INGHAM REGIONAL MEDICAL CENTER v. United States

In the United States Court of Federal Claims No. 13-821 (Filed: 17 June 2026) * ************************************** INGHAM REG’L MEDICAL CENTER, * n/k/a MCLAREN GREATER LANSING, * et al., * * Plaintiffs, * * v. * * THE UNITED STATES, * * Defendant. * * ************************************** Alexander J. Pires, Jr., Pires Cooley, of Washington, DC, with whom was Gregory A. Brodek, Duane Morris LLP, of Bangor, ME, for plaintiffs. A. Bondurant Eley, Senior Litigation Counsel, with whom were Steven J. Gillingham, Assistant Director, Patricia M. McCarthy, Director, Commercial Litigation Branch, and Brett A. Shumate, Assistant Attorney General, Civil Division, U.S. Department of Justice, all of Washington, DC, for the government. OPINION AND ORDER HOLTE, Judge. This case concerns a dispute between six hospitals and the Department of Defense Military Health System about the interpretation of what the Federal Circuit has deemed an “extremely strange” contract for reimbursements of outpatient radiology services rendered between 2003 and 2009. 1 In 2011, after a study revealed TRICARE underpaid hospitals compared to Medicare for outpatient radiology services, the government entered contracts offering discretionary payments to reimburse plaintiffs. On 21 January 2026, after twelve years of litigation and one Federal Circuit appeal, the Court heard oral argument regarding the parties’ * This Opinion was originally filed under seal on 11 June 2026 pursuant to the protective order in this case. The Court provided the parties an opportunity to review this Opinion for proprietary, confidential, or other protected information and submit proposed redactions by 18 June 2026 at 5:00 p.m. On 16 June 2026, the parties confirmed they do not seek redaction of the Opinion. The Opinion is now reissued for publication. 1 See 9 June 2022 Oral Arg. Tr. at 161:7–13, ECF No. 259 (“THE COURT: So the Federal Circuit panel, when the case was argued, characterized this agreement as extremely strange. [THE GOVERNMENT]: That is accurate. It is extremely strange. THE COURT: It is extremely strange? [THE GOVERNMENT]: It is.”). -1- cross motions for summary judgment on plaintiffs’ only surviving breach of contract claim—the government’s duty to extract, analyze, and adjust line items from its database. For the reasons detailed in this opinion, the Court grants-in-part and denies-in-part the government’s Motion for Summary Judgment and grants-in-part and denies-in-part plaintiffs’ Motion for Partial Summary Judgment. I. Relevant Background The Court previously reviewed the relevant factual and procedural history in its 2022 Opinion and Order on Summary Judgment, as follows: A. Factual History TRICARE is a “military health care system” which “provides medical and dental care for current and former members of the military and their dependents.” Ingham Reg’l Med. Ctr. v. United States, 874 F.3d 1341, 1342 (Fed. Cir. 2017). TRICARE Management Activity (“TMA”), a “field office in the Defense Department [‘DoD’],” managed the TRICARE system. 2 N. Mich. Hosps., Inc. v. Health Net Fed. Servs., LLC, 344 F. App’x 731, 734 (3d Cir. 2009). Hospitals providing TRICARE services are reimbursed according to DoD guidelines. In 2001, Congress amended the TRICARE statute to require DoD to follow Medicare rules when reimbursing outside healthcare providers. Ingham Reg’l Med. Ctr., 874 F.3d at 1343 (citing 32 C.F.R. § 199.14). Due to “the lack of TRICARE cost report data comparable to Medicare’s” figures, TMA, however, found it impracticable to immediately adopt Medicare reimbursement rules. Id. (citation omitted). To facilitate transition to Medicare rules, in 2005, DoD issued a Final Rule “which provided a more detailed explanation of the payment rules for hospital-based outpatient services.” Id. The rule specified “[f]or most outpatient services, hospitals would receive payments ‘based on the TRICARE-allowable cost method in effect for professional providers or the [Civilian Health and Medical Program of the Uniformed Services] (“CHAMPUS”) Maximum Allowable Charge (CMAC).’” Id. (citation omitted). The TRICARE-allowable cost method “applied until 2009, when TRICARE introduced a new payment system for hospital outpatient services that was similar to the Medicare [Outpatient Prospective Payment System (‘OPPS’)] rules.” Id. On 23 January 2007, two hospitals “filed their first amended complaint in the [United States District Court for the District of Delaware] asserting claims for breach of contract implied in fact and breach of quasi-contract/unjust enrichment” against TRICARE’s intermediary-managed care support contractors (“intermediaries” [or “MCSCs”]). N. Mich. Hosps., Inc., 344 F. App’x at 735. “The Hospitals alleged [the intermediaries] refused to pay the Hospitals’ facility charges for certain outpatient services rendered by the Hospitals to TRICARE beneficiaries, despite the fact that the Hospitals submitted claims to [the intermediaries] which included such charges.” Id. (footnote omitted). The district 2 TMA is now known as the Defense Health Agency. -2-  court dismissed the complaint because the hospitals failed to first exhaust their administrative remedies, id. at 739, and the Third Circuit affirmed. Id. at 740. The Third Circuit determined, “Without question, the regulations state that certain services are reimbursed based on a maximum allowable charge calculation and that facility charges, which are not subject to a maximum allowable charge, are paid as billed.” Id. at 737 (citing 32 C.F.R. § 199.14(a)(5)(i)–(xi)). The Third Circuit added “the regulations are equally clear that the Hospitals are not allowed to simply submit bills for any amount and then claim that they are entitled to reimbursement for the full amount charged because any amount above the CMAC represents their ‘facilities’ expenses.” Id. In dicta, the court stated, “The dispute at issue is not a purely legal one, but rather requires factual determinations such as whether expenses that qualify as facility charges were incurred, whether such charges were properly billed, and how much is owed if they were incurred and properly billed.” N. Mich. Hosps., Inc., 344 F. App’x at 737. “Therefore, what is required by the underlying dispute in this case is an application of the TRICARE regulations to the Hospitals’ specific claims for reimbursement.” Id. After the Third Circuit affirmed, “the parties to that suit exchanged email communications regarding further steps and potential readjustment with TRICARE.” [14 Jan. 2020 Op. & Order] at 3 n.2, ECF No. 125. In response to hospital complaints, TRICARE hired Kennell and Associates, a consulting firm, to “undertake a study [(‘Kennell study’)] of the accuracy of its payments to the hospitals.” Ingham Reg’l Med. Ctr., 874 F.3d at 1343–44. The Kennell study “compared CMAC payments to the payments that would have been made using Medicare payment principles, and determined that DoD ‘(1) underpaid hospitals for outpatient radiology but, (2) correctly paid hospitals for all other outpatient services.’” Id. at 1344 (emphasis removed). From the Kennell study findings, “DoD created a discretionary payment process [(‘DPP’)],” and, on 25 April 2011, DoD notified hospitals by letter of the process for them to “request a review of their TRICARE reimbursements (the ‘Letter’).” 3 Id. The DoD also “published a document titled ‘NOTICE TO 3 The Letter states, in pertinent part: For purposes of this process, DoD will treat your submission as an untimely but discretionary appeal under 32 Code of Federal Regulations 199.10(a)(5) and (c), provided it is received no later than 60 days from the date of this letter. Based on the request, your hospital may be paid an adjustment, subject to the availability of appropriations, in return for your acceptance of DoD’s offer of additional payment based on criteria established by the agency. . . . In order to bring closure to any concerns regarding payment of hospital outpatient services under the TRICARE regulation prior to implementation of OPPS, payment of the discretionary adjustments will also be contingent on the execution of a release by the hospital of any hospital outpatient service claims against the agency, TRICARE beneficiaries, and TRICARE [intermediaries]. We value your hospital as a partner in this effort and remain committed to working with you to complete the analysis of claims data and determine if any additional payments may be allowed. Gov’t’s 26 August 2021 MSJ (“Gov’t’s First MSJ”), App’x at A1–A2 (DPP Contract Letter), ECF No. 203-1. -3- HOSPITALS OF POTENTIAL ADJUSTMENT TO PAST PAYMENTS FOR OUTPATIENT RADIOLOGY SERVICES’ (the ‘Notice’)” on the TRICARE website. Def.’s MSJ App. at A3–A9 [hereinafter DPP Contract Notice], ECF No. 203-1. 4 Like the Letter, the Notice stated any submission would be treated as “an untimely but discretionary appeal under 32 CFR 199.10(a)(5) and (c) provided it is received no later than 23 June 2011.” Id. at A7. The Notice also indicated: “Based on the request and subject to the availability of funds, each hospital will receive adjusted payments in return for acceptance of DoD’s offer of additional payment based on criteria established by the agency,” and “payment of the discretionary adjustments will also be conditioned on the execution of a release by the hospital of any hospital outpatient service claims against the agency, TRICARE beneficiaries and the TRICARE [intermediaries].” Id. The Notice described a nine-step methodology by which hospitals could “request an analysis of their claims data for possible discretionary adjustment” and to “govern the review of payments for hospital outpatient radiology services and payment of any discretionary net adjustments.” Id. Step 1 instructed hospitals to “submit[] a request for analysis of their claims data for hospital outpatient department radiology charges” for the period before TRICARE OPPS took effect. Id. Step 2 in relevant part expounded on submitting claims data, contact information, and questions. The second step described the process for determining necessary claims data: “[H]ospital[s] submit[] data with [their] name, address, zip code, Tax ID number, TRICARE sub ID number, the 4 The Notice explained in relevant part: The TRICARE regulation provisions on hospital outpatient services, in the absence of adoption of the Medicare OPPS methodology, adopted comparable Medicare payments for similar services provided in other sites (i.e., physician offices). That is, TRICARE looked to the similarity of services being provided, not the site of services, in adopting a reimbursement methodology for hospital outpatient services. . . . [I]n reviewing payments for hospital services, DoD has determined that, for radiology services . . . the technical component of the allowable charge did not approximate the Medicare fair payment for such hospital services as well as it could have. That is, looking at the Medicare reimbursement methodologies in existence prior to adoption of Medicare OPPS in 2000, . . . some radiology services were underpaid in comparison. . . . Thus, although payments to hospitals for radiology services were consistent with the duly promulgated regulation, there is a basis for TRICARE to provide an opportunity to make some discretionary net payment adjustments to approximate more closely Medicare payment methods. . . . General TRICARE policy is that payment methodologies follow to the extent practicable Medicare payments. Prior to adopting [OPPS], Medicare used a blended rate that factored in a percentage of hospital costs and a percentage of the global physician fee schedule to reimburse hospital outpatient radiology services. In contrast, TRICARE regulation limited reimbursement to hospitals for individual outpatient radiology services to the technical component portion of the [CMAC], which was one component of Medicare’s physician fee schedule. Consistent with TRICARE policy under statute to pay similar to Medicare, we have determined that discretionary adjusted payments may better reflect the Medicare payment amounts for outpatient radiology claims. DPP Contract Notice at A5–A7. -4- 6-digit Medicare OSCAR provider number [also known as the provider identification number], and [National Provider Identification (‘NPI’) number].” Id. Step 2 also directed hospitals to provide contact names and addresses “to be used by TMA for formal response to the request.” DPP Contract Notice at A7. Each hospital compiled the required information in “[a] separate Excel spreadsheet . . . in the TMA-specified format.” Id. Step 2 also specified the method to ask TMA questions noting, “Questions of general interest to all hospitals will be posted with answers on the TMA website.” DPP Contract Notice at A7; see Gov’t’s First MSJ, App’x at A10–A15 [hereinafter DPP Contract FAQs]. Steps 3–6 disclose how TMA would extract, exclude, and analyze claims data. DPP Contract Notice at A7–A9. Specifically, Step 3 explained “TMA w[ould] extract the claims for each hospital for claims for outpatient radiology services during the relevant period.” Id. at A7. Step 3 also indicated which of the extracted claims TMA would exclude from consideration, such as “if the [Technical Component (‘TC’)] CMAC amount is less than the global CMAC and the claim does not have a TC modifier. Id. at A7–A8. Step 4 presented the “‘Medicare’ method” TMA used to “calculate what would have been paid under the approach that Medicare used to pay hospital outpatient radiology claims prior to [Centers for Medicare & Medicaid Services (‘CMS’)] implement[ing] . . . the Medicare OPPS in 2000.” Id. at A8. Step 5 detailed how TMA “adjust[ed] the ‘Medicare’ amount calculated [through the Medicare Method] in Step 4 on each claim using the ratio of the actual allowed amount (the amount that a health plan has determined to be a fair price for a given medical treatment) on the claim to the TRICARE Standard allowed amount (the technical component of the CMAC).” Id. Step 6 explained how TMA “then compare[d] the adjusted ‘Medicare’ amount for each claim with the actual allowed amounts on that claim” and “calculate[d] the difference between the two amounts.” Id. at A9. The difference between the Medicare method calculation and the payment from TMA “w[as] used in determining the level of additional payment to the hospital.” DPP Contract Notice at A9. If the resulting difference was more or equal to TMA’s payment, “no additional payment shall be made.” Id. Step 7 clarified “[i]f the calculations in Step 6 [comparing the actual allowed amount and the Medicare method amount] indicate that an additional payment shall be made to the hospital, then a hospital-specific offset for cost sharing shall be calculated.” Id. Step 8 notified hospitals “[a] written response [at] the hospital’s request w[ould] be sent to the individual at the address provided by the hospital [and] provide the calculated discretionary adjusted payment and the calculations from which the adjustment was derived.” Id. Step 8 added “[w]hile the methodology for calculating the adjustment is not subject to questions, any questions regarding the data used in the calculations should be received by TMA within 30 days . . . of TMA’s response . . . . Any questions should be accompanied by detailed explanation of the alleged errors and the proposed corrections with supporting documentation.” Id. at A9; see Gov’t’s First MSJ, App’x at A16 (DPP Contract Sample Response). -5-  Finally, Step 9 specified TMA’s written response mentioned in Step 8 included “a release and agreement to accept the discretionary adjusted payment by the hospital.” DPP Contract Notice at A9. Per Step 9, “[t]he signed release and agreement should be returned to TMA within 30 days of the date of initial response or TMA response to any questions raised in [S]tep 8, whichever date is later.” Id. After TMA received “the signed release and agreement, payment w[ould] be made to the hospital.” Id. Plaintiffs estimate several thousand hospitals submitted requests for discretionary payment, including the six named plaintiffs in this case (“plaintiffs”): McLaren Greater Lansing (Ingham Regional Medical Center), INTEGRIS Baptist Regional Health Center (Miami), INTEGRIS Bass Baptist Health Center, INTEGRIS Grove Hospital, INTEGRIS Baptist Medical Center (Integris Baptist), and INTEGRIS Canadian Valley Hospital. See Ingham Reg’l Med. Ctr. v United States, 126 Fed. Cl. 1, 16 (2016), aff’d in part, rev’d in part, 874 F.3d at 1348. The Court previously “determined that plaintiffs in this lawsuit have appropriately pled that a contract was formed between TMA and plaintiffs through: (1) the April 25, 2011 letter, (2) the Notice, (3) the FAQs, (4) the spreadsheets that hospitals submitted to TMA to provide their identifying information and indicate their interest in receiving the adjustment, (5) the payment adjustment worksheets that TMA provided to hospitals to show the amount of TMA’s proposed adjustment, and (6) the release of claims that hospitals executed to receive their adjustment payments (‘the Release’).” Gov’t’s First MSJ at 17 (citing Ingham Reg’l Med. Ctr., 126 Fed. Cl. at 31–32). B. Regulatory Scheme The relevant provisions of the regulatory scheme of 32 C.F.R. § 199.14(a)(5) provide: (5) Hospital outpatient services. This paragraph (a)(5) identifies and clarifies payment methods for certain outpatient services, including emergency services, provided by hospitals . . . . (iv) Radiology services. TRICARE payments for hospital outpatient radiology services are based on the allowable charge method under paragraph (j)(1) of the section. In the case of radiology services for which the CMAC rates are established under that paragraph, a payment rate for the technical component of the radiology services is provided. Hospital charges for an outpatient radiology service are reimbursed using the CMAC technical component rate. . . . (xi) Facility charges. TRICARE payments for hospital outpatient facility charges that would include the overhead costs of providing the outpatient service would be paid as billed. For the definition of facility charge, see § 199.2(b). -6-  C. Procedural History On 21 October 2013, plaintiffs brought this action claiming the government underpaid them for certain outpatient medical services they provided between 1 August 2003 and 1 May 2009. See Ingham Reg’l Med. Ctr., 126 Fed. Cl. at 9. Plaintiffs allege the approximately six years of underpayment breached two contracts and violated various statutory and regulatory provisions. Id. Plaintiffs seek to represent a class of approximately 1,610 similarly situated hospitals. See Pls.’ Mot. to Certify, ECF No. 76. On 13 January 2015, the government filed a motion to dismiss plaintiffs’ complaint for failure to state a claim pursuant to Rule 12(b)(6) of the Rules of the United States Court of Federal Claims (“RCFC”), Gov’t’s Mot. to Dismiss, ECF No. 41. The government argued plaintiffs “fail[ed] to allege facts” sufficient to establish a binding contract with the government or that any contract was breached, and absent a valid contract, “there [could] be no mutual mistake or breach of the covenant of good faith and fair dealing.” Id. at 1. On 22 March 2016, this Court dismissed plaintiffs’ complaint for failure to state a claim. See Ingham Reg’l Med. Ctr., 874 F.3d at 1346. Plaintiffs appealed three claims: the “(1) breach of express contract between Ingham and DoD based on the [DPP]; (2) revision of Ingham’s contract based on mutual mistake, in light of the errors in the calculations of radiology outpatient services and the Kennell study; and (3) violations of money-mandating statutes and regulations.” Id. On 3 November 2017, the Federal Circuit “reverse[d] the dismissal of [plaintiff] Ingham’s breach of contract claim, affirm[ed] the dismissal of [plaintiffs’] money-mandating claim, and [did] not reach the claim for mutual mistake.” Id. at 1348. Although the Federal Circuit found the Release does not bar Ingham from bringing a breach of contract claim, it did not further interpret the contract. See id. at 1346. The Federal Circuit remanded the case “for further proceedings on the breach of contract claim.” Id. at 1348. On remand, plaintiffs filed an amended complaint,[5] the government filed its answer, and the parties engaged in discovery, ECF Nos. 74, 79. This case was transferred to the undersigned Judge on 29 July 2019. See Order, ECF No. 114. On 14 January 2020, the Court issued an order ruling on five motions regarding the government’s effort to “claw back” purportedly privileged documents it inadvertently sent plaintiffs. 14 Jan. 2020 Op. & Order. The Court held these communications were not privileged by analogizing the DPP to “an insurer’s claim investigation” as “DoD investigated hospitals’ underpayment claims further before 5 The Federal Circuit’s Opinion left several holdings in the court’s 22 March 2016 decision undisturbed. See generally Ingham, 874 F.3d 1341; Ingham, 126 Fed. Cl. 1, aff’d in part, rev’d in part, 874 F.3d 1341. Accordingly, several plaintiffs who did not sign Releases to obtain payment under the DPP were dismissed from the suit. See id. Originally, the named plaintiffs on the suit were: Ingham Regional Medical Center, Bay Regional Medical Center, McLaren Northern Michigan, Gifford Medical Center, Inc., and Lakewood Health System. See Compl. at 1, ECF No. 1. Upon filing an amended complaint, the named plaintiffs are now: McLaren Greater Lansing (f/k/a Ingham Regional Medical Center), Integris Baptist Medical Center, Inc., Integris Bass Baptist Health Center, Integris Canadian Valley Hospital, Integris Miami Hospital, and Integris Grove Hospital. See Second Am. Compl. at 1, ECF No. 74. -7-  making a payment determination.” Id. at 18. The Court stated, “When [one of the allegedly privileged documents] was created, the government’s primary focus was the calculation, and recalculation, of TRICARE payments which became the government’s business during the [DPP].” Id. at 22. “While there may have been communication exchange between the parties regarding ‘settlement’ after the Notice, the comments were related to calculation review regarding repayment” and the parties aimed to “avoid litigation.” Id. at 19, 21. The Court found “the term ‘settlement’ in this context refers to a negotiated business settlement, not the settlement of a legal action, because the government sought to correct payment errors and avoid litigation.” Id. at 20. The Court thus held the documents in question could not “constitute preparation for litigation,” and the DPP Contract was a “negotiated business settlement to agree on a recalculation figure.” Id. at 20, 22. On 5 June 2020, plaintiffs filed a renewed motion to certify class and appoint class counsel (“Pls.’ Class Cert.”), ECF No. 146. On 26 August 2021, the government filed a motion for summary judgment (“Gov’t’s First MSJ”), ECF No. 203. The parties then filed seven evidentiary motions and one motion for leave to file amended briefs. On 26 August 2021, the government filed a motion to exclude inadmissible evidence relied upon in plaintiffs’ motion for class certification, ECF No. 204, under Rule 408 of the Federal Rules of Evidence (“FRE”). The same day, the government filed a motion to exclude the expert opinion of Jane Jerzak, ECF No. 205, and a motion to exclude the expert opinion of Anthony Fay, EFC No. 206. On 11 March 2022, the government filed a motion to strike inadmissible evidence under FRE 408 relied upon in plaintiffs’ response to the government’s motion for summary judgment and plaintiffs’ response to the government’s motion to exclude the expert opinion of Jane Jerzak, ECF No. 238. The next day, the government moved to strike paragraphs 7 and 18 of the declaration of Sere Allen, ECF No. 239. On 14 March 2022, the government moved to strike paragraphs 3 through 10 of Dale Thompson’s declaration, ECF No. 240. On 5 April 2022, plaintiffs filed a motion to exclude the expert opinion and continued participation of David L. Kennell and Kennell and Associates, ECF No. 251. See Ingham Reg. Med. Ctr. v. United States, 163 Fed. Cl. 384, 390–95 (2022) (citations modified for clarity). Following a status conference and oral argument, on 28 November 2022, the Court issued an opinion and order, staying class certification and the parties’ evidentiary motions but granting-in-part and denying-in-part the government’s Summary Judgment Motion. See id. at 390. The Court concluded: (1) the government did not have a duty to obtain and adjust original native data from plaintiff hospitals; (2) the government did have a duty to correctly adjust data from the government’s TMA database; (3) the government did have a duty to correctly consider zip codes for plaintiff hospital locations not provided by the hospitals in their discretionary payment submissions; -8-  (4) the government breached its duty to correctly adjust data from TMA’s database; (5) plaintiffs were not obligated to pre-check TMA’s data; (6) the government did not prove the discretionary payment agreement shifted the risk of all data issues to plaintiff hospitals; and (7) there was no mutual mistake of fact. Id. (cleaned up). Thus, the Court’s 28 November 2022 Opinion and Order found plaintiffs’ “only surviving breach of contract claim is the government’s duty to extract, analyze, and adjust line items from its database.” Id. The Court then directed the parties to proceed with briefing for class certification. Id. On 21 March 2023, plaintiffs filed a Motion for Leave to Conduct Certain Limited Additional Discovery and to Submit Supplemental Expert Report. See Pls.’ 21 Mar. 2023 Mot. for Disc., ECF No. 269. Plaintiffs noted, after the Court’s 28 November 2022 Order finding the government breached its duty to correctly adjust data from TMA’s database, “[w]hat remains is to identify the hospitals impacted, and to quantify the underpayments.” See id. at 1. Plaintiffs sought leave to: “(1) depose a Government corporate designee, (2) serve document requests, and (3) thereafter serve a supplemental expert report on the relevant class issues,” noting, “[a]fter completion of this discovery, [p]laintiffs would then file an amended motion for class certification.” Id. at 2. On 2 January 2024, the Court granted-in-part and denied-in-part plaintiff’s Motion for Discovery and ordered a future JSR to update the Court on the progress of discovery. See Ingham Reg’l Med. Ctr. v. United States, 169 Fed. Cl. 12, 32 (2024). In that Order, the Court denied plaintiffs’ request for an expert report to estimate class-wide damages without prejudice, noting “plaintiffs’ next step should be to analyze the government’s data for the six named plaintiffs already in plaintiffs’ possession to assist plaintiffs in tailoring their document requests.” See Ingham, 169 Fed. Cl. at 32. On 1 April 2024, in a second JSR following the Court’s 2 January 2024 Order, the parties disclosed plaintiffs’ preliminary estimate of damages for the six named plaintiffs based on a data file the government produced following summary judgment. See 1 April 2024 JSR at 7, ECF No. 292. The government disputed plaintiffs’ damages estimate, arguing they implemented the DPP incorrectly—the government then disclosed its plans to file a motion for summary judgment following the close of discovery. See id. at 8–10. On 18 December 2024, plaintiffs filed a Renewed Motion to Certify Class Action and Appoint Class Counsel, ECF No. 313. The Court stayed further briefing on the motion until the close of expert discovery on 28 February 2025. See 23 December 2024 Order, ECF No. 314. On 12 February 2025, the government filed a sealed motion for leave to file a motion to strike plaintiffs’ expert reports and motion for class certification for failure to comply with the Court’s previous orders. See Gov’t’s Mot. for Leave to File Mot. to Strike, ECF No. 315. On 7 March 2025, the parties filed a JSR in which they confirmed completion of fact and expert discovery and proposed competing proposals for resolution of issues moving forward. See 7 Mar. 2025 JSR, ECF No. 318. -9-  On 26 March 2025, the Court held a status conference to discuss the 7 March 2025 JSR. See 17 Mar. 2025 Scheduling Order, ECF No. 319. After the status conference, the Court issued an Order further staying plaintiffs’ Motion to Certify Class and finding as moot the government’s Motion for Leave to File Motion to Strike. See 27 Mar. 2025 Order Staying Mot. to Certify Class, ECF No. 320. Citing its 23 December 2024 Order, and as agreed by the parties, the Court instead ordered a briefing schedule for filing expert reports and Cross-Motions for Summary Judgment. See id. at 2. The Court noted the “goal of the Cross-Motions . . . is to substantively discuss the government’s disagreements regarding liability in the expert reports and narrow the issues as concretely as possible before addressing class certification.” See id. On 31 March 2025, plaintiffs filed the Opening Expert Report of Isaiah Berg (“Berg Report”) and its supplement (“Berg Supp. Report”), ECF No. 321, and the government filed the Opening Expert Report of Mark Gustafson (“Gustafson Report”) and its supplement (“Gustafson Supp. Report”), ECF No. 322. On 28 April 2025, the government filed a Sealed Motion for Summary Judgment (“Gov’t’s Second MSJ”), ECF No. 325. The same day, plaintiffs filed a Sealed Motion for Partial Summary Judgment (“Pls.’ MPSJ”), ECF No. 326, which plaintiffs amended on 30 April 2025, ECF No. 328. The parties filed responses on 28 May 2025, followed by replies in mid-June. See Pls.’ Resp., ECF No. 332; Gov’t’s Resp., ECF No. 333; Pls.’ Reply, ECF No. 334; Gov’t’s Reply, ECF No. 335. On 21 January 2026, the Court held oral argument on the parties’ Cross-Motions. See 24 Oct. 2025 Order Setting Oral Argument, ECF No. 337. Currently pending before the Court are the parties’ Cross-Motions for Summary Judgment. See Gov’t’s Second MSJ; Pls.’ MPSJ; see generally Ingham, 163 Fed. Cl. at 290; 27 Mar. 2025 Order. II. Parties’ Arguments “The Court previously determined that plaintiffs in this lawsuit have appropriately pled that a contract was formed between TMA and plaintiffs through: (1) the April 25, 2011 letter, (2) the Notice, (3) the FAQs, (4) the spreadsheets that hospitals submitted to TMA to provide their identifying information and indicate their interest in receiving the adjustment, (5) the payment adjustment worksheets that TMA provided to hospitals to show the amount of TMA’s proposed adjustment [(“Adjustment Worksheets”)], and (6) the release of claims that hospitals executed to receive their adjustment payments (‘the Release’).” Ingham, 163 Fed. Cl. at 393 (citations and internal quotations omitted). Neither party disputes the existence of the contract as pleaded—rather, both parties accept a contract was formed through these six categories of documents but dispute how to properly implement the nine-step DPP as outlined in the Notice. See Gov’t’s Second MSJ at 1, 5; Pls.’ MPSJ at 8, 16. The government argues summary judgment is proper for three reasons. First, the government asserts plaintiffs have put forward new arguments not previously included in briefing for the Court’s first summary judgment ruling, constituting “an obvious case of waiver.” Gov’t’s Second MSJ at 28. Second, the government contends plaintiffs seek to include line items expressly excluded by the contract by misinterpreting contractual text in DPP Steps 3, 5, 6, and 7. See id. at 28–29. Third, according to the government, plaintiffs cannot establish damages with any reasonable certainty because plaintiffs’ expert report re-writes DPP Steps 3, 5, 6, and 7 - 10 - in a manner irreconcilable “with the plain language of the contracts.” See id. at 29. Thus, the government argues plaintiffs have not presented any proof of breach or damages related to the claims the Court allowed to move forward in its last summary judgment order (that is, the government’s TMA-data duty and plaintiffs’ alternate zip code claims). See id. On the basis of its own expert report running the DPP, the government asks the Court enter judgment against the named plaintiffs on all their claims, except for $13,914 6 for Integris Baptist Medical Center. See id. Plaintiffs argue they did not waive their current claims because they are not responding to the government’s first Motion for Summary Judgment, but instead seeking judgment on claims the Court allowed to move forward in the last summary judgment order. See Pls.’ Resp. at 6–7. Plaintiffs argue the Court’s order on the government’s first Motion for Summary Judgment establishes the government breached the contract, and plaintiffs further contest the government’s interpretation of the contract. See Pls.’ MPSJ at 20–22. Specifically, plaintiffs assert: (1) the government already conceded breach of contract with INTEGRIS Baptist Medical Center through underpayments of nearly $14,000; (2) the government breached the contract by incorrectly interpreting DPP steps 3, 5, 6, and 7 to underpay plaintiffs; and (3) a memo authored by David Kennell corroborates these underpayments. See id. at 22, 23–35. Finally, plaintiffs argue, because the government excluded line items eligible for payment in breach of the contract, plaintiffs were not paid the full amounts owed under the contract, and damages are present as a matter of law. See id. at 36–37. III. Legal Standard A. Summary Judgment Summary judgment is proper when the evidence fails to reveal a “genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). “Genuine” issues exist if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248. Facts are “material” if they “might affect the outcome of the suit” and do not include “irrelevant or unnecessary” factual disputes. Id. Inferences “must be viewed in the light most favorable” to the nonmoving party when considering summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The moving party “always bears the initial responsibility” of presenting evidence which “demonstrate[s] the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If this burden is met, the nonmovant must “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256. B. Contract Interpretation “Contract interpretation is a matter of law and thus is amenable to decision on summary judgment.” Gov’t Sys. Advisors, Inc. v. United States, 847 F.2d 811, 812 n.1 (Fed. Cir. 1988) 6 The government also stipulated to an additional $486 in damages based on a prior expert’s quantification of damages and an additional $79 from its expert’s supplemental report—for a total of $14,479 in damages for Integris Baptist Medical Center. See Section V.F, infra. - 11 - (citations omitted). “When deciding an issue governed by the text of a legal instrument, the careful lawyer or judge trusts neither memory nor paraphrase but examines the very words of the instrument.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 56 (2012). This is because “[t]he words of a governing text are of paramount concern, and what they convey, in their context, is what the text means.” Id. As such, “[c]ontract interpretation begins with the plain language of the agreement.” Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed. Cir. 1991). “A contract is ambiguous only when it is susceptible to two reasonable interpretations.” Hunt Const. Grp., Inc. v. United States, 281 F.3d 1369, 1372 (Fed. Cir. 2002) (quoting A-Transport Northwest Co., Inc. v. United States, 36 F.3d 1576, 1584 (Fed. Cir. 1994)). “To show an ambiguity it is not enough that the parties differ in their respective interpretations of a contract term. Rather, both interpretations must fall within a ‘zone of reasonableness.’” NVT Techs., Inc. v. United States, 370 F.3d 1153, 1159 (Fed. Cir. 2004) (citation omitted). When interpreting a contract, one must consider it as a whole and interpret it to harmonize and give reasonable meaning to all its parts. See McAbee Constr., Inc. v. United States, 97 F.3d 1431, 1434–35 (Fed. Cir. 1996); Gould, 935 F.2d at 1274 (“[P]rovisions of a contract must be so construed as to effectuate its spirit and purpose . . . an interpretation which gives a reasonable meaning to all of its parts will be preferred to one which leaves a portion of it useless, inexplicable, inoperative, void, insignificant, meaningless, superfluous, or achieves a weird and whimsical result.”). If a contract’s provisions are “clear and unambiguous, they must be given their plain and ordinary meaning, and the court may not resort to extrinsic evidence to interpret them.” McAbee, 97 F.3d at 1435 (cleaned up). “To permit otherwise would cast a long shadow of uncertainty over all transactions and contracts.” Id. (cleaned up). “The general rule is that extrinsic evidence will not be received to c