Raquel LÓPEZ-MUÑOZ and Orlando Ríos-Walker, Plaintiffs, Appellants, v. TRIPLE-S SALUD, INC., Defendant, Appellee.
No. 13-1417.
United States Court of Appeals, First Circuit.
May 9, 2014.
754 F.3d 1
Cesar T. Alcover, with whom Casellas Alcover & Burgos, P.S.C. was on brief, for appellee.
Before HOWARD, SELYA and LIPEZ, Circuit Judges.
SELYA, Circuit Judge.
In this matter of first impression within our circuit, we confront the question of whether the Federal Employees Health Benefits Act of 1959 (FEHBA),
I. BACKGROUND
In 2009, physicians diagnosed plaintiff-appellant Raquel López-Muñoz with morbid obesity and recommended that she undergo gastric lap band surgery. Defendant-appellee Triple-S Salud, Inc., a health-care insurer that covered the plaintiff by virtue of her husband‘s employment with the federal government, initially denied authorization for the surgery. The plaintiff eventually persuaded the defen-
Despite the plaintiff‘s confidence that her path had been cleared, obstacles loomed. The defendant voiced newfound objections to the cost of the lap band and the anesthesiologist‘s fees. During the next month, the plaintiff unsuccessfully attempted to quell these objections.
In due course, the plaintiff repaired to the Puerto Rico Court of First Instance and brought tort and breach of contract claims for damages against the defendant.1 The defendant removed the action to the federal district court.
The notice of removal recited two grounds. First, it asserted that the FEHBA completely preempted the plaintiff‘s local-law claims, transmogrifying them into federal questions and conferring original jurisdiction upon the federal court. See
The plaintiff balked. She challenged the propriety of the removal and entreated the district court to remand the case to the Court of First Instance. The defendant meantime moved to dismiss the case, arguing that the FEHBA demanded (and the plaintiff had not pursued) exhaustion of administrative remedies.
The district court denied the plaintiff‘s motion to remand. It held that the FEHBA completely preempted the plaintiff‘s claims and, thus, federal jurisdiction attached. See
II. ANALYSIS
We start with an overview of the pertinent provisions of the FEHBA and the implementing regulations. The FEHBA “establishes a comprehensive program of health insurance for federal employees” and family members covered under their plans. Empire HealthChoice Assur., Inc. v. McVeigh, 547 U.S. 677, 682, 126 S.Ct. 2121, 165 L.Ed.2d 131 (2006); see
The FEHBA itself does not delineate specific procedures for resolving denial-of-benefits disputes. Instead, it grants OPM authority to prescribe necessary regulations. See
In pursuance of this authority, OPM promulgated a regulation that dictated, among other things, that denial-of-benefits disputes under FEHBA plans must pass through an administrative review process prior to any resort to the courts. See
The FEHBA contains a preemption clause, which explicitly provides: “The terms of any contract [issued] under [the FEHBA] which relate to the nature, provision, or extent of coverage or benefits . . . shall supersede and preempt any State or local law . . . which relates to health insurance or plans.”
Against this backdrop, we turn to the plaintiff‘s claims. The parties agree that the defendant‘s policy was issued under, and is subject to, the terms of the FEHBA. Here, however, the plaintiff insists that her claims are local-law claims for damages, not claims that seek to reverse an insurer‘s refusal either to authorize or pay for certain medical procedures. In her appeal, she challenges both the district court‘s denial of her motion to remand and its subsequent dismissal of her suit.
At the heart of the plaintiff‘s asseverational array lies her contention that her case was not properly removable. Our appraisal of the denial of her motion to remand depends, of course, on whether federal jurisdiction exists. See BIW Deceived v. Local S6, Indus. Union of Marine & Shipbldg. Workers, 132 F.3d 824, 830 (1st Cir.1997). This inquiry is cabined by the notice of removal. See, e.g., Ervast v. Flexible Prods. Co., 346 F.3d 1007, 1012 n. 4 (11th Cir.2003). While the defendant cited the federal officer removal statute,
Eliminating the federal officer removal statute means that the propriety of removal in this case hinges on whether the district court had original jurisdiction over the matter. See
The “arising under” analysis is informed by the well-pleaded complaint rule, which “requires the federal question to be stated on the face of the plaintiff‘s well-pleaded complaint.” R.I. Fishermen‘s All., Inc. v. R.I. Dep‘t of Envtl. Mgmt., 585 F.3d 42, 48 (1st Cir.2009); accord Franchise Tax Bd., 463 U.S. at 9-10. As a general matter, this rule envisions “that the plaintiff is master of his complaint and that a case cannot be removed if the complaint‘s allegations are premised only on local law.” Negrón-Fuentes v. UPS Supply Chain Solutions, 532 F.3d 1, 6 (1st Cir.2008). These principles normally govern when the defendant asserts that the plaintiff‘s local-law claims
But the general rule that gives birth to these principles, like virtually every general rule, admits of exceptions. One such exception is embodied in the artful pleading doctrine, which is designed to prevent a plaintiff from unfairly placing a thumb on the jurisdictional scales. To this end, the artful pleading doctrine allows a federal court to peer beneath the local-law veneer of a plaintiff‘s complaint in order to glean the true nature of the claims presented. See Rivet v. Regions Bank, 522 U.S. 470, 475, 118 S.Ct. 921, 139 L.Ed.2d 912 (1998); BIW Deceived, 132 F.3d at 831. When such a glimpse reveals that a federal statute entirely displaces the local-law causes of action pleaded in the complaint, a hidden core of federal law sufficient to support federal jurisdiction emerges. See Beneficial Nat‘l Bank v. Anderson, 539 U.S. 1, 8, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003). In such a case, the plaintiff‘s claims are deemed “federal claims in state law clothing and, to defeat artful pleading, the district court can simply ‘recharacterize’ them to reveal their true basis.” Negrón-Fuentes, 532 F.3d at 6; see BIW Deceived, 132 F.3d at 831.
This jurisdiction-granting exception, known as complete preemption, comprises a narrow exception to the well-pleaded complaint rule. See Beneficial Nat‘l Bank, 539 U.S. at 5. Despite its name, complete preemption does not simply play übermensch to the more commonplace defense of federal preemption. The doctrine of complete preemption is conceptually distinct from the doctrine of ordinary (or defensive) preemption: the latter defends against a plaintiff‘s local-law claims without any jurisdictional ramifications, but the former clears a path—albeit one that is rarely traversed successfully—into federal court. See Fayard v. Ne. Vehicle Servs., LLC, 533 F.3d 42, 45, 48 (1st Cir.2008).
The linchpin of the complete preemption analysis is whether Congress intended that federal law provide the exclusive cause of action for the claims asserted by the plaintiff. See Beneficial Nat‘l Bank, 539 U.S. at 9. “The Supreme Court decisions finding complete preemption share a common denominator: exclusive federal regulation of the subject matter of the asserted state claim, coupled with a federal cause of action for wrongs of the same type.” Fayard, 533 F.3d at 46 (citations omitted).
With this short primer in place, we turn to the applicability of complete preemption here. This question engenders plenary review. See R.I. Fishermen‘s, 585 F.3d at 47. We hasten to add that we embark on this inquiry cognizant that federal courts are courts of limited jurisdiction and, thus, removal statutes are to be narrowly construed. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, 85 L.Ed. 1214 (1941).
In the case at hand, the district court found complete preemption and, as a consequence, denied the plaintiff‘s motion to remand. This finding rested on the FEHBA‘s preemption clause and OPM‘s regulations prescribing the administrative claims-review process. We do not think that these sources, either individually or collectively, can bear the weight of the district court‘s reasoning.
We need not linger long over the text of the preemption clause. In considering that very text, the Supreme Court explained that “[i]f Congress intends a preemption instruction completely to dis-
In an effort to dodge this bullet, the defendant labors to distinguish Empire. It notes that Empire involves the subrogation claim of an FEHBA insurer against its insured, whereas the plaintiff‘s claims in this case are rooted in a denial of benefits and, thus, are more in tune with the language of the FEHBA‘s preemption clause.
This is true as far as it goes—even though the plaintiff is not suing to overturn a denial of benefits per se, her damages claims arise out of a denial of benefits—but it does not take the defendant very far. After all, “the touchstone of the federal district court‘s removal jurisdiction is not the ‘obviousness’ of the preemption defense but the intent of Congress.” Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 66, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987). Seen in this light, a stronger factual case for a defense based on the FEHBA‘s preemption clause does little to blunt Empire‘s treatment of that clause, because “even an ‘obvious’ pre-emption defense does not, in most cases, create removal jurisdiction.” Id.
There is another reason why the defendant‘s counter-argument will not wash. In connection with its holding that the FEHBA‘s preemption clause is insufficiently broad to confer federal jurisdiction, the Empire Court assumed that the clause “reache[d]” the subrogation claim at issue. Empire, 547 U.S. at 698. This assumption makes it transparently clear that the Empire Court‘s characterization of the preemption clause did not hinge in the slightest degree on how squarely the clause applied to the claims at issue. This, in turn, trumps the defendant‘s assertion that its case should be treated differently because the FEHBA‘s preemption clause applies more squarely here than in Empire.
Empire also stands in the way of the defendant‘s argument that a 1998 amendment to the FEHBA‘s preemption clause works a change in the jurisdictional calculus. The clause originally read:
The provisions of any contract under this chapter which relate to the nature 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 to the extent that such law or regulation is inconsistent with such contractual provisions.
With respect to a jurisdictional inquiry (such as the one that this case demands), we cannot attach decretory significance to this amendment. The decision in Empire post-dated the amendment, and the Empire Court specifically discussed it. See 547 U.S. at 686. The Court nonetheless concluded that the FEHBA‘s preemption clause, as amended, is not “a jurisdiction-conferring provision.” Id. at 697. This conclusion is well-reasoned: although the amendment strengthened the preemption defense by
So, too, the defendant‘s attempt to draw an analogy between the FEHBA and the Employee Retirement Income Security Act (ERISA),
Although we have commented that the FEHBA‘s preemption clause “is nearly identical to ERISA‘s preemption provision,” Pharm. Care Mgmt. Ass‘n v. Rowe, 429 F.3d 294, 299 n. 2 (1st Cir.2005), “nearly identical” does not mean “identical.” The devil is in the detail and, once again, Empire is the beacon by which we must steer.
The Empire Court contrasted the FEHBA‘s preemption clause with ERISA‘s preemption provision and noted that the former, unlike the latter, “does not purport to render inoperative any and all state laws that in some way bear on federal employee-benefit plans.” 547 U.S. at 698 (citing
This leaves the defendant‘s contention that the administrative claims-review framework evidences Congress‘s intent to create an exclusive federal cause of action for the relief sought here. This contention places particular emphasis on the confluence of the regulatory requirement that a proceeding for judicial review be brought against OPM rather than against the insurance carrier, see
The administrative framework as it now stands is of relatively recent vintage, and has been forged by OPM without any congressional involvement. Prior to 1996, OPM regulations required “a claim for health benefits” to “be brought against the carrier of the health benefits plan . . . not against OPM.”
Perspectives change over time, and OPM‘s position evolved. In 1996, it shifted gears and promulgated a regulation that reflected the view that any challenge to a denial of benefits questioned OPM itself. OPM stated that because it “has the authority under the FEHB[A] to order the carrier to pay the claim, OPM has determined it is appropriate under current statute for the covered individual to bring suit against OPM if OPM declines to order the carrier to pay the claim.” Federal Employees Health Benefits Program: Filing Claims, 60 Fed.Reg. 16,037, 16,037 (Mar. 29, 1995) (interim regulations). This about-face transformed what had been civil actions between private parties into actions against a government agency, thus bringing judicial review of denial-of-benefits claims squarely into the orbit of the FEHBA‘s jurisdictional provision. See Federal Employees Health Benefits Program: Filing Claims, 61 Fed.Reg. at 15,179.
Given that the linchpin of an inquiry into the existence of complete preemption is Congress‘s intent about whether or not to create an exclusive federal cause of action, see Beneficial Nat‘l Bank, 539 U.S. at 9, it would seem surpassingly strange to find complete preemption based not on congressional intent but, rather, on an administrative agency‘s interpretive about-face. We are unwilling to go down so curious a path. OPM‘s 1996 regulation, in and of itself, neither constituted congressional action nor implemented some statutory change. Consequently, the regulation is incapable of papering over the absence of any congressional intent to make claims that in any way relate to benefit denials exclusively federal. It reads too much into the current version of the administrative claims-review framework to say that, by some mysterious alchemy, OPM managed to convert what historically had been less than complete preemption into complete preemption.
Our holding that the FEHBA does not completely preempt local law comports with the result in the only other post-Empire decision of a court of appeals. See Pollitt v. Health Care Serv. Corp., 558 F.3d 615, 616 (7th Cir.) (per curiam), cert. granted, 558 U.S. 945 (2009), and cert. dismissed, 559 U.S. 965 (2010). Although the defendant invites us to follow the contrary decision in Botsford v. Blue Cross & Blue Shield, 314 F.3d 390, 399 (9th Cir.), amended by 319 F.3d 1078 (9th Cir.2002), we are constrained to decline its invitation. The Ninth Circuit decided Botsford without the benefit of the Supreme Court‘s decision in Empire, and its holding is no longer good law.
That ends this aspect of the matter. In light of the Empire Court‘s teachings and our examination of both the FEHBA preemption clause and the OPM regulatory framework, we hold that the FEHBA does not completely preempt local-law claims relating to the denial of benefits. Thus, the removal of this case to federal court cannot be justified on the basis of complete preemption.
We add a coda. We have recognized (although the defendant has not argued)
Here, however, we need not probe this point. It is apodictic that “the removing party bears the burden of persuasion vis-à-vis the existence of federal jurisdiction,” BIW Deceived, 132 F.3d at 831, and neither the defendant‘s notice of removal nor its briefs (either in this court or in the court below) attempt to carry that burden by resort to the federal ingredient doctrine. Any claim of federal ingredient jurisdiction is, therefore, waived. See Viqueira, 140 F.3d at 16 n. 2; see also In re Blackwater Sec. Consulting, LLC, 460 F.3d 576, 590 n. 8 (4th Cir.2006).
III. CONCLUSION
We need go no further. For the reasons elucidated above, we conclude that the district court erred in holding that the FEHBA affords complete preemption. Therefore, the district court erred in denying the motion to remand and its subsequent actions are of no effect.5
We reverse both the district court‘s judgment of dismissal and its order denying remand, and we remand the matter to the district court with instructions to remand the case to the Puerto Rico Court of First Instance for further proceedings.
Reversed and remanded.