THE COUNTY BOARD OF ARLINGTON COUNTY, VIRGINIA, Plaintiff - Appellee, v. EXPRESS SCRIPTS PHARMACY, INC.; ESI MAIL PHARMACY SERVICE, INC., Defendants - Appellants, and MALLINCKRODT PLC; MALLINCKRODT LLC; SPECGX LLC; ENDO HEALTH SOLUTIONS INC.; ENDO PHARMACEUTICALS INC.; PAR PHARMACEUTICAL COMPANIES, INC.; PAR PHARMACEUTICAL, INC.; TEVA PHARMACEUTICALS USA, INC.; CEPHALON, INC.; BARR LABORATORIES, INC.; WATSON LABORATORIES, INC.; ACTAVIS PHARMA, INC.; ACTAVIS, LLC; ALLERGAN PLC; ALLERGAN FINANCE, LLC; MYLAN PHARMACEUTICALS, INC.; MYLAN INSTITUTIONAL INC.; INDIVIOR INC.; MCKESSON CORPORATION; MCKESSON MEDICAL-SURGICAL INC.; CARDINAL HEALTH, INC.; AMERISOURCEBERGEN DRUG CORPORATION; GENERAL INJECTABLES & VACCINES, INC.; INSOURCE, INC.; CVS HEALTH CORPORATION; CVS PHARMACY, INC.; CVS TN DISTRIBUTION, L.L.C.; WALGREENS BOOTS ALLIANCE, INC.; WALGREEN CO.; WALGREEN EASTERN CO., INC.; EXPRESS SCRIPTS HOLDING COMPANY; EXPRESS SCRIPTS, INC.; CAREMARK RX, L.L.C.; CAREMARKPCS HEALTH, L.L.C.; CAREMARK, L.L.C.; CAREMARKPCS, L.L.C.; UNITEDHEALTH GROUP INCORPORATED; OPTUM, INC.; OPTUMRX, INC.; WALMART, INC.; RITE AID CORP.; RITE AID OF VIRGINIA, INC.; RITE AID MID-ATLANTIC; RITE AID OF MARYLAND, INC.; ECKERD CORPORATION; DOES 1
No. 20-1031
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
May 3, 2021
PUBLISHED
Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Anthony J. Trenga, District Judge. (1:19-cv-01446-AJT-JFA)
Argued: March 9, 2021 Decided: May 3, 2021
Before WILKINSON, NIEMEYER, and QUATTLEBAUM, Circuit Judges.
Reversed and remanded by published opinion. Judge Quattlebaum wrote the opinion, in which Judge Wilkinson and Judge Niemeyer joined.
ARGUED: Adriana Riviere-Badell, KOBRE & KIM LLP, Miami, Florida, for Appellants. R. Johan Conrod, Jr., SANFORD HEISLER SHARP, LLP, Nashville, Tennessee, for Appellee. ON BRIEF: Matthew I. Menchel, Miami, Florida, Julian W. Park, KOBRE & KIM LLP, San Francisco, California, for Appellants. Grant Morris, Kevin Sharp, Andrew Miller,
QUATTLEBAUM, Circuit Judge:
This appeal involves the application of
Here, the County Board of Arlington County, Virginia (“Arlington“) sued a host of opioid manufacturers, distributers and pharmacies, including Express Scripts Pharmacy, Inc. and ESI Mail Pharmacy Service, Inc. (collectively the “ESI Defendants“), in state court for causing, or contributing to, the opioid epidemic in Arlington County, Virginia. The ESI Defendants removed the case to federal court pursuant to the federal officer removal statute. They claimed their operation of the TRICARE Mail Order Pharmacy (“TMOP“) as a subcontractor to a contract between their corporate affiliate, Express Scripts, Inc.,2 and the Department of Defense (“DOD“) satisfied each of the statute‘s requirements. Arlington moved to remand the case to state court, contending that the ESI Defendants cannot satisfy the requirements of the federal officer removal statute. The district court granted the motion, emphasizing that the ESI Defendants operated the TMOP as subcontractors of Express Scripts, Inc. and that their interactions with DOD were “too attenuated, infrequent, and peripheral to satisfy the ‘acting under’ requirement.” J.A. 823.
I.
Arlington sued a large number of manufacturers, distributors and pharmacies that dispense opioid medications in state court seeking to recover financial costs incurred as a result of widespread opioid use. This case is not unusual, as over 2,000 cases filed by governmental entities have been consolidated into a federal multidistrict litigation case in the Northern District of Ohio (the “Opiate MDL“). See In re Nat‘l Prescription Opiate Litig., 290 F. Supp. 3d 1375, 1378 (J.P.M.L. 2017).
Later, Arlington amended its Complaint, adding the ESI Defendants. Arlington alleges that the defendants, including the ESI Defendants, “have caused an opioid epidemic that has resulted in economic, social and emotional damage to virtually every community in the United States and tens of thousands of Americans.” J.A. 53. According to Arlington, “Arlington County has been hit hard by the opioid epidemic,” with increasing rates of neonatal abstinence syndrome and Hepatitis C since 2011. J.A. 55. Moreover, the rate of overdose deaths in Arlington County has approximately tripled during the period of 1999 to 2016.
Arlington has asserted claims against three groups of defendants: (1) opioid manufacturers; (2) opioid distributors; and (3) pharmacies that fill opioid prescriptions. The ESI Defendants fall into the third category, as they operate mail order pharmacies that distribute opioid medications to patients both nationally and in Arlington County. To that end, Arlington seeks to impose liability on the ESI Defendants because they were “keenly aware of the oversupply of prescription opioids through the extensive data and information they developed and maintained” but failed to “tak[e] any meaningful action to stem the flow of opioids into the communities . . . .”3 J.A. 152.
The ESI Defendants removed the case under the federal officer removal statute.4 In support of removal, the ESI Defendants claimed that “Express Scripts holds a contract with [DOD] to provide services to members of the DOD health care program, TRICARE, across the country, including in Arlington County, Virginia.” J.A. 22. TRICARE is a federal health insurance
Arlington promptly moved to remand the case to state court, claiming that the ESI Defendants’ reliance on the federal officer removal statute was improper because they were not parties to the DOD contract and were not registered to contract with the federal government. Therefore, according to Arlington, the ESI Defendants were not “acting under” the direction of a federal officer—i.e., DOD. Furthermore, Arlington argued that there was no causal nexus between its claims against the ESI Defendants and their administration of the TMOP. Emphasizing that point, Arlington claimed that it “has not made any allegations about injuries to veterans.” J.A. 250. Finally, Arlington argued that, because “there is no direct contractual relationship or detailed control by a federal officer, the government contractor defense is unavailable” and federal preemption does not apply. J.A. 251–52.5
II.
We begin with the standards by which we review the district court‘s order. Generally, an order remanding a case to state court is not appealable. See
III.
With those standards in mind, we turn to the ESI Defendants’ two arguments raised on appeal. First, they argue that the district court erred in finding that they were not “acting under” DOD‘s direction in administering and operating the TMOP. Second, the ESI Defendants contend that we should address the remaining two requirements for federal officer removal and conclude that they have met their burden of establishing subject-matter jurisdiction.
A.
As noted above, the district court concluded that the ESI Defendants’ interaction with DOD “is too attenuated, infrequent, and peripheral to satisfy the ‘acting under’ requirement” and did not address the remaining two requirements for federal officer removal jurisdiction. J.A. 823–24. Accordingly, we must first determine whether the district court erred in finding the ESI Defendants were not “acting under” a federal officer.
“The statutory phrase ‘acting under’ describes ‘the triggering relationship between a private entity and a federal officer.‘” Baltimore, 952 F.3d at 462 (quoting Watson, 551 U.S. at 149). Although that phrase is broad, “the Supreme Court has emphasized that [it is] not ‘limitless.‘” Id. (quoting Watson, 551 U.S. at 147). “In cases involving a private entity, the ‘acting under’ relationship requires that there at least be some exertion of ‘subjection, guidance, or control’ on the part of the federal government.” Id. (quoting Watson, 551 U.S. at 151). Moreover, the private entity must be engaging in “an effort to assist, or to help carry out, the duties or tasks of the federal superior.” Watson, 551 U.S. at 152. Indeed, a private contractor may “act under” a federal officer when the relationship “is an unusually close one involving detailed regulation, monitoring, or supervision.” Id. at 153.
In interpreting that general guidance, we have some guideposts. The Supreme Court has emphasized that “simply complying with the law” is not sufficient. Id. at 152. Thus, businesses that operate in fields subject to stringent federal regulations cannot use their compliance with federal law—without more—to invoke the federal officer removal statute. See id. at 153 (“A private firm‘s compliance (or noncompliance) with federal laws, rules, and regulations does not by itself fall within the scope of the statutory phrase ‘acting under’ a federal ‘official.‘“). Likewise, a private company selling “standardized consumer product[s]” to the federal government does not implicate the federal officer removal statute. See Baltimore, 952 F.3d at 464. Even when a contract specifies the details of the sales and authorizes the government to supervise the sale and delivery, the simple sale of contracted goods and services is insufficient to satisfy the federal officer removal statute. See id. On the other hand, courts, like this one, “have unhesitatingly treated the ‘acting under’ requirement as satisfied where a contractor seeks to remove a case involving injuries arising from equipment that it
With those guideposts in mind, we turn to the relationship of the ESI Defendants to the federal government. The ESI Defendants offered a Declaration from William T. Cahill, Express Scripts, Inc.‘s Vice President of Government Markets – Federal and DOD, in support of removal. Cahill explained that “Express Scripts, Inc. contracts with [DOD] through the Express Scripts Military Health Statement of Work (‘SOW‘)” and that “DOD is currently Express Scripts’ second-largest client.” J.A. 552.8
Cahill further explained that, “Express Scripts, Inc. provides pharmacy benefit management services, and [the ESI Defendants] administer[] the [TMOP] under the detailed requirements of the [DOD] contract.” J.A. 553–54. In order to satisfy the contractual requirements, the ESI Defendants “operate the TMOP under a shared service agreement” and process and dispense prescriptions to TRICARE members. J.A. 554. In doing so, the DOD contract “requires the exclusive use of the DOD formulary created by the DOD‘s own Pharmacy & Therapeutics [] Committee.” J.A. 554. Thus, prescriptions are dispensed in accordance with the guidelines promulgated by DOD. Moreover, the SOW dictates how the ESI Defendants must operate the TMOP. Pricing, eligibility verification, shipping, payment and many other specifications are detailed in the SOW. Importantly, the ESI Defendants are required to comply with all of these contractual requirements along with the statutes, regulations and policy manuals governing the TRICARE program.
To ensure that Express Scripts, Inc. is complying with the terms of the contract, DOD has designated a contracting officer who is charged with managing the SOW. Representatives of Express Scripts, Inc. are in regular contact with the contracting officer, including weekly briefings and formal program reviews three times per year. Express Scripts, Inc., in turn, regularly interacts with the ESI Defendants. Express Scripts, Inc. “communicates guidance and instruction from the [contracting officer] or other Government representatives” to the ESI Defendants in order to “execute the SOW.” J.A. 556. Although the ESI Defendants do not regularly coordinate with the contracting officer or DOD, there is some direct interaction. “For example, DOD representatives interact directly with ESI Mail Pharmacy employees during some audits that are performed under the contract.” J.A. 557. Thus, while the ESI Defendants were not signatories to the DOD contract, they performed the day-to-day management of the TMOP under the terms of the contract and were subject to extensive oversight by the federal government.
The district court, while acknowledging the ESI Defendants’ role in administering the TMOP, seemingly misunderstood this relationship and further misapprehended the language and meaning of the DOD contract. Illustrating this, the district court stated: “[The DOD] contract and Statement of Work [] make no mention of, and impose no obligations on, anyone other than prime contractor, Express Scripts, Inc. And from the face of the contract and SOW, [the ESI Defendants‘] involvement was not required, suggested, or anticipated.” J.A. 822 (footnote omitted). Furthermore, the district court stated, in a footnote,
The DOD contract provides otherwise. The SOW expressly contemplates the involvement of subcontractors. See J.A. 675 (“The Contractor shall ensure that its staff and subcontractors (if any) are thoroughly trained and knowledgeable regarding the requirements of this contract.“); 676 (“The Contractor shall report all Contractor labor hours (including subcontractor labor hours) required for performance of services provided under this contract via a secure data collection site.“). Not only does the SOW contemplate the use of subcontractors, it requires that they be “thoroughly trained and knowledgeable regarding the requirements of this contract.” J.A. 675. And, of course, the DOD contract specifies, in detail, the requirements and oversight of the federal government.
Beyond these contractual provisions, Express Scripts, Inc. “is not itself a mail order pharmacy, but instead, is a pharmacy benefits manager [] that administers prescription drug benefits for health plan sponsors.” Appellants’ Br. at 25. Therefore, the government had to anticipate that Express Scripts, Inc. would use subcontractors to operate and administer the TMOP.
The DOD contract not only contemplated the use of subcontractors; it also made them directly accountable to the federal government. The contract specifies that “[a]ny discrepancies identified by the Government . . . shall be subject to Contractor desktop audits and, if necessary, on-site audits at the direction of the Government.” J.A. 664. It also states that “[i]nspections will be performed at the TRICARE Management Activity (TMA), the Contractor‘s and/or subcontractor‘s facilities, or any other locations at which work is performed.” J.A. 680.
What‘s more, Cahill‘s affidavit indicates the government actually exercised its audit and inspection rights with respect to the ESI Defendants. The affidavit states that the government performed some audits and had direct contact with the ESI Defendants’ employees.
Last, as referenced above, DOD is required by law to enter into contracts for the provision of healthcare services to TRICARE members. See
Taken as a whole, the ESI Defendants, by operating the TMOP, were carrying out the duties of DOD by operating the TMOP and were, at all times, subject to the federal government‘s guidance and control. This is the type of “unusually close [relationship] involving detailed regulation, monitoring, or supervision” sufficient to satisfy the “acting under” requirement. See Watson, 551 U.S. at 153. Further, the ESI Defendants’ performance of the requirements outlined in the DOD contract is substantially different than the simple sale of commercial goods to the government. Nothing about the ESI Defendants’ obligations could fairly be characterized as “standardized consumer product[s].” Baltimore, 952 F.3d at 464. In fact, the ESI Defendants were essentially acting as the statutorily authorized alter ego of the federal government, as the TRICARE statute requires the Secretary of
Consistent with that, the absence of privity of contract between the ESI Defendants and the government does not lead to a different result. As the district court properly concluded, “the absence of a direct contractual relationship with the federal government is not a bar to removing an action under
B.
Having determined that the ESI Defendants meet the first requirement of the federal officer removal statute, we turn to whether the case should be remanded to the district court for a ruling on the remaining two requirements for federal officer removal. Generally, federal appellate courts should not consider issues that were not first addressed by the district court. Bakker v. Grutman, 942 F.2d 236, 242 (4th Cir. 1991) (citing Singleton v. Wulff, 428 U.S. 106, 120 (1976)). However, “[t]he matter of what questions may be taken up and resolved for the first time on appeal is one left primarily to the discretion of the courts of appeals, to be exercised on the facts of individual cases.” Id. (quoting Singleton, 428 U.S. at 121). Under the unique circumstances of this case, we find that judicial economy favors our resolution of the remaining issues. The issues have been fully briefed and resolving them without a remand will allow Arlington to litigate the merits of its case as swiftly as possible without the possibility of another appeal based solely on jurisdictional grounds. Therefore, we will consider the second requirement of the federal officer removal statute—whether the ESI Defendants have a colorable federal defense—before evaluating the third requirement—whether the conduct about which the plaintiffs complain is sufficiently connected with the government-directed conduct.
1.
“Courts have imposed few limitations on what qualifies as a colorable federal defense. At its core, the defense prong requires that the defendant raise a claim that is ‘defensive’ and ‘based in federal law.‘” Isaacson v. Dow Chem. Co., 517 F.3d 129, 138 (2d Cir. 2008) (quoting Mesa v. California, 489 U.S. 121, 132–34 (1989)). The Supreme Court has emphasized that such a defense must “aris[e] out of [a defendant‘s] official duties.” Arizona v. Manypenny, 451 U.S. 232, 241 (1981). “To be ‘colorable,’ the defense need not be ‘clearly sustainable,’ as the purpose of the statute is to secure that the validity of the defense will be tried in federal court.” Isaacson, 517 F.3d at 139 (quoting Willingham, 395 U.S. at 407). Instead, the defense must only be plausible. See City of Cookeville, Tenn. v. Upper Cumberland Elec. Membership Corp., 484 F.3d 380, 391 (6th Cir. 2007). Here, the ESI Defendants have invoked two federal defenses—government contractor immunity and preemption. We address these in turn.
First, the ESI Defendants claim they are entitled to assert government contractor immunity “for services provided to the DOD regardless of whether they are deemed corporate affiliates or subcontractors.” Appellants’ Br. at 41. This defense applies when: (1) the government “approved reasonably precise specifications“; (2) the contractor‘s performance “conformed to those specifications“; and (3) the contractor alerted the government to dangers “known to [the contractor] but not to the United States.” Ripley, 841 F.3d at 210 (internal quotation marks omitted).9 “The defense only applies if a contractor‘s obligations to the government conflict with state law such that the contractor may not comply with both.” Id.
Instructively, the government contractor immunity defense has already been raised in a pair of cases filed by two Native American tribes against opioid manufacturers, distributors and pharmacies. See In re Nat‘l Prescription Opiate Litig., 327 F. Supp. 3d 1064, 1078 (N.D. Ohio 2018). McKesson Corporation removed both cases to federal court and invoked the federal officer removal statute because it distributed drugs on behalf of the government to the Native American tribes.10 Id. at 1070–71. The Opiate MDL court held that it was plausible that McKesson‘s contract with the government to provide opioid medications contained “reasonably precise specifications and that McKesson‘s deliveries conformed to those specifications.” Id. at 1078. Furthermore, the Opiate MDL court held, regarding the third prong of the above test, that “McKesson can plausibly argue that it was aware of no greater danger than the government was already aware of.” Id. Therefore, the Opiate MDL court concluded that McKesson‘s invocation of the government contractor
immunity defense was plausible. Id. In reaching this conclusion, the court emphasized that “the ‘colorable federal defenses’ prong is a low bar.” Id.
We find the Opiate MDL court‘s analysis persuasive. Similar to McKesson, the ESI Defendants have plausibly alleged that they distributed opioid medications pursuant to reasonably precise specifications found in the DOD contract and, more specifically, the SOW. Furthermore, the ESI Defendants’ allegation that they were not aware of any greater dangers than DOD or the federal government more generally is plausible. That does not mean the ESI Defendants will prevail on this theory. We offer no opinion on that question. But it does mean that they have met the jurisdictional requirement of possessing a “colorable federal defense.”
A law or regulation of a State or local government relating to health insurance, prepaid health plans, or other health care delivery or financing methods shall not apply to any contract entered into pursuant to this chapter by the Secretary of Defense or the administering Secretaries to the extent that [they] determine that –
(1) the State or local law or regulation is inconsistent with a specific provision of the contract or a regulation promulgated by the Secretary of Defense or the administering Secretaries pursuant to this chapter; or
(2) the preemption of the State or local law or regulation is necessary to implement or administer the provisions of the contract or to achieve any other important Federal interest.
The ESI Defendants argue that Arlington‘s theory of “liability is predicated on [their] alleged failure to implement a specific formulary, specific opioid utilization limits, or restrictions different from those the DOD mandated for the TRICARE program.” Reply Br. at 6. In other words, they insist that the conduct about which Arlington complains is conduct that they were required to carry out to comply with the language of the DOD contract as well as the TRICARE statute, regulations and policies. For that reason, the ESI Defendants argue Arlington‘s state law claims are inconsistent with that contract, statute and regulatory scheme. Again, we express no view as to whether the ESI Defendants will ultimately prevail on this defense. But under the well-established preemption doctrines applicable to such claims, it is plausible that the ESI Defendants have a valid preemption defense.
Accordingly, we conclude that the ESI Defendants have raised colorable federal defenses.
2.
Finally, we are left with the question of whether the ESI Defendants’ government-directed conduct is related to Arlington‘s claims. “To satisfy the third prong [of the federal official removal statute], the conduct charged in the Complaint need only ‘relate to’ the asserted official authority.” Baltimore, 952 F.3d at 466. “That is, there must be ‘a connection or association between the act in question and the federal office.‘” Id. (quoting Sawyer, 860 F.3d at 258). Generally, “[w]e credit Defendants’ theory of the case when determining whether” there is such a connection or association. Isaacson, 517 F.3d at 137 (citing Jefferson Cnty. v. Acker, 527 U.S. 423, 432 (1999)). As we explained in Sawyer,
this “connection or association” standard is broader than the old “causal nexus” test that we abandoned after the Removal Clarification Act of 2011, Pub. L. No. 112-51, 125 Stat. 545, expanded
Arlington insists this requirement is not met. It argues that its Amended Complaint did not even mention the distribution of opioids to veterans, the DOD contract or the operation of the TPOM. Its allegations, according to Arlington, have nothing to do with DOD or its program.
But Arlington‘s position would elevate form over substance. Arlington‘s claims
IV.
For the reasons stated above, we conclude that removal under the federal officer removal statute was appropriate. Accordingly, the district court‘s order is
REVERSED AND REMANDED.