Tuesday, October 13, 2009
Today the Supreme Court granted certiorari in Health Care Service Corporation v. Pollitt (No. 09-38). The decision below is at 558 F.3d 615 (7th Cir. 2009). BNA reports that the questions presented are:
(1) Does the Federal Employee Health Benefits Act, 5 U.S.C. §§ 8901-14, completely preempt--and therefore make removable to federal court--a state suit challenging enrollment and health benefits determinations that are subject to the exclusively federal remedial scheme established in FEHBA?
(2) Does the federal officer removal statute, 28 U.S.C. § 1442 (a)(1), which authorizes federal removal jurisdiction over state court suits brought against persons "acting under" a federal officer when sued for actions "under color of [federal] ... office," encompass a suit against a government contractor administering a FEHBA plan, when the contractor is sued for actions taken pursuant to the government contract?
The Seventh Circuit's per-curiam opinion (Easterbrook, Rovner & Evans) held that further proceedings were necessary to determine whether federal officer removal was proper. On the complete preemption issue, it reasoned:
Preemption is a defense, and a federal defense does not allow removal. Things are otherwise for "complete preemption," the misleadingly named doctrine that applies when federal law has occupied a field, leaving no room for any claim under state law. "Complete preemption" is not a defense; instead it represents a conclusion that all claims on the topic arise under federal law, so that 28 U.S.C. § 1441 permits removal. But EmpireHealthChoice Assurance, Inc. v. McVeigh, 547 U.S. 677 (2006), holds that federal law does not completely occupy the field of health-insurance coverage for federal workers. Empire HealthChoice shows that the district court erred in allowing removal under § 1441 and dismissing the suit as completely preempted.
558 F.3d at 616 (some citations omitted).