RESPONDENT’S MOTION TO DISMISS COMPLAINT DENIED:
June 21, 2023
CBCA 7357
UNITEDHEALTHCARE INSURANCE COMPANY, INC.
Appellant,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
Stephen J. McBrady, Charles Baek, and Payal Nanavati of Crowell & Moring LLP,
Washington, DC, counsel for Appellant.
Nicole M. Lohr and James Muetzel, Office of the General Counsel, Office of
Personnel Management, Washington, DC, counsel for Respondent.
Before Board Judges RUSSELL, GOODMAN, and KULLBERG.
RUSSELL, Board Judge.
Appellant, UnitedHealthcare Insurance Company, Inc. (UHC), appeals the decision
by respondent, Office of Personnel Management (OPM), denying UHC’s claim to be
reimbursed $3,838,510.70 plus interest for benefit payments that UHC made for medical care
provided to the child of a Federal employee.  UHC alleges that OPM breached the contract
and the duty to engage in good faith and fair dealing when OPM failed to provide UHC with
accurate enrollment information resulting in UHC paying claims for the employee whom
UHC alleges was not eligible to be enrolled in UHC’s FEHB plan.  


CBCA 7357 2
OPM has moved to dismiss this appeal pursuant to Rules 12(b)(1) and 12(b)(6) of the
Federal Rules of Civil Procedure.  OPM alleges that UHC is barred from bringing this appeal
because (1) UHC failed to present its good faith and fair dealing claim to the contracting
officer; and (2) disputes challenging a federal employee’s health benefits eligibility must be
brought pursuant to the Federal Employees Health Benefits Act (FEHBA), 5 U.S.C. §§ 8901-
8914 (2018).  For the reasons stated below, we deny OPM’s motion. 
Background
I. Regulatory Background
UHC has a contract with OPM to provide health benefit plans to federal employees
under a community-rated contract.  Complaint ¶ 8.  An employee who becomes eligible for
healthcare benefits may elect to enroll or not to enroll for such benefits within sixty days
after becoming eligible.  5 CFR 890.301(a)(2022).  Eligible employees may also enroll or
change their enrollment during the “open season” held each year from the Monday of the
second full workweek in November through the Monday of the second full workweek in
December.  5 CFR 890.301(f)(1).  
The enrollment of an employee continues while the employee is on leave without pay
(“LWOP” or “non-pay status”) for up to 365 days.  5 CFR 890.303(e)(1).  After exhausting 
365 days of continued coverage under a non-pay status, the enrollment terminates at
midnight on the last day of the last pay period in pay status.  Id. at 890.304(a)(1)(v).  Once
the termination conditions have been met, the employing office generates a Change in Health
Benefits Enrollment form, SF-2810.  Complaint ¶ 15.  This form serves as a notice that the
carrier should process the termination of an enrollee.  Id.  
Enrollment terminations, following a non-pay status or otherwise, are typically subject
to an automatic thirty-one day extension of coverage.  See 5 CFR 890.401(a)(1).  Except as
otherwise provided, an eligible employee must enroll in a healthcare plan within sixty days
after a change in employment status, including a return to pay status from leave without pay.
5 CFR 890.301(h).
II. UHC’s Complaint
On January 1, 2019, the employee who is the subject of this dispute enrolled in UHC’s
health benefit plan.  Complaint ¶ 30.  On February 2, 2019, the employee reached 365 days
on leave without pay (or non-pay status).  Id. ¶ 31.  On February 10, 2019, the content of a
SF-2810 form was transmitted to UHC via a weekly electronic feed from OPM which
notified UHC of the termination status of the employee.  Id. ¶ 32.  The information indicated
that the employee’s enrollment was terminated effective February 2, 2019.  Id.  

CBCA 7357 3
On April 24, 2019, UHC requested clarification from the employee’s payroll office
on the employee’s benefits enrollment status via the Centralized Enrollment Clearinghouse
System (referred to as CLER).1  Id. ¶ 34.  On June 27, 2019, the employee’s agency
confirmed that the employee was on leave without pay/non-pay status with insurance
coverage continuing.  Id. ¶ 34. 
On July 8, 2019, the employee returned to her agency as an employee and had sixty
days from that date (to September 6, 2019) to enroll in a healthcare plan but did not do so. 
Id. ¶ 35.  On July 30, 2019, UHC requested that CLER records be updated to reflect the
information provided on June 27, 2019 that the employee’s coverage continued.  Id. ¶ 36. 
However, as of September 2019, the employee’s agency had not updated CLER with this
information.  Id. ¶ 37.  Also, during the 2020 open enrollment season (from November 11,
2019 to December 9, 2019), the employee did not elect healthcare coverage.  Id. ¶ 38.
In or around January 2020, UHC approved a heart transplant procedure for the
employee’s dependent child.  Id. ¶ 41.  On February 27, 2020, the employee’s agency, via
CLER, instructed UHC to terminate the employee’s non-pay coverage effective February 2,
2019.  Id.¶ 42.  On March 12, 2020, the employee’s dependent child underwent the approved
heart transplant.  Id. ¶ 43.
In or around April 2020, UHC reached out to the employee’s agency to determine
whether the employee’s enrollment termination, effective February 2, 2019, was in error. 
Id. ¶ 45.  The agency stated that the employee “never re-enrolled when she returned [to the
agency]” and that the employee “had not paid premiums for over a year.”  Id.  The agency
explained:
Our senior specialist is reaching out to Treasury/OPM asking if there is
anything we can legally do for this employee.
The regulations don’t allow us to reinstate the FEHB coverage for this
employee, since [the employee’s] coverage was terminated based upon 5 CFR
890.304(v), 365 days of LWOP status.  
1 CLER is an Internet-based system that receives electronic enrollment data from
federal agencies and FEHB carriers to facilitate reconciliation and reporting.  Agencies,
FEHB carriers, OPM, and the National Finance Center can access this system to, depending
on their security access, conduct inquiries, update contact information, initiate reconciliation
corrections, and generate reports.  

CBCA 7357 4
Per 5 CFR 890.301(h)(1)(ii), the employee must enroll within 60 days of
returning to pay status, which in [the employee’s] case was March 3, 2019. 
. . . The [employee] did not submit a SF-2809 electing to enroll in FEHB . . .
nor did she make an Open Season election.[2]
She can submit a request for reconsideration, late election, . . . .  If she submits
a reconsideration request, we can expedite the review of the request.  But, I do
not see anywhere allowing an agency to enroll an employee in the FEHB
program.
Id. ¶ 45.
However, notwithstanding this earlier assessment of the employee’s non-enrollment
status, on April 25, 2020, the agency indicated that it would proceed with processing
enrollment for the employee stating that, “[o]nce we receive the Form 2809[,] we will review
it and proceed.”  Id. ¶ 46.  On May 6, 2020, UHC received a completed Form 2809 for the
employee with an effective date of January 19, 2020.  Id. ¶ 47.   
  
On September 4, 2020, UHC processed payment for the employee’s medical and
pharmacy claims for the heart transplant procedure.  Id. ¶ 51.  From April 2021 to June 2021,
UHC sent communications to OPM requesting that OPM reimburse UHC $3,838,510.70 for
this procedure.  Id. ¶ 52.  UHC alleged that, at the time of the medical procedure in March
2020 and UHC’s pre-authorization for that procedure in January 2020, CLER did not have
accurate information on the employee’s health benefits enrollment. 
In its subsequent certified claim to OPM, UHC alleged that the Government failed to
perform its contractual and regulatory duties to provide UHC with accurate and timely
enrollment information regarding the employee’s enrollment status which led UHC to
authorize and pay the employees’ claims for benefits.  OPM denied UHC’s claim stating, 
UHC’s claim that the Government breached its obligation under the Contract
are [sic] misplaced, as they center on the enrollment decision of the
2 The SF 2809 is the Health Benefits Election Form.  The form has multiple parts
that an employee must fill out including:  Part A, Enrollee and Family Information; Part B,
FEHB Plan [the Employee Is] Currently Enrolled in, if applicable; Part C, FEHB Plan [the
Employee Is] Enrolling in or Changing To; Part D, Event that Permits [the Employee] to
Enroll, Change, or Cancel; and Part E, Election Not to Enroll (which the employee can
check).  The form also has a part to be filled out by the agency to include the date the form
is received, and the effective date of the action.   

CBCA 7357 5
[employing agency] to allow the Employee’s enrollment retroactive to January
19, 2020.  UHC has no right to dispute the employing agency’s enrollment
decisions.  The employing office has administrative authority to make
enrollment decisions under 5 CFR 890.103(a).  Further, UHC is required by
the Contract to abide by the Government’s decisions on enrollment.  
Appeal File, Exhibit 1.3
This appeal followed.  In its complaint, UHC alleges that OPM breached the parties’
contract by failing to provide UHC with accurate information for the employee despite
UHC’s repeated requests for enrollment reconciliation for the employee through CLER. 
Complaint ¶ 64.  UHC alleges that the breach caused it to pay $3,838,510.70 in claims for
healthcare services provided to the employee’s dependent child although the employee was
not eligible to be enrolled in the FEHB plan.  Id.  Additionally, UHC alleges that the
Government breached the duty of good faith and fair dealing by (1) as with the breach of
contract claim, failing to provide UHC with accurate enrollment information for the
employee, despite UHC’s repeated requests for enrollment reconciliation for the employee
through CLER; and (2) misleading UHC as to the propriety of the employee’s enrollment. 
Id. ¶¶ 68-69.   
Discussion
I. OPM’s Motion to Dismiss for Lack of Jurisdiction
“A tribunal usually considers a motion to dismiss on jurisdictional grounds before any
other motion because without jurisdiction, the tribunal cannot examine the additional matters
placed before it.”  Flux Resources, LLC v. Department of Energy, CBCA 6208, 19-1 BCA
¶ 37,338, at 181,588.  The appellant bears “the burden of establishing subject matter
jurisdiction by a preponderance of the evidence.”  Selrico Services, Inc. v. Department of
Justice, CBCA 3084, 13 BCA ¶ 35,268, at 173,132 (quoting Ron Anderson Construction,
Inc. v. Department of Veterans Affairs, CBCA 1884, et al., 10-2 BCA ¶ 34,485, at 170,070).
“Each ‘claim’ brought under the CDA must be submitted in writing to the contracting
officer, with adequate notice of the basis for the claim.”  Crane & Co. v. Department of the
Treasury, CBCA 4965, 16-1 BCA ¶ 36,539, at 178,005 (citing Santa Fe Engineers, Inc. v.
United States, 818 F.2d 856, 858 (Fed. Cir. 1987)).  Accordingly, the Board “only [has]
jurisdiction if a claim is the subject of a contracting officer’s final decision.”  Alares
Construction, Inc. v. Department of Veterans Affairs, CBCA 6149, et al., 22-1 BCA
3 All exhibits are found in the appeal file, unless otherwise noted.

CBCA 7357 6
¶ 38,225, at 185,649.  “For this reason, the Board may not consider ‘new’ claims a contractor
failed to present to the contracting officer.”  Lee’s Ford Dock, Inc. v. Secretary of the Army,
865 F.3d 1361, 1369 (Fed. Cir. 2017).  “A claim is new when it ‘present[s] a materially
different factual or legal theory’ of relief.”  Id. (quoting  K-Con Building Systems, Inc. v.
United States, 778 F.3d 1000, 1006 (Fed. Cir. 2015)).  “Materially different claims ‘will
necessitate a focus on a different or unrelated set of operative facts.’”  Id. (quoting Placeway
Construction Corp. v. United States, 920 F.2d 903, 907 (Fed. Cir. 1990)).
OPM asserts that the Board lacks jurisdiction over UHC’s good faith and fair dealing
claim because UHC failed to present the claim to the contracting officer before filing this
appeal.  OPM also argues that the Board lacks jurisdiction over this claim and UHC’s breach
of contract claim because, under 5 U.S.C. § 8912, district courts of the United States and the
United States Court of Federal Claims have concurrent jurisdiction over FEHB enrollment
disputes and all other claims under the FEHBA.  OPM asserts that UHC’s dispute is
essentially one challenging the employee’s eligibility to enroll in UHC’s FEHB plan, a
determination within the purview of OPM and the employee’s agency—not the Board.  We
find that the Board has jurisdiction over both of UHC’s breach claims.  
A. UHC’s Claim Based on “Breach of the Duty of Good Faith and Fair Dealing”
As an initial matter, we find that we have jurisdiction to consider UHC’s claim based
on the Government’s alleged breach of the duty of good faith and fair dealing.  “[T]he
implied duty of good faith and fair dealing, which attaches to every government contract,
‘requires a [contracting] party to refrain from interfering with another party’s performance
or from acting to destroy another party’s reasonable expectations regarding the fruits of the
contract.’”  Integhearty Wheelchair Van Services, LLC v. Department of Veterans Affairs,
CBCA 7318, 22-1 BCA ¶ 38,156, at 185,313 (quoting Bell/Heery v. United States, 739 F.3d
1324, 1334-35 (Fed. Cir. 2014)).  
In determining whether UHC’s two breach claims—one based on breach of contract
and the other based on breach of the duty of good faith and fair dealing which OPM argues
was not presented to the contracting officer—involve the “same set of operative facts,” we
need to “identif[y] whether the facts necessary to establish the elements of [the two] legal
theories underlying each ‘claim’ are essentially the same or interrelated.”  Anglin Consulting
Group, Inc. v. Department of Homeland Security, CBCA 6926, 21-1 BCA ¶ 37,918,
at184,157.  Here, both breach claims relate to the Government’s alleged failure to provide
UHC with accurate enrollment information regarding the employee and, thus, will turn on
similar factual determinations.  Accordingly, we find that we have jurisdiction over UHC’s
claim based on the Government’s alleged breach of the duty of good faith and fair dealing.

CBCA 7357 7
B. UHC’s Breach of Contract Claim
The Board disagrees with OPM’s argument that the Board lacks jurisdiction over
UHC’s breach of contract claim.  The contract itself expressly states that the CDA governs
disputes arising from the contract.  See, e.g., Texas Health Choice, L.C. v. Office of
Personnel Management, 400 F.3d 895, 897 (Fed. Cir. 2005) (“As a services contract with the
United States government, [FEHBA contracts are] governed by the CDA.”).  Further, as
explained by the District of Columbia Circuit in Mutual of Omaha Insurance Co. v. National
Association of Government Employees, Inc.:
A section of [the Federal Employees Health Benefits Act] does provide that
“[t]he district courts of the United States have original jurisdiction, concurrent
with the United States Court of Federal Claims, of a civil action or claim
against the United States founded on this chapter.” 5 U.S.C. § 8912 (1994) . . .
But an action founded on contract is not “founded on this chapter.” Cf. 28
U.S.C. § 1346(a)(2) (1994) (depriving district courts of jurisdiction over
claims against the United States “founded upon any express or implied
contract” with the United States that is subject to the Contract Disputes Act)
(emphasis added).
. . . .
What matters is the source of the right at stake.  As we said in Ingersoll-Rand
[Co. v. United States, 780 F.2d 74, 76 (D.C. Cir. 1985)], “determining whether
an action is founded upon a contract . . . ‘depends both on the source of the
rights upon which the plaintiff bases its claims, and upon the type of relief
sought (or appropriate).’” [Id.] (quoting Megapulse, Inc. v. Lewis, 672 F.2d
959, 968 (D.C. Cir. 1982)).
145 F.3d 389, 394 (D.C. Cir. 1998).
Accordingly, the issue that we address is whether UHC’s claim is one founded under
its contract with OPM.  The contract requires that OPM, other agencies, Tribal Employers,
or the FEHB Clearinghouse furnish the names and social security numbers of enrollees to
carriers “at such times and in such form and detail as will enable the [c]arrier to maintain a
currently accurate record of all [e]nrollees.”  Exhibit 2 at I-2.  Although regulations provide
agencies with the authority to make retroactive corrections of administrative errors as to an
employee’s enrollment, 5 CFR 890.103(a), the contract additionally provides:
Clerical error (whether by OPM, any other agency, Tribal Employer, the
FEHB Clearinghouse, or the Carrier) in keeping records pertaining to coverage

CBCA 7357 8
under this contract, delays in making entries thereon, or failure to make or
account for any deduction of enrollment charges, shall not invalidate coverage
otherwise validly in force or continue coverage otherwise validly terminated.
If any person finds relevant facts pertaining to a person covered under this
contract to be misstated, and if the misstatement affects the existence, amount,
or extent of coverage, the actual facts shall determine whether coverage is in
force under the terms of this contract.  
Id. at I-2 to I-3.  
In its complaint, UHC alleges that the Government breached the contract when the
Government failed to perform its contractual duty to provide accurate enrollment information
for the employee, resulting in UHC incurring damages.  We find that UHC has stated a
cognizable claim under the contract because it alleges that the Government violated its duty
to maintain accurate records for an FEHB-eligible employee—a requirement under the
contract.  Accordingly, because UHC’s claim is based on provisions of its contract with
OPM, and the Board has jurisdiction over the claim under the CDA, OPM’s motion to
dismiss for lack of subject matter jurisdiction is denied.  See Texas Health Choice, L.C., 400
F.3d at 900 (health management organization providing services to federal and Texas
employees under an FEHBA contract could appeal OPM contracting officer’s deemed denial
of the organization’s claim to the appropriate board of contract appeals or the Court of
Federal Claim but not the district court.)
II. Motion to Dismiss for Failure to State a Claim
Having found that the Board has jurisdiction to consider UHC’s breach claims, we
turn to the issue of whether the appeal should be dismissed under Rule 12(b)(6) of the
Federal Rules of Civil Procedure and Board Rule 8(e) which states that “[a] party may move
to dismiss all or part of a claim for failure to state grounds on which the Board could grant
relief.”  (48 CFR 6101.8(e) (2021)).  “[T]he granting of a motion to dismiss for failure to
state a claim upon which relief can be granted is appropriate when the facts asserted by the
claimant do not entitle it to a legal remedy.”  Kiewit-Turner, A Joint Venture v. Department
of Veterans Affairs, CBCA 3450, 14-1 BCA ¶ 35,705, at 174, 846 (citing Boyle v. United
States, 200 F.3d 1369, 1372 (Fed. Cir. 2000)).  To survive such a motion, “[t]he contractor
must point to factual allegations that, if true, would state a claim to relief that is plausible on
its face, when the Board draws all reasonable inferences in favor of the contractor.”  B.L.
Harbert International, LLC v. General Services Administration, CBCA 6300, et al., 19-1
BCA ¶ 37,335, at 181,569.  Factual allegations need only be sufficient “to raise a right to
relief above the speculative level.”  Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citing 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216,
at 235–236 (3d ed. 2004)).

CBCA 7357 9
OPM asserts that UHC’s claims are premised on FEHB enrollment and eligibility
determinations over which the employing agency and OPM have authority.  According to
OPM, UHC can only obtain relief if a determination is made that the employee was not
eligible to participate in UHC’s health plan, and without such a determination (which is not
within the Board’s purview to make), UHC cannot obtain the relief that it is requesting.  
At this point, at least based on the pending motion before us, we cannot find that the
Government’s retroactive determination under the FEHBA on the employee’s healthcare
enrollment eligibility, which UHC is not contesting here, would be a bar to any legal remedy
under the CDA.  Under OPM regulations, employees must challenge denial of eligibility
initially with their employing agency.  5 CFR 890.104, .107.  OPM makes final
determinations on employee eligibility for FEHB coverage.  Id. at 890.102(e).  An employee
may seek judicial review of OPM’s determinations denying benefits coverage through an
action brought against OPM.  Id. at 890.107.  However, while OPM and the employing
agency have decision-making authority over FEHB enrollment and eligibility determinations,
carriers like UHC may seek relief for alleged contract breach through the CDA. 
We do note two points––one regarding certain facts alleged in the complaint, and the
second regarding a provision of the contract itself—the materiality of which will require
further development and explanation in the course of the proceedings.  As to the complaint,
UHC states that, on at least two occasions, it was informed of the employee’s non-enrollment
status right up to the time that the agency made the decision, in April 2020, to retroactively
enroll the employee in the benefits plan.  In February 2019, OPM notified UHC of the
employee’s benefits termination status.  Complaint ¶ 32.  This notice was provided prior to
UHC’s approval of the heart transplant surgery for the employee’s child in January 2020 and
the subsequent surgery in March 2020.  On February 27, 2020, prior to the surgery, the
employee’s agency, via CLER, instructed UHC to terminate the employee’s non-pay
coverage effective February 2, 2019.  Id. ¶ 42.  How this particular information, seemingly
accurate at the time provided, along with the agency’s uncontested decision to retroactively
approve the employee’s healthcare eligibility, 5 CFR 890.103(a), bear on UHC’s claim based
on provision of allegedly inaccurate information will presumably be addressed by the parties
in further proceedings in this appeal.  
  
We are also aware that the contract has an order of precedence clause stating:
Any inconsistency in the contract shall be resolved by giving precedence in the
following descending order:  The Federal Employees Health Benefits Act, the
regulations in Part 890, title 5, Code of Federal Regulations, the regulations in
chapters 1 and 16, title 48, Code of Federal Regulations, and this contract.  
Exhibit 2 at I-2. 

CBCA 7357 10
To the extent that there is a conflict between the contract at issue, the statute, and
OPM’s regulations which would be material to the Board’s determination in this appeal, we
are not going to resolve it on OPM’s motion to dismiss.  Again, we expect the parties to
address the “order of precedence” provision during the merits proceedings of this appeal. 
Here, we limit our determination on OPM’s motion to whether UHC has stated facts
supporting a cognizable claim under the CDA.  We find that the company has met this
burden.  See Jackson v. Birmingham Board of Education, 544 U.S. 167, 184 (2005) (“At this
stage of the proceedings, ‘[t]he issue is not whether [the appellant] will ultimately prevail but
whether the [the appellant] is entitled to offer evidence to support the claims.’”) (quoting
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
Decision
OPM’s motion to dismiss is DENIED. 
   Beverly M. Russell           
BEVERLY M. RUSSELL
Board Judge
I concur:  
   H. Chuck Kullberg           
H. CHUCK KULLBERG
Board Judge
GOODMAN, Board Judge, neither concurring nor dissenting.
Appellant states:
Nowhere in the Complaint does UnitedHealth challenge the Government’s
retroactive enrollment decision or seek an administrative remedy under the
[Administrative Procedure Act].  
Appellant’s Response to Respondent’s Motion at 3.
It is not clear to me if this statement is (1) an admission by appellant that the
Government’s retroactive enrollment decision was valid, or (2) an assertion that since the
validity of the retroactive enrollment decision was not challenged in the complaint, the
appellant believes that issue is not relevant to the resolution of this appeal.  Lacking clarity

CBCA 7357 11
of appellant’s intent as to the meaning of this statement, I neither concur in nor dissent from
the majority opinion.
    Allan H. Goodman        
ALLAN H. GOODMAN
Board Judge