Tuesday, October 11, 2005
As reported by Mark Stancil, whose highly entertaining and informative "SCt Today" newsletter is sent from his perch in Baker and Botts' D.C. office, the Supreme Court "CVSG'd" two FEHBA cases today. (For those of you who are addicted to plain English, the Court's order list included two cases that involve the Federal Employees Health Benefits Act, in which the Court Called for the Views of the Solicitor General.) The Court's order list is here (PDF). Here is Stancil's summary:
Cruz v. Blue Cross and Blue Shield of Illinois (04-1657) – The decision to call for the SG’s views in this case no doubt stemmed in part from a desire to see if the SG could possibly draft shorter questions presented. Petitioner’s verbose iteration follows: (1) Should the Federal Employees Health Benefits Act’s jurisdictional provision (5 U.S.C. § 8912), which expressly limits federal court jurisdiction to claims brought against the United States, be expanded by creating federal common law, as the Seventh Circuit did here, to include claims brought by a private carrier against its insureds, when doing so directly conflicts with four circuit court decisions and cannot be reconciled with this court’s precedent? (2) Does FEHBA’s preemption provision (5 U.S.C. §8902(m)(1)), which states, in relevant part, that contract terms relating to “coverage or benefits (including payments with respect to benefits) . . . preempt any State or local law . . . which relates to health insurance or plans,” apply here, as the Seventh Circuit held, to create federal question jurisdiction, when the plan contract terms relating to “coverage or benefits” were not at issue, no state or local laws relating to health insurance or plans were at issue, and the Seventh Circuit’s decision directly conflicts with a Second Circuit decision and this court’s preemption jurisprudence. (3) Should federal common law be created and applied pursuant to FEHBA to resolve a dispute between private parties involving an insurance carrier’s reimbursement claim against insured’s personal injury recovery, when a state court action was already proceeding on the issue, Congress omitted any such right of action in FEHBA, the document relied on was prepared and issued by private carrier, and the Seventh Circuit’s decision creating such law directly conflicts with a Second Circuit decision, which held that FEHBA-carrier’s reimbursement claim brought against insured’s third-party recovery did not warrant creating federal common law?
Empire Healthchoice Assurance v. McVeigh (05-200) seems to raise similar issues, albeit much more succinctly: Does federal question jurisdiction exist over a suit by a federal government contractor to enforce, on behalf of the United States, a provision in a health benefits plan for federal employees that is part of a government contract established pursuant to the Federal Employees Health Benefits Act?
I don't know in what percentage of CVSG cases the Court eventually grants cert., but it *has* to be higher than in the mine run of cases that don't elicit even this much attention from the Court. I guess these are two to watch if you're a FEHBA fan. [tm]