Stokes v. Bortolini et al
Filing
13
MEMORANDUM OPINION. Signed by Judge Ellen L. Hollander on 10/5/11. (apl, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JOHN E. STOKES, IV, M.D.,
Plaintiff,
Civil Action No. ELH-I 1-2339
v.
MARK T. BERTOLINI,
et al.,
Defendants.
MEMORANDUM OPINION
On July 13,2011,
Dr. John E. Stokes, IV, plaintiff, who is a medical doctor, filed a pro se
complaint (ECF 2) in Maryland state court against Aetna Health, Inc. ("Aetna") and its president,
Mark T. Bertolini,
that defendants
I
defendants,
"[f]ailed
seeking approximately
to pay legitimate
claim[s]
$700.00 in damages.
for diagnostic
performed upon a patient who was insured by Aetna2
the case to this Court.
under 28 U .S.c.
under" federal law. See also 28 U.S.C.
complaint,
that plaintiff
had
On August 22, 201 I, defendants removed
See Notice of Removal (ECF I). They asserted that the Court possesses
subject matter jurisdiction
court when jurisdiction
testing"
Plaintiff alleged
S
S
1331, which grants jurisdiction
1441(a)-(b) (authorizing
over claims "arising
removal of cases from state
is founded on a claim "arising under" federal law). Although plaintiff's
on its face, asserted
only a state contract
law claim, defendants
contended
that
I Defendants
point out that Bertolini's last name is misspelled as "Bortolini" in the
caption of the case. It is not clear whether plaintiff actually misspelled Bertolini's last name, or
whether plaintiff's handwriting, in filling out the form complaint, simply failed to differentiate
clearly between an "e" and an "0." In any event, the Clerk will be directed to correct the spelling
of Bertolini's name on the docket.
2 Dr. Stokes's
patient is not a party to this case. Although the patient is identified in the
parties' pleadings, I have omitted his name for privacy reasons and because his identity is not
relevant to the issues before the Court.
plaintiffs
state law claim was completely preempted
Act ("FEHBA"),
5 U.S.C.
gg
by the Federal Employees
8901 et seq., thus conferring
Health Benefits
federal jurisdiction.
Subsequently,
each defendant filed a motion to dismiss (ECF 8 & 10), to which plaintiff failed to respond.
For the reasons that follow, I conclude that the Court lacks subject matter jurisdiction
over this case.
Accordingly,
the Court has no authority
to resolve defendants'
motions to
dismiss, and the case will be remanded to state court.
Factual & Procedural Background
Plaintiff filed his suit in the District Court of Maryland,
limited jurisdiction.
See Md. Code (2006 Repl. Vol., 2011 Supp.), gg 1-601 et seq. & gg 4-101
et seq. of the Courts & Judicial Proceedings Article CC,J.,,).J
court are generally
701(b); see also C,J.
g 6-403(a).
See Md. Rules 3-303(a) & 3-
In his form complaint, plaintiff checked a box asking the clerk
Complaint
of this case," plaintiff stated that defendants
diagnostic testing."
Civil actions in the state district
initiated by the filing of a form complaint.
to docket the case as an "action of contract."
"particulars
which is a state trial court of
at I. In the area of the form labeled
"[flailed to pay legitimate claim[sJ for
ld. Dr. Stokes sought $684.24 in damages, plus interest of $41.00. ld. 4
As exhibits to the complaint, plaintiff submitted two documents on Aetna letterhead.
first (which appears
to be the second page of a larger, three-page
response to several "cla'ims" related to treatment of plaintiffs
J Specifically,
1-602(1).
document)
lists Aetna's
patient on August 26,2010.
plaintiff initiated the case in District I, serving Baltimore
The
ld. at
City. See C,J.
g
In Maryland, the district court has original jurisdiction over civil actions in contract or
tort where the damages claimed do not exceed $30,000. C,J. g 4-401(1). Because plaintiffs
claim was for less than $5,000, the claim also fell within the district court's exclusive jurisdiction
over "small claims" actions. C,J. g 4-405. Pretrial discovery is not permitted in small claims
actions, see Md. Rule 3-701(e), and trials of small claims cases are conducted in an "informal
manner," whereby the formal rules of evidence do not apply. Md. Rule 3-70 I(t).
4
-2-
2. For two procedures, which were each "Billed" at $342.12, the amount of "$0.00" is listed as
Id. The second document is a letter, addressed to the patient, which refers to a "[b]illed
"Paid."
[a]mount" of $684.24 for services provided by Dr. Stokes on August 26, 20 I 0, and states: "You
are not responsible
for this charges [sic] unless you accepted responsibility
service was, performed.
determined
Charges for, or in connection
by Aetna, considered
to be experimental
with, services or supplies
or investigational
your plan." Id. at 3. The letter also identifies the federal government
As noted, defendants
federal question jurisdiction.
in writing before the
that are, as
are not covered under
as the "Plan Sponsor."
Id.
removed the case to this Court on August 22, 2011,5 based on
See 28 U.S.C.
completely preempts plaintiffs
99
1331 & 1441 (a)-(b).
state law contract claim.
They claimed that FEHBA
Subsequently,
both defendants
moved
to dismiss the suit.
Aetna's
motion to dismiss
preempts plaintiffs
(ECF 8) is also premised
government
Management
("OPM")
employees.
9
The
and supervision of health care benefit plans for many
statute
authorizes
to enter into contracts with "qualified
plans" to eligible federal employees
also id.
that FEHBA
claim. In his motion to dismiss (ECF 10), Bertolini adopts that position.
FEHBA governs the administration
federal
on the assertion
890 I (1) (defining
the federal
9
of Personnel
carriers" to offer "health benefit
and their covered dependents.
eligible "employees");
Office
9
8902(a); see
"carrier").
A "health
See 5 U.S.C.
890 I(7) (defining
5 Defendants' Notice of Removal was timely. See 28 U.S.C. 9 1446(b) (defendant must
rcmove within 30 days after service); Barbour v. Int'l Union, United Automobile, Aerospace &
Agric. Implement Workers of Am., 640 F.3d 599, 605-13 (4th Cir. 2011) (holding that the 30-day
period undcr 28 U.S.c. 9 1446(b) begins to run when the first defendant is served). Defendants
averred that Aetna was served on July 21, 2011, and that Bertolini was served on July 22, 2011.
See Notice of Removal ~~ 2-3; see also ECF 3 & 4 (summons documents). The thirtieth day
after July 21, 2011 was Saturday, August 20, 2011, and Fed. R. Civ. P. 6(a)(l)(C) extends
through the next'day the court is open any period that expires on a weekend or legal holiday.
-3-
benefits plan" is a "group insurance policy or contract ... provided by a carrier for the purpose
of providing, paying for, or reimbursing
expenses for health services."
Id.
9
8901(6).
FEHBA
establishes
certain standards that contracts
must meet,
see 5 U.S.C. 99 8902(c)-(d), (f)-(k), and authorizes aPM to contract for a variety of
health benefit plans, containing
authorizes
aPM
plans. See id.
99
to establish
for health benefits plans offered under the statute
various benefits.
by regulation
See id.
additional
99
minimum
8903-8904.
The statute also
standards
for health benefit
8902( e), 8913.
In a FEHBA contract, the carrier must agree to "pay for or provide a health service or
supply in an individual
case," if aPM
determines
that the covered employee
entitled to receive the service or supply under the contract.
established,
through regulations
codified
Id.
9 8902U).
or dependent
is
To that end, aPM has
in 5 C.F.R. part 890, subpart A, an administrative
review process by which a "covered individual" may obtain aPM review of a carrier's denial of
a claim for benefits.
family member"
a "covered
5 C.F.R.
9
890.1 05(a).
Id.
in a health benefit plan."
individual
must exhaust
A "covered individual"
9 890.101
is an "enrollee or covered
(a). The regulations expressly state that
both the carrier and aPM
review.processes
...
before
seeking judicial review of the denied claim." Id. Further, the regulations provide:
A covered individual may seek judicial review of aPM's final action on the
denial of a health benefits claim. A legal action to review final action by aPM
involving such denial of health benefits must be brought against aPM and not
against the carrier or carrier's subcontractors. The recovery in such a suit shall be
limited to a court order directing aPM to require the carrier to pay the amount of
benefits in dispute.
5 C.F .R.
9 890.1 07( c);
original jurisdiction,
see also 5 U .s.c.
9
8912 ("The district courts of the United States have
concurrent with the United States Court of Federal Claims, of a civil action
or claim against the United States founded on this chapter.") (Emphasis added).
-4-
Defendants
determination
argue that FEHBA
regarding
According to defendants,
suit against OPM.
requires
any challenge
to a covered
coverage to be brought in an administrative
proceeding
if a party contests OPM's decision, the party's
Thus, defendants
benefit
before OPM.
sole remedy is to file
maintain that plaintiff s claim is subject to dismissal
failure to state a claim, under Rule 12(b)(6) of the Federal Rules of Civil Procedure,
reasons.
plan's
for
for three
First, it is preempted by FEHBA; second, even if the complaint is considered as a claim
under FEHBA,
OPM is the only proper defendant
in any claim brought under FEHBA;
finally, plaintiff did not allege that he exhausted the administrative
remedy provided by OPM.
As noted, Bertolini filed a separate motion to dismiss (ECF 10), adopting
Aetna's arguments for dismissal.
and
by reference
Bertolini also asserts two additional arguments specific to him.
First, Bertolini contends that the complaint does not allege facts to establish his personal liability.
Therefore,
he insists that, as an officer and employee of Aetna, he is shielded from liability by
Aetna's "corporate veil."
Second, he argues that the complaint fails to allege facts showing that
the Court has personal jurisdiction
over him6
As indicated, plaintiff failed to respond to either motion.
expired.
The time for him to do so has
See Local Rule 105.2(a); Fed. R. Civ. P. 6(d).
Discussion
Federal courts are courts of limited jurisdiction
a statutory basis."
import
absent
Exxon Mobil Corp. v. Allapa/lah Servs., Inc., 545 U.S. 546, 552 (2005).
hcre, courts
jurisdiction
and "may not exercise jurisdiction
have "an independent
obligation
exists, even when no party challcngcs
to determine
whether
it." Hertz Corp. v. Friend, _
Of
subject-matter
U.S. _,
130
6 In light of my conclusion that this case must be remanded on other grounds, I need not
further discuss the additional grounds set forth in Bertolini's motion.
-5-
-----------------~
S. Ct. 1181, 1193 (20 I 0); see also Sucampo Pharmaceuticals, Inc. v. Astellas Pharma, Inc., 471
F.3d 544, 548 (4th Cir. 2006).
at any time before
jurisdiction,
9
With regard to removed cases, 28 U.S.C.
final judgment
it appears
that the district
court
1447(c) requires: "If
lacks subject
matter
the case shall be remanded."
As noted, defendants
federal question jurisdiction,
& 1441 (a)-(b).
Section
assert that the Court possesses subject matter jurisdiction
actions arising under the Constitution,
99
See 28 U.S.C.
also known as "arising under" jurisdiction.
1331 grants federal district courts "original
based on
jurisdiction
laws, or treaties of the United States."
1331
of all civil
In turn,
9
1441, the
general removal statute, permits "any civi I action brought in a State court of which the district
courts of the United States have original jurisdiction"
defendants,
to be "removed
by the defendant
or the
to the district court of the United States for the district and division embracing
place where such action is pending."
claim "arising
9
28 V.S.c.
under the Constitution,
treaties
1441(a).
When jurisdiction
or laws of the United
"removable without regard to the citizenship or residence of the parties."
The "'presence
pleaded complaint
or absence
of federal-question
rule," which provides
jurisdiction
that federal jurisdiction
question is presented on the face of the plaintiffs
Id.
by the "well-
exists only when a federal
The "existence
normally does not create statutory 'arising under' jurisdiction,
the case is
1441(b)?
is governed
properly pleaded complaint.'"
Bank of La., 522 U.S. 470, 475 (1998) (citation omitted).
is based on a
States,"
9
the
Rivet v. Regions
of a federal defense
and 'a defendant [generally]
may
not remove a case to federal court unless the plainl!!ts complaint establishes that the case "arises
7 Defendants do not assert that the Court possesses subject matter jurisdiction
on the basis
of diversity of citizenship. Regardless of the citizenship of the parties, the amount in controversy
falls far below the $75,000 threshold applicable to diversity cases. See 28 U.S.C. 9 I 332(a).
-6-
j
Aetna Health, Inc. v. Davila, 542 U.S. 200, 207 (2004) (internal citations
under" federal law.'''
omitted) (emphasis
allegations
in original).
in a plaintiffs
"Ordinarily
complaint."
federal pre-emption
is raised as a defense to the
Caterpillar Inc. v. Williams, 482 U.S. 386,392
(1987).
Thus, it is "settled law that a case may not be removed to federal court on the basis of a federal
defense, including the defense of pre-emption, even if the defense is anticipated
complaint,
in the plaintiff s
and even if both parties concede that the federal defense is the only question truly at
issue." Id. at 393 (emphasis added).
As a narrow exception to the foregoing principles,. however, the Supreme Court has held
that federal question jurisdiction
is satisfied "when a federal statute wholly displaces the state-
law cause of action through complete pre-emption."
1, 8 (2003) (emphasis
Beneficial Nat 'I Bank v. Anderson, 539 U.S.
added); see also Vaden v. Discover Bank, 556 U.S. 49, _'
1262, 1273 (2009); Davila, 542 U.S. at 207-08.
statute completely pre-empts
The Court has explained:
129 S. Ct.
"When [aJ federal
[aJ state-law cause of action, a claim which comes within the scope
of that cause of action, even if pleaded in terms of state law, is in reality based on federal law."
Beneficial, 539 U.S. at 8.8
Defendants
claim
that FEHBA
provision, codified at 5 U.S.C.
is such a statute.
S 8902(m)(1),
Notably,
FEHBA's
preemption
states:
8 The Supreme Court has found complete preemption in the context of S 301 of the Labor
Management Relations Act ("LMRA"), see, e.g., Caterpillar, supra, 482 U.S. 386 (1987); Avco
Corp. v. Aero Lodge No. 735, Int'l Ass 'n of Machinists & Aerospace Workers, 390 U.S. 557
(1968); certain claims covered by the Employee Retirement Income Security Act ("ERISA"),
see, e.g., Davila, supra, 542 U.S. 200; Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58 (1987);
the National Bank Act, see Beneficial, supra,.539 U.S. 1; and certain claims involving Native
American tribal rights, see Oneida Indian Nation ofN.Y. State v. Oneida County, 414 U.S. 661
(1974). "The courts of appeals and the district courts have extended the complete-preemption
doctrine to a number of other substantive law contexts."
WRIGHT, MILLER, COOPER &
STEINMAN,14B FEDERALPRACTICE& PROCEDURES 3722.2, at 507 (4th ed. 2009, 2011 Supp.).
-7-
The terms of any contract under this chapter which relate to the nature, provision,
or extent of coverage or benefits (including payments with respect to benefits)
shall supersede and preempt any State or local law, or any regulation issued
thereunder, which relates to health insurance or plans.
Claiming that FEHBA completely
preempts otherwise applicable
provides a basis for subject matter jurisdiction,
state law, and thereby
defendants rely on several cases: Botsford v. Blue
Cross & Blue Shield of Montana, Inc., 314 F.3d 390 (9th Cir. 2002) (reversing district court's
dismissal,
for lack of subject matter jurisdiction,
for reimbursement
of medical expenses);
of FEHBA plan enrollee's
St. Mary's Hosp. v. Careftrst of Maryland, 192 F.
Supp. 2d 384 (D. Md. 2002) (denying health care provider's
subject matter jurisdiction,
suit against carrie,
motion to remand,
its suit against carrier for reimbursement
for lack of
for services provided
FEHBA enrollees, which carrier had removed on the basis of federal question jurisdiction);
to
and
several other pre-2006 district court decisions9
The cases on which defendants rely are no longer good law for the proposition
by defendants.
advanced
Although defendants cite Empire HealthChoice Assurance, Inc. v. McVeigh, 547
U.S. 677 (2006), in their general discussion of FEHBA,they
Court held unequivocally
in that case that FEHBA
omit to mention that the Supreme
does not completely preempt
otherwise
applicable state law, and therefore does not confer federal question jurisdiction.
Empire arose from litigation over the proceeds of a settlement
of a tort claim.
An
enrollee in a FEHBA health benefits plan, Joseph McVeigh, was injured in an accident in 1997
9 In addition to Bot,jord and St. Mary's Hospital, defendants cite McCoy v. Unicore Life
& Health Ins. Co., No. 04-C-1126, 2004 U.S. Dist. LEXIS 20798 (N.D. III. Oct. 18, 2004)
(denying plaintiff FEHBA plan enrollee's motion to remand suit for reimbursement against
carrier); Rievely v. Blue Cross Blue Shield of Tenn., 69 F. Supp. 2d 1028 (E.D. Tenn. 1999)
(same); and Kight v. Kaiser Found. Health Plan of the Mid At!. States, Inc., 34 F. Supp. 2d 334
(E.D. Va. 1999) (same).
-8-
and died in 2001. Jd. at 687. Between McVeigh's
health plan, paid approximately
$160,000
injury and his death, Empire, the carrier of the
for McVeigh's
medical care.
Jd.
Subsequently,
his
survivors and the estate brought suit in state court against the parties allegedly responsible for the
accident, and obtained over $3 million in settlement.
Jd. Empire then sued McVeigh's
care. Jd. at 688. Empire
federal court, seeking to recover the amount it had paid for McVeigh's
asserted that the federal court had subject matter jurisdiction
the claim concerned entitlement
estate in
under 28 U.S.c.
~ 1331, because
to health benefits under FEHBA, and was thus a claim "arising
under" federal law. [d. The district court disagreed, however, and dismissed for lack of subject
matter jurisdiction.
The Second Circuit affirmed, and so did the Supreme Court.
The Supreme
provision,
Court closely
and determined
Empire, 547 U.S. at 698.
displace
ordinarily
analyzed
5 U.S.C.
that it "is not sufficiently
applicable
FEHBA's
broad to confer
It said: "If Congress intends a preemption
instruction
completely
thereby,
Congress has not done so here,"'
Moreover, the Court observed that the text of ~ 8902(m)(l)
to render inoperative
preemption
federal jurisdiction."
state law, and to confer federal jurisdiction
expected to make that atypical intention clear.
citations omitted).
~ 8902(m)(l),
to
it may be
Jd. (internal
"does not purport
any and all state laws that in some way bear on federal employee-benefit
plans." Jd.
The Court contrasted
the FEHBA provision with the text of ~ 514(a) of ERISA, which
provides that certain portions of ERISA '" supersede any and all State laws insofar as they may
now or hereafter relate to any employee benefit plan,'''
at 29 U.S.c.
id. (quoting ~ 5 14(a) of ERISA, codified
~ I 144(a)), and which the Supreme Court has held completely
giving rise to federal question jurisdiction,
in some circumstances.
-9-
preempts state law,
The Court remarked that
FEHBA is "unusual
in that it renders preemptive
provisions enacted by Congress."
Ul
8902(m)(I)]
contract terms in health insurance plans, not
ld. at 697. In the Empire Court's view, "a mouest reading of
is in order," because
S 8902(m)(I)
"declares no federal law preemptive";
it gives preemptive effect to the "terms of an OPM-[ carrier] negotiated contract."
sum," the Court concluded
that "the presentations
... fail[ed] to establish
that
Therefore,
jurisdiction,"
it "extract[ed]
from
S
8902(m)(l)
no prescription
fd. at 698. "In
S
8902(m)(I)
plans .... " fd.
leaves no room for any state law potentially bearing on federal employee-benefit
at 699.
rather,
for federal-court
ld.
As defendants acknowledge,
the Fourth Circuit has not determined
either before or after Empire, whether FEHBA establishes
in a reported opinion,
complete preemption.
Although the
Fourth Circuit was presented with that question in Caudill v, Blue Cross & Blue Shield o.fNorlh
Carolina, Inc" 999 F,2d 74 (4th Cir, 1993), the Court declined to resolve it. See id. at 77 ("[W]e
need not answer the question whether the FEHBA completely
preempts state law claims under
federal health insurance contracts.").
In Caudill, an enrollee in a FEHBA plan sued her carrier in state court for breach of
contract, seeking to recover the cost of high dose chemotherapy
treatment for breast cancer.
fd.
at 76, Her carrier denied coverage, and the carrier's decision was affirmed by OPM, leading to
the enrollee's
state court suit.
federal question jurisdiction.
fd. at 77, The carrier removed to federal court on the basis of
The federal district court denied the enrollee's
and thereafter granted summary judgment
to the carrier.
the district court's denial of her motion to remand.
federal question jurisdiction:
motion to remand,
fd. On appeal, the enrollee challenged
The carrier advanced two alternate bases for
first, that FEHBA completely preempted state law; and second, that
- 10-
.
-------------~
the suit was governed by "federal common law," which the carrier argued "supplants
state law
either partially or entirely regardless of Congress'
Id. at 77.
intent to preempt the area involved."
As noted, the Court did not decide the question
Rather, it held that removal was appropriate
Id.
common
law.
However,
contract
law would undermine
of complete
statutory
preemption.
because the area of law was governed by federal
the Fourth Circuit observed that "the very application
the uniformity
envisioned
by Congress
of state
when it delegated
authority to interpret health benefit contracts to OPM."
Id. at 79. Thereafter,
Hospital, supra, 192 F. Supp. 2d 384, Judge Nickerson
relied on Caudill in determining
FEHBA completely
emphasize(d]
federal
benefits to federal employees."
Court
expressly
jurisdiction
interest'
in regulating
Id. at 387-88.
the provision
It is noteworthy,
Caudill in Empire, rejecting
overruled
in St. Mary's
that
state law, observing that the Fourth Circuit in Caudill "strongly
preempts
the 'uniquely
the
in that case could arise either from FEHBA
the
of health
therefore,
claim
statutory
care and
that the Supreme
that
federal
preemption
question
or a federal
common law basis. See Empire, 547 U.S. at 689 (citing Caudill among cases presenting circuit
split).
In the wake of Empire, several federal courts have recognized
that FEHBA does not
completely preempt state law, and therefore a FEHBA preemption defense cannot form the basis
of federal question jurisdiction.
See, e.g., Pollitt v. Health Care Servo Corp., 558 F.3d 615, 616
(7th Cir.) (stating that Empire "holds that federal law does not completely
health-insurance
removal under
coverage
9
for federal workers"
and that "the district court erred in allowing
1441 and dismissing the suit as completely preempted"),
Ct. 296 (2009) (petition subsequently
occupy the field of
cert. granted, 130
s.
dismissed by joint stipulation of the parties); Farnsworth v.
- II -
-
-----
------------------------------
Harston, No. 2: I 0-cv-238 CW, 2011 WL 285811 (D. Utah Jan. 27, 2011) (citing Empire, stating
that "FEHBA does not give rise to complete preemption,"
and granting motion to remand); Wesl
Virginia ex reI. McGraw v. CVS Pharmacy, Inc" 748 F. Supp. 2d 580, 583-85 (S.D.W.Va. 2010)
(remanding
"complete
to state court for lack of subject matter jurisdiction
preemption
did not apply" to FEHBA,
and therefore
because
Empire holds that
"FEHBA
does not provide
Van Horn v. Ark. Blue Cross & Blue Shield, 629 F. Supp.
federal subject matter jurisdiction");
2d 905, 907-12 (E.D. Ark. 2007).
do not cite any post-Empire cases holding that FEHBA preemption
Defendants
for subject matter jurisdictionW
decided after 2006.
To be sure, defendants
cite two unreported
See Barnes v. Humana, Inc., No. 8:09-CV-524-T-30MAP,
is a basis
cases that were
2009 U.S. Dis!.
LEXIS 52673 (M.D. Fla. June 23, 2009); Pellicano v. Blue Cross Blue Shield Ass'n, Civ. No.
(M.D. Pa. Aug. 11,2011)
3:ll-CV-406
(report and recommendation
of magistrate judge).
But,
those decisions considered the issue of FEHBA preemption as a substantive defense; they did not
hold that FEHBA
completely preempts applicable
state law and did not hold that FEHBA
preemption provides a basis for subject matter jurisdiction.
In
sum,
Nevertheless,
Empire foredoses
it does not necessarily
defendants'
II
assertion
of
subject
matter
jurisdiction.
foreclose their sllbstantive defense that plaintiffs
daim is
The Court's research has uncovered one unreported post-2006 district court decision
upon FEHBA preemption for removal jurisdiction, but that decision does not cite
Empire. See Ala. Dental Ass 'n v, Blue Cross & Blue Shield of Ala., Inc., No. 205-CV -1230MEF, 2007 WL 25488 (M.D. Ala. Jan. 3, 2007). It is noteworthy that the case was removed to
federal court and plaintiffs motion to remand was fully briefed before the Supreme Court issued
its decision in Empire.
10
relying
II Two of the pre-Empire cases cited by defendants also considered preemption
only as a
substantive matter, and not a jurisdictional malter. See Carter v, Blue Cross Blue Shield of Fla.,
Inc., 61 F. Supp. 2d. 1241 (N.D. Fla. 1999); Negron v. Patel, 6 F. Supp. 2d 366 (E.D. Pa. 1998).
- 12 -
preempted
by FEHBA.
The merits
of their pre~mption
defense
(which
is a subject
defendants'
motions to dismiss) will be a matter for the state court to determine on remand.
of
12
Conclusion
For the foregoing reasons, I conclude that this Court lacks subject matter jurisdiction
this case.
Accordingly,
pursuant to 28 U.S.C.
9
1447(c), the case must be remanded
District Court of Maryland (Baltimore City). An Order implementing
Date:
October 5, 2011
over
to the
this ruling follows.
/s/
Ellen Lipton Hollander
United States District Judge
Defendants rely principally on SI. Mary's Hospital for the proposition that a health care
provider's state-law claim against a FEHBA plan carrier is preempted by FEHBA. Although
Empire overruled St. Mary's Hospital's holding as to subject matter jurisdiction, St. Mary's
Hospital may remain persuasive authority with regard to whether health care providers' claims
against FEHBA carriers are preempted as a substantive matter.
It is worth pointing out,
however, that there is also authority to the contrary. In Cedars-Sinai Medical Center v. National
League of Postmasters, 497 F.3d 972, 975-80 & n.4 (9th Cir. 2007), the Ninth Circuit expressly
rejected St. Mary's Hospital, and held that a medical provider's suit against a FEHBA plan
carrier was not substantively preempted (in large part because FEHBA's administrative remedy
through OPM is available only to plan enrollees and their covered family members, not to health
care providers).
It will be for the state court on remand to determine whether St. Mary's
Hospital or Cedars-Sinai has the better of the argument.
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