Body & Mind Acupuncture, Inc. v. Humana Health Plan, Inc.

Filing 16

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS MOTION TO REMAND DKT. NO. 9 . Signed by District Judge Irene M. Keeley on 2/16/2017. (Copy counsel of record)(jmm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
BODY & MIND ACUPUNCTURE,
d/b/a BODY & MIND ACUPUNCTURE
& WELLNESS CENTER, a West
Virginia corporation,
Plaintiff,
v.

//

CIVIL ACTION NO. 1:16CV211
(Judge Keeley)

HUMANA HEALTH PLAN, INC.,
a foreign corporation,
Defendant.
MEMORANDUM OPINION AND ORDER DENYING
PLAINTIFF’S MOTION TO REMAND [DKT. NO. 9]
On September 29, 2016, the plaintiff, Body & Mind Acupuncture,
Inc. (“Body & Mind”), filed a complaint against the defendant,
Humana Health Plan, Inc. (“Humana”), in the Circuit Court of
Monongalia County, West Virginia (Dkt. No. 1-2). Humana timely
removed the case to this Court on November 3, 2016, citing 28
U.S.C. § 1442(a)(1), the Federal Officer Removal Statute (Dkt. No.
1). On December 2, 2016, Body & Mind moved to remand the case (Dkt.
No. 9). After full briefing, the Court heard argument on the motion
at a scheduling conference on January 30, 2017 (Dkt. No. 13), and
for the reasons that follow DENIED the motion (Dkt. No. 9).
I. BACKGROUND
Body & Mind is a healthcare provider that offers acupuncture
treatment

in

Monongalia

County,

West

Virginia.

It

is

a

participating provider for coverage provided by Humana, a Medicare

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MEMORANDUM OPINION AND ORDER DENYING
PLAINTIFF’S MOTION TO REMAND [DKT. NO. 9]
Advantage organization (“MAO”) for West Virginia’s Public Employees
Insurance Agency (Dkt. No. 1-2 at 1). The dispute in this case is
based on certain billing codes that Body & Mind used on claims
forms submitted to Humana. Id. at 2.
The complaint alleges that, on March 2, 2016, Humana informed
Body & Mind that it had been using an erroneous “primary procedure
code,” resulting in its receipt of improper payments from Humana.
More particularly, Humana allegedly claimed that Body & Mind had
used an “add on code” without using the prerequisite “primary
procedure code.” Body & Mind claims that it used the proper codes
assigned by the federal Centers for Medicare and Medicaid Services
(“CMS”) when it billed for “acupuncture w/o stimulation 15 minutes”
and “acupuncture w/o stimulation additional 15 minutes.” Body &
Mind informed Humana of its perceived error and also requested that
Humana explain its contentions or identify the proper primary
procedure code. At the time Body & Mind filed its complaint,
however, Humana had not responded to those inquiries. Id. at 2. The
complaint further alleges that, in order to recoup the supposedly
improper overpayments, Humana began withholding payments to Body &
Mind on unrelated claims. Id. at 3.
Body & Mind seeks a declaration that Humana has not overpaid
Body & Mind, and thus has no basis for recouping service fees. It
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also seeks an injunction preventing Humana from recouping any
alleged overpayment. Id. Finally, Body & Mind makes the following
claims for relief under West Virginia law: conversion, breach of
implied contract and course of dealing, and unjust enrichment. Id.
at 4-5. As monetary damages, Body & Mind claims that Humana has
wrongfully withheld $1,604.58 and has threatened to recoup payment
exceeding $6,000, to which Body & Mind claims an entitlement. Id.
at 5.
II. APPLICABLE LAW
A.

Federal Officer Removal
Under 28 U.S.C. § 1442(a)(1), a civil action commenced in

state court can be removed to the district court if it is against
[t]he United States or any agency thereof or any officer
(or any person acting under that officer) of the United
States or of any agency thereof, in an official or
individual capacity, for or relating to any act under
color of such office . . . .
In other words, a defendant may remove if it establishes that “(1)
it is a federal officer or a person acting under that officer; (2)
a colorable federal defense; and (3) the suit is for a[n] act under
color of office, which requires a causal nexus between the charged
conduct and asserted official authority.” Ripley v. Foster Wheeler
LLC, 841 F.3d 207, 209-10 (4th Cir. 2016) (quoting Jefferson Cty.,

3

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Ala. v. Acker, 527 U.S. 423, 431 (1999))(internal citation and
quotation omitted). This rule operates as an exception to the wellpleaded complaint rule, which usually prevents removal on the basis
of a federal defense. Id. at 210; see also Mesa v. California,
489 U.S. 121, 136-37 (1989).
Typically,

federalism

counsels

that

removal

jurisdiction

should be strictly construed. Palisades Collections LLC v. Shorts,
552 F.3d 327, 334 (4th Cir. 2008) (citing Md. Stadium Auth. v.
Ellerbe Becket Inc., 407 F.3d 255, 260 (4th Cir. 2005)). The
Supreme Court has made clear, however, that the usual presumption
against removal does not apply to § 1442(a)(1); rather, such
removal jurisdiction must be liberally construed. Watson v. Phillip
Morris Cos., Inc., 551 U.S. 142, 147 (2007). Nonetheless, “[t]he
burden of establishing federal jurisdiction is placed upon the
party seeking the removal.” Mulcahey v. Columbia Organic Chems.,
Inc., 29 F.3d 148, 151 (4th Cir. 1994). The Court may only consider
the facts on the record at the time of removal. See Lowrey v. Ala.
Power Co., 483 F.3d 1184, 1213-15 (11th Cir. 2007).
B.

Medicare Program
The Medicare Act (the “Act”), 42 U.S.C. § 1395 et seq.,

established a federally subsidized health insurance program to be

4

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administered

by

the

Secretary

of

Health

and

Human

Services

(“Secretary”). Heckler v. Ringer, 466 U.S. 602, 605 (1984). In
turn,

the

Secretary

delegated

to

CMS

the

responsibility

for

administering Medicare.
Part A of the Act provides insurance for hospital and posthospital costs, while Part B establishes a voluntary program that
includes coverage for expenses not covered by Part A, “such as
reasonable charges for physicians’ services, medical supplies, and
laboratory tests.” Reg’l Med. Transp., Inc. v. Highmark, Inc.,
541 F. Supp. 2d 718, 723-24 (E.D. Pa. 2008) (citing 42 U.S.C.
§§ 1395j-1395w-4). Part B is administered “through contracts with
medicare administrative contractors,” 42 U.S.C. § 1395u(a), which
“act on behalf of CMS in carrying out certain administrative
responsibilities that the law imposes” and are indemnified by CMS
for those actions. 42 C.F.R. § 421.5.1

1

“Under the Medicare Act, a ‘carrier’ is a private insurance
company that contracts with the Department of Health and Human
Services to administer claims submitted under the Medicare Part B
program, while a ‘fiscal intermediary’ is a private insurance
company that contracts with the Department of Health and Human
Services to administer major medical claims under the Medicare Part
A program. Fiscal intermediaries and carriers perform comparable
roles.” United States ex rel Rahman v. Oncology Assocs., P.C.,
198 F.3d 502, 512 n.2 (4th Cir. 1999).
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Part C, also known as Medicare Advantage (“MA”), was enacted
in 1997. It provides an alternative program by which individuals
can receive Medicare benefits through a variety of private plans
rather

than

Parts

A

and

B.

Congress

hoped

that

this

“would

ultimately create a more efficient and less expensive Medicare
system.” In re Avandia Mktg., Sales Practices & Prods. Liab.
Litig., 685 F.3d 353, 363 (3d Cir. 2012). In order to administer
plans under Part C, private companies, referred to as Medicare
Advantage organizations (“MAO”), contract with CMS. 42 U.S.C.
§ 1395w-27. A contracting MAO receives a set monthly payment for
each individual to whom it provides Part C coverage and “assume[s]
full financial risk” should an individual’s costs exceed that
amount. 42 U.S.C. §§
extensive

regulation,

1395w-23, 1395w-25. MAOs are subject to
42

C.F.R.

§§

422.1-422.2615,

but

their

contract with CMS gives them autonomy to take advantage of the
private market by designing plans, choosing providers, and setting
costs. Ohio State Chiropractic Ass’n v. Humana Health Plan Inc.,
647 Fed. App’x 619, 623 (6th Cir. 2016). The regulations that MAOs
must follow include ones that govern their relationship with
providers. 42 C.F.R. §§ 422.200-422.224.

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III. DISCUSSION
In support of its motion to remand, Body & Mind argues that
Humana’s removal is doomed “because it cannot demonstrate that it
acted under the direction of a federal officer, and the necessary
causal nexus” (Dkt. No. 9-1 at 3). After reviewing the parties’
arguments and considering Humana’s role as an MAO administering
Part C coverage under the Act, the Court concludes that Humana is
entitled to take advantage of the Federal Officer Removal Statute
in this case. 28 U.S.C. § 1442(a)(1).
A.

Person
Body & Mind acknowledges that Humana, although a corporation,

is a “person” within the meaning of § 1442(a)(1) (Dkt. No. 9-1 at
3). Indeed, “in determining the meaning of any Act of Congress,
unless the context indicates otherwise . . . the words ‘person’ and
‘whoever’ include corporations.” 1 U.S.C. § 1. Courts routinely
have held that corporations are entitled to take advantage of
§ 1442(a)(1) because they satisfy its “person” requirement. See,
e.g.,

Highmark,

Inc.,

541

F.

Supp.

2d

at

723-24

(“[T]he

overwhelming majority of federal courts have held that corporations
qualify as persons under the federal officer removal statute.”);
Pack v. AC and S, Inc., 838 F. Supp. 1099, 1102-03 (D. Md. 1993)

7

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(giving a broad construction to the term “person” under § 1442).
Therefore, the Court finds that Humana is a “person” that may seek
to establish removal jurisdiction under § 1442(a)(1).
B.

Colorable Federal Defense
Body & Mind also does not contest that Humana has asserted a

“colorable federal defense,” a key requirement of § 1442(a)(1).
Ripley, 841 F.3d at 209-10. “The defendant need not prove that he
will actually prevail on his federal immunity defense in order to
obtain removal.” Jamison v. Wiley, 14 F.3d 222, 238 (4th Cir.
1994). Rather, the statute is meant to “cover all cases where
federal officers can raise a colorable defense arising out of their
duty to enforce federal law.” Mesa v. California, 489 U.S. 121, 133
(1989) (quoting Willingham v. Morgan, 395 U.S. 402, 406-07 (1969).
Indeed, “‘[o]ne of the primary purposes’ of federal officer removal
is to provide a federal forum for a federal defense.” Ripley,
841 F.3d at 210 (quoting Willingham, 395 U.S. at 407).
Here, in its notice of removal, Humana asserted two federal
defenses:

1)

exhaustion

of

administrative

remedies

and

2)

preemption under the Act (Dkt. No. 1 at 7-9). Exhaustion and
preemption are federal defenses that meet the requirement of
§ 1442(a)(1) if they are, in fact, colorable under the facts of the

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case. See, e.g., Watson v. Philip Morris Cos., Inc., a Corp.,
420 F.3d 852, 862-63 (8th Cir. 2005), rev’d on other grounds, 551
U.S. 142 (2007) (preemption); Mann v. Reeder, No. 1:10-CV-00133JHM, 2010 WL 5341934 (W.D. Ky. 2010) (preemption and exhaustion);
Highmark, Inc., 541 F. Supp. 2d at 725 (exhaustion).
Humana asserts that because its claims “arise under” the
Medicare Act, Body & Mind must first exhaust its administrative
remedies through CMS before seeking judicial review (Dkt. No. 1 at
7). “[E]xhaustion of administrative remedies is required for all
claims

arising

under

the

Medicare

Act.”

Buckner

v.

Heckler,

804 F.2d 258, 259 (4th Cir. 1986). In order to arise under the
Medicare Act, a claim either must be “inextricably intertwined”
with a claim for benefits or “furnish[] both the standing and
substantive basis for the presentation of the claim.” Id. (quoting
Ringer, 466 U.S. at 615) (internal quotation omitted).
At the very least, the regulations permit a provider2 to seek
an organization determination of certain payment decisions, 42
C.F.R. § 422.566(b)-(c), which may then be reviewed through the
administrative process. 42 C.F.R. §§ 422.578, 422.600, 422.608.

2

A “provider” is any individual or entity that is “engaged in
the delivery of health care services in a State and is licensed or
certified.” 42 C.F.R. § 422.2.
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Courts, however, are split concerning whether providers, rather
than enrollees, are required to exhaust administrative remedies
under Part C. Compare Ohio State Chiropractic, 647 Fed. App’x 619
(questioning

whether

a

provider

must

exhaust

administrative

remedies concerning “private billing dispute[s]”); RenCare, Ltd. v.
Humana Health Plan of Texas, 395 F.3d 555 (5th Cir. 2004) (holding
that a provider’s claims for reimbursement did not “arise under”
Medicare); with Assocs. Rehab. Recovery, Inc. v. Humana Med. Plan,
Inc., 76 F. Supp. 3d 1388, 1392 (S.D. Fla. 2014) (“[T]he way in
which claims for benefits are resolved will have a financial impact
on the government and enrollees.”); Prime Healthcare Huntington
Beach, LLC v. SCAN Health Plan, Nos. SACV 16-01226-DFM, SACV 1601247-DFM, SACV 16-01284-DFM, 2016 WL 5745130 (C.D. Cal. Sept. 27,
2016) (concluding that a non-participating provider had to exhaust
administrative

remedies

for

“claims

aim[ed]

directly

at

reimbursement for alleged shortfalls for Medicare benefits”); see
also Nichole Med. Equip. & Supply, Inc. v. TriCenturion, Inc.,
694 F.3d 340, 347-49 (3d Cir. 2012) (holding that a claim that the
defendant

“improperly

withheld

payments

to

offset

purported

overpayments” was “inextricably intertwined” with a claim for
benefits).

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The Fourth Circuit has not decided whether Body & Mind’s
particular claims “aris[e] under” the Medicare Act, and thus must
be administratively exhausted. The Court, however, need not decide
whether

Humana’s

exhaustion

defense

will

ultimately

prove

successful, as one of the main purposes of § 1442(a)(1) is to
provide a federal forum for federal defendants to assert federal
defenses. Ripley, 841 F.3d at 210. Here, Humana has identified a
sufficiently colorable federal defense.3
C.

“Acting Under” and “Causal Nexus”
Body & Mind argues that Humana cannot satisfy the remaining

requirements of § 1442(a)(1), that it was “acting under” a federal
officer and that there is a “causal nexus” between its official
action and the injury alleged (Dkt. No. 9-1 at 3). Although the
Fourth Circuit has articulated these requirements as distinct
elements, see Ripley, 841 F.3d at 209-10, they tend to merge into
a single inquiry: that is, whether “the acts that form the basis
for the state . . . suit were performed pursuant to an officer’s
3

Because Humana has established that Body & Mind’s failure to
exhaust administrative remedies is a colorable federal defense, the
Court need not reach the question of whether Humana’s preemption
defense is likewise colorable. The Court notes, however, that in
support of the defense, Humana cited only one case from the Ninth
Circuit that dealt with Medicare Part D and state law claims not at
issue here. See Do Sung Uhm v. Humana, Inc., 620 F.3d 1134 (9th
Cir. 2010).
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direct orders or to comprehensive and detailed regulations.” In re
Methyl Tertiary Butyl Ether Prods. Liab. Litig., 488 F.3d 112, 124
(2d Cir. 2007) (quoting Ryan v. Dow Chem. Co., 781 F. Supp. 934,
946

(E.D.N.Y.

1992)).

It

is

clear

in

this

case

that

Humana

satisfies both of these requirements.
1.

Acting Under

The Supreme Court has noted that “acting under” is a broad
phrase that must be “liberally construed.” Watson, 551 U.S. at 147.
“[T]he broad language of § 1442(a)(1) must be applied in a manner
that effectuates the central congressional policy of securing a
federal forum for persons who assist the federal government in a
manner

that

risks

the

imposition

of

state

law

liability.”

Stephenson v. Nassif, 120 F. Supp. 3d 884, 888 (E.D. Va. 2015).
Thus, a private person is “acting under” a federal superior if the
person is under “subjection, guidance, or control” and makes “an
effort to assist, or to help carry out, the duties or tasks of the
federal superior.” Watson, 551 U.S. at 152; see also Carter v.
Monsanto Co., 635 F. Supp. 2d 479, 488 (S.D.W. Va. 2009) (quoting
Pack, 838 F. Supp. at 1103) (“[A] defendant acts under the control
of a federal officer if the federal officer has ‘direct and
detailed control’ over the activity.”). The classification does not

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extend to highly regulated companies that simply comply with the
law, even complex regulatory orders, Watson, 551 U.S. at 152, nor
to acts taken “under the general auspices of federal direction.”
Good v. Armstrong World Indus., Inc., 914 F. Supp. 1125, 1128 (E.D.
Pa. 1996).
In Watson, the Supreme Court considered “whether the fact that
a federal regulatory agency directs, supervises, and monitors a
company’s activities in considerable detail brings that company
within the scope” of the federal officer removal statute. 551 U.S.
at 145. There, the plaintiffs had sued Phillip Morris in Arkansas
state court, alleging that it had engaged in deceptive business
practices in labeling its “light” cigarettes. The Supreme Court
unequivocally held that “a highly regulated firm cannot find a
statutory basis for removal in the fact of federal regulation
alone.” Id. at 153. Compliance with federal law does not fall
within the “acting under” requirement. Id. Rather, a private person
must “assist” or “help carry out” federal duties to take advantage
of the statute. Id. at 152. The Court also noted that a government
contractor might qualify for removal when its relationship with the
government

is

“an

unusually

close

one

involving

detailed

regulation, monitoring, or supervision.” In that circumstance, the
contractors either provide something that the Government needs or
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provide a service it “would have had to perform.” Id. at 153-54
(referencing a case where Dow Chemical provided Agent Orange to the
Government).
Following Watson, courts around the country have considered
whether private insurers under Parts C and D fit into the “private
contractor” category contemplated by the Supreme Court. A number of
district courts have held that they do. See, e.g., Beaumont Foot
Specialists, Inc. v. United Healthcare of Tex., Inc., No. 1:15-cv216, 2015 WL 9257026, at *4 (E.D. Tex. Dec. 14, 2015) (reasoning
that MAO’s have been delegated authority to carry out a basic
government task and are governed by regulations that control their
payments to providers); Assocs. Rehab., 76 F. Supp. 3d at 1391;
Einhorn v. CarePlus Health Plans, Inc., 43 F. Supp. 3d 1268, 1270
(S.D. Fla. 2014); Woodruff v. Humana Pharmacy Inc., 65 F. Supp.
3d 588, 590–91 (N.D. Ill. 2014) (reasoning that “[b]ecause the
Secretary has delegated the task of administering prescription drug
benefits to PDP sponsors like Humana, Humana acts under the
authority of a federal officer. Humana is not merely complying with
federal law—such as those requiring testing of products . . . but
assisting the federal government in carrying it out.”); Mann v.
Reeder, No. 1:10–CV–00133, 2010 WL 5341934, at *2 (W.D. Ky. Dec.
21, 2010) (reasoning that Humana did more than act under the
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“general auspices” of a federal agency and provided assistance to
CMS that was “beyond mere compliance with the law”), overruled by
Ohio State Chiropractic, 647 Fed. App’x 619. Other courts have
exercised jurisdiction over such removed cases when no motion to
remand was filed. Cupp v. Johns, 2014 WL 916489 (W.D. Ark. Mar. 10,
2014); Rudek v. Presence Our Lady of Resurrection Med. Ctr., No. 13
C 06022, 2014 WL 5441845, at *1 & n.1 (N.D. Ill. Oct. 27, 2014).
To this Court’s knowledge, the Sixth Circuit is the only court
of

appeals

to

address

this

particular

question,

and

it

has

concluded, albeit in an unpublished opinion, that MAOs are not
“acting under” CMS. Unlike the lower courts, the circuit court was
“not convinced that the regulation, supervision, and control to
which Humana is subject connote the sort of unusually close
relationship necessary for a private contractor to ‘act under’ a
federal agency.” Ohio State Chiropractic, 647 Fed. App’x at 624. It
reasoned that MAOs are distinct from Part B carriers held to act
under a federal officer.4 While Part B insurers act on behalf of
CMS and are indemnified by it, no such provision exists for MAOs,
and

although

MAOs

are

“subject

to

extensive

regulatory

requirements,” their plans are not closely supervised by CMS. Id.

4

Highmark, Inc., 541 F. Supp. 2d at 724 (compiling cases).
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at 623. In addition, the Sixth Circuit reasoned that MAOs do not
perform a task that the Government would otherwise have to perform.
“If no health insurer chose to contract with CMS as an MAO, it is
doubtful the government would get into the business of offering its
own MA plans.” Rather, it would continue to administer Medicare
under Parts A and B. Id. at 623-24.
The conclusion in Ohio State Chiropractic appears inconsistent
with

the

broad

and

liberal

construction

of

“acting

under”

articulated by the Supreme Court in Watson. 551 U.S. at 147. More
persuasive is the reasoning of the majority of lower courts that
MAOs administering Part C benefits are “acting under” CMS in a
manner that entitles them to removal under § 1442(a)(1).
In the first place, it is apparent that Humana helps CMS
“fulfill [a] basic governmental task.” Watson, 551 U.S. at 153.
Pursuant to its contract with CMS, Humana administers Medicare
benefits

through

the

private

market.

Congress

arranged

this

construct for the express purpose of administering governmentprovided Medicare benefits in a cheaper and more efficient manner.
Avandia, 685 F.3d at 363. Absent MAOs such as Humana, CMS would be
obligated to administer Medicare benefits through Parts A and B to

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those individuals who currently elect Part C coverage.5 Therefore,
Humana’s activities “involve an effort to assist, or to help carry
out, the duties or tasks of the federal superior” in a manner much
more significant than “simply complying with the law” to which it
is subject. Watson, 551 U.S. at 153. The Court finds that this
responsibility is more akin to a delegation of CMS administrative
obligations than a regulation of otherwise private insurance. See
Jacks v. Meridian Res. Co., LLC, 701 F.3d 1224, 1233 (8th Cir.
2012) (noting the Supreme Court’s distinction between regulation
and delegation).
In addition, the detailed regulations governing MAOs, although
insufficient on their own, further underscore that MAOs are under
CMS’s “subjection, guidance, and control.” Significantly, pursuant
to the regulations, MAOs make determinations that are directly
subject

to

administrative

review

by

CMS.

Although

MAOs

have

internal procedures for providers seeking determinations, many of
those

decisions

are

subject

to

review

through

administrative

appeals. 42 C.F.R. §§ 422.566, 422.578, 422.600, 422.608. That CMS
5

In reaching a contrary conclusion, the Sixth Circuit
reasoned that MAOs perform a discrete function by administering MA
plans that the government would not otherwise maintain. Ohio State
Chiropractic, 647 Fed. App’x at 623-24. The Court finds this an
inappropriately narrow view, as the inquiry should focus on whether
CMS would have to administer any benefits in the absence of MAOs.
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reviews Humana’s determinations concerning entitlement to benefits
evinces an “unusually close” relationship between the two. See
Watson, 551 U.S. at 153. Therefore, in this Court’s opinion, Humana
has satisfied the “acting under” requirement of the federal officer
removal statute.
2.

Causal Nexus

Body & Mind also contests that Humana satisfies the final
requirement of § 1442(a)(1), a “causal nexus” (Dkt. No. 9-1 at 4).
This is a low standard under which the defendant must “demonstrate
that the acts for which [it is] being sued . . . occurred because
of what [it was] asked to do by the Government.” In other words, it
must “establish that the act that is the subject of the Plaintiff’s
attack . . . occurred while [the] Defendant[] [was] performing
[its] official duties.” Isaacson v. Dow Chem. Co., 517 F.3d 129,
137-38 (2d Cir. 2008). Further, the Removal Clarification Act of
2011 added “or relating to” in the requirement that the act
complained of be “for or relating to any act under color of
office,” broadening the causal scope. See Ohio State Chiropractic,
647 Fed. App’x at 624. A defendant therefore need not show that the
challenged action was the action under federal control.

What it

must show is “(1) that [it] conducted some activity under the

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1:16CV211

MEMORANDUM OPINION AND ORDER DENYING
PLAINTIFF’S MOTION TO REMAND [DKT. NO. 9]
direct and detailed control of a federal officer, and (2) that
because of that activity or in the course of performing that
activity,” it committed the act alleged by the plaintiff. Carter,
635 F. Supp. 2d at 489.
The Court concludes that Humana’s alleged refusal to pay Body
& Mind is an act sufficiently related to its actions under CMS.
Prime Healthcare, 2016 WL 5745130; Beaumont Foot Specialists,
2015 WL 9257026, at *4; but see Woodruff, 65 F. Supp. 3d at 591;
Ohio State Chiropractic, 647 Fed. App’x at 624-25. Whether Humana
properly paid Body & Mind or used CMS mandated procedure codes,
those acts took place “because of . . . or in the course of
performing” what it was asked to do by the government – pay
healthcare providers for services rendered to beneficiaries of its
MA plans. This is enough to clear the low hurdle of causation. See
Smith v. Collection Tech., Inc., No. 2:15-cv-06816, 2016 WL 1169529
(S.D.W. Va. Mar. 22, 2016).
IV. CONCLUSION
For

the

reasons

discussed,

Humana

is

entitled

to

take

advantage of the federal officer removal statute in this case. 28
U.S.C. § 1442(a)(1). Therefore, the Court DENIES Body & Mind’s
motion to remand (Dkt. No. 9).

19

BODY & MIND v. HUMANA

1:16CV211

MEMORANDUM OPINION AND ORDER DENYING
PLAINTIFF’S MOTION TO REMAND [DKT. NO. 9]
It is so ORDERED.
The Court directs the Clerk to transmit copies of this Order
to counsel of record.
DATED: February 16, 2017.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

20