21; see also 45 C.F.R.
§ 156.520(d) (“Loan recipients that fail to make loan
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RICHARDSON v. US 12
payments [as required] . . . will be subject to any and all
remedies available to CMS under law to collect the debt.”).
The government is also incorrect that the interpreta-
tion that we adopt renders Section 19.12 meaningless. See
Appellant’s Br. 28. We hold only that under Section 3.4,
the government may not assert offset rights to jump ahead
of claims expressly made senior under that provision. The
right to offset may be available and appropriate in circum-
stances other than the case before us. For example, we do
not reach whether the government could assert offset
rights if there were sufficient proceeds to satisfy the classes
of claims mentioned in Section 3.4. In sum, we hold that
Section 19.12 does not preserve offset rights in insolvency
that were otherwise relinquished by Section 3.4.
Lastly, the government cites a 2013 amendment to the
Solvency Loan—which expressly waived offset rights for
that loan—as evidence that the Start-Up Loan “remained
subject to offset” under the unamended original agreement.
Appellant’s Br. 22–23; see also Appellant’s Reply Br. 7; J.A.
138–45. We are unpersuaded. The 2013 amendment to the
Solvency Loan does not alter what the government agreed
to under Section 3.4 of the original agreement that governs
the Start-Up Loan. The government is also incorrect that
our interpretation of Section 3.4 renders the amendment
superfluous. See Appellant’s Reply Br. 6–7. As explained,
we hold only that Section 3.4 precludes the government
from asserting an offset ahead of claims expressly ad-
dressed in that provision. By contrast, the amendment
made clear that the Solvency Loan may never be the basis
of an offset, regardless of the seniority of other claims. See
J.A. 144 (stating the Solvency Loan “may not be offset
. . . with respect to any liability or obligation owed to Bor-
rower”) (emphasis added). The fact that the parties
amended the Solvency Loan to completely waive offset
rights does not imply that the original agreement did not
partially relinquish these rights. Accordingly, the
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RICHARDSON v. US 13
amendment does not compel us to reconsider our interpre-
tation of the original loan agreement.
B.
Next, we address the trial court’s determination that
the government may not invoke 31 U.S.C. § 3728 to reas-
sert the challenged offsets. Decision at 374–76. The court
reached this issue “in the interest of avoiding future—and,
in the Court’s view, unnecessary—proceedings,” even
though it acknowledged that “the parties have not ad-
dressed that statute in this case.” Id. at 374. We hold that
the trial court exceeded its jurisdiction by ruling on this
issue.
Under 31 U.S.C. § 3728(a), “[t]he Secretary of the
Treasury shall withhold paying that part of a judgment
against the United States Government presented to the
Secretary that is equal to a debt the plaintiff owes the Gov-
ernment.” If the plaintiff does not agree to the offset, the
Secretary shall “have a civil action brought if one has not
already been brought.” 31 U.S.C. § 3728 (b)(2). The Court
of Federal Claims held “that the government is not entitled
to collect any amounts under the Loan Agreement until su-
perior creditors, specified in Section 3.4, are satisfied and
the Nevada liquidation process permits the government to
recover. Until then, there is nothing for the Treasury to
setoff, and any civil action by the government to recover—
following the issuance of a judgment in this case—would be
barred as res judicata.” Decision at 375.
Under the Tucker Act, the jurisdiction of the Court of
Federal Claims is limited to claims for monetary relief,
with a few narrow exceptions inapplicable here. 28 U.S.C.
§ 1491; Roth v. United States, 378 F.3d 1371, 1384 (Fed.
Cir. 2004). The court lacks the “general authority” to grant
such declaratory judgment relief. See, e.g., Nat’l Air Traffic
Controllers Ass’n v. United States, 160 F.3d 714, 716–17
(Fed. Cir. 1998). The government has never asserted the
right to offset payments owed under 31 U.S.C. § 3728 in the
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present litigation. See Decision at 374–75. Here, the
court’s determination that a hypothetical civil suit by the
government under 31 U.S.C. § 3728 would be barred by the
doctrine of res judicata exceeded the court’s limited juris-
diction.
The Receiver’s arguments do not persuade us the Court
of Federal Claims had jurisdiction. Accordingly, we vacate
this portion of the order without addressing the merits of
this issue that was never raised by the parties below. See
Plan. Rsch. Corp. v. United States, 971 F.2d 736, 743 (Fed.
Cir. 1992) (vacating a Board of Contract Appeals holding
that “went beyond its . . . jurisdiction”).
IV. CONCLUSION
We have considered the government’s remaining argu-
ments and find them unpersuasive. For the above reasons,
we affirm the judgment of the Court of Federal Claims in
favor of the Receiver. We vacate that portion of the court’s
order purporting to address the government’s ability to off-
set any judgment under 31 U.S.C. § 3728.
AFFIRMED-IN-PART, VACATED-IN-PART
COSTS
No costs.
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