Stokes v. Bortolini et al, No. 1:2011cv02339 - Document 13 (D. Md. 2011)
Court Description: MEMORANDUM OPINION. Signed by Judge Ellen L. Hollander on 10/5/11. (apl, Deputy Clerk)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND JOHN E. STOKES, IV, M.D., Plaintiff, Civil Action No. ELH-I 1-2339 v. MARK T. BERTOLINI, et al., Defendants. MEMORANDUM OPINION On July 13,2011, Dr. John E. Stokes, IV, plaintiff, who is a medical doctor, filed a pro se complaint (ECF 2) in Maryland state court against Aetna Health, Inc. ("Aetna") and its president, Mark T. Bertolini, that defendants I defendants, "[f]ailed seeking approximately to pay legitimate claim[s] $700.00 in damages. for diagnostic performed upon a patient who was insured by Aetna2 the case to this Court. under 28 U .S.c. under" federal law. See also 28 U.S.C. complaint, that plaintiff had On August 22, 201 I, defendants removed See Notice of Removal (ECF I). They asserted that the Court possesses subject matter jurisdiction court when jurisdiction testing" Plaintiff alleged S S 1331, which grants jurisdiction 1441(a)-(b) (authorizing over claims "arising removal of cases from state is founded on a claim "arising under" federal law). Although plaintiff's on its face, asserted only a state contract law claim, defendants contended that I Defendants point out that Bertolini's last name is misspelled as "Bortolini" in the caption of the case. It is not clear whether plaintiff actually misspelled Bertolini's last name, or whether plaintiff's handwriting, in filling out the form complaint, simply failed to differentiate clearly between an "e" and an "0." In any event, the Clerk will be directed to correct the spelling of Bertolini's name on the docket. 2 Dr. Stokes's patient is not a party to this case. Although the patient is identified in the parties' pleadings, I have omitted his name for privacy reasons and because his identity is not relevant to the issues before the Court. plaintiffs state law claim was completely preempted Act ("FEHBA"), 5 U.S.C. gg by the Federal Employees 8901 et seq., thus conferring Health Benefits federal jurisdiction. Subsequently, each defendant filed a motion to dismiss (ECF 8 & 10), to which plaintiff failed to respond. For the reasons that follow, I conclude that the Court lacks subject matter jurisdiction over this case. Accordingly, the Court has no authority to resolve defendants' motions to dismiss, and the case will be remanded to state court. Factual & Procedural Background Plaintiff filed his suit in the District Court of Maryland, limited jurisdiction. See Md. Code (2006 Repl. Vol., 2011 Supp.), gg 1-601 et seq. & gg 4-101 et seq. of the Courts & Judicial Proceedings Article CC,J.,,).J court are generally 701(b); see also C,J. g 6-403(a). See Md. Rules 3-303(a) & 3- In his form complaint, plaintiff checked a box asking the clerk Complaint of this case," plaintiff stated that defendants diagnostic testing." Civil actions in the state district initiated by the filing of a form complaint. to docket the case as an "action of contract." "particulars which is a state trial court of at I. In the area of the form labeled "[flailed to pay legitimate claim[sJ for ld. Dr. Stokes sought $684.24 in damages, plus interest of $41.00. ld. 4 As exhibits to the complaint, plaintiff submitted two documents on Aetna letterhead. first (which appears to be the second page of a larger, three-page response to several "cla'ims" related to treatment of plaintiffs J Specifically, 1-602(1). document) lists Aetna's patient on August 26,2010. plaintiff initiated the case in District I, serving Baltimore The ld. at City. See C,J. g In Maryland, the district court has original jurisdiction over civil actions in contract or tort where the damages claimed do not exceed $30,000. C,J. g 4-401(1). Because plaintiffs claim was for less than $5,000, the claim also fell within the district court's exclusive jurisdiction over "small claims" actions. C,J. g 4-405. Pretrial discovery is not permitted in small claims actions, see Md. Rule 3-701(e), and trials of small claims cases are conducted in an "informal manner," whereby the formal rules of evidence do not apply. Md. Rule 3-70 I(t). 4 -2- 2. For two procedures, which were each "Billed" at $342.12, the amount of "$0.00" is listed as Id. The second document is a letter, addressed to the patient, which refers to a "[b]illed "Paid." [a]mount" of $684.24 for services provided by Dr. Stokes on August 26, 20 I 0, and states: "You are not responsible for this charges [sic] unless you accepted responsibility service was, performed. determined Charges for, or in connection by Aetna, considered to be experimental with, services or supplies or investigational your plan." Id. at 3. The letter also identifies the federal government As noted, defendants federal question jurisdiction. in writing before the that are, as are not covered under as the "Plan Sponsor." Id. removed the case to this Court on August 22, 2011,5 based on See 28 U.S.C. completely preempts plaintiffs 99 1331 & 1441 (a)-(b). state law contract claim. They claimed that FEHBA Subsequently, both defendants moved to dismiss the suit. Aetna's motion to dismiss preempts plaintiffs (ECF 8) is also premised government Management ("OPM") employees. 9 The and supervision of health care benefit plans for many statute authorizes to enter into contracts with "qualified plans" to eligible federal employees also id. that FEHBA claim. In his motion to dismiss (ECF 10), Bertolini adopts that position. FEHBA governs the administration federal on the assertion 890 I (1) (defining the federal 9 of Personnel carriers" to offer "health benefit and their covered dependents. eligible "employees"); Office 9 8902(a); see "carrier"). A "health See 5 U.S.C. 890 I(7) (defining 5 Defendants' Notice of Removal was timely. See 28 U.S.C. 9 1446(b) (defendant must rcmove within 30 days after service); Barbour v. Int'l Union, United Automobile, Aerospace & Agric. Implement Workers of Am., 640 F.3d 599, 605-13 (4th Cir. 2011) (holding that the 30-day period undcr 28 U.S.c. 9 1446(b) begins to run when the first defendant is served). Defendants averred that Aetna was served on July 21, 2011, and that Bertolini was served on July 22, 2011. See Notice of Removal ~~ 2-3; see also ECF 3 & 4 (summons documents). The thirtieth day after July 21, 2011 was Saturday, August 20, 2011, and Fed. R. Civ. P. 6(a)(l)(C) extends through the next'day the court is open any period that expires on a weekend or legal holiday. -3- benefits plan" is a "group insurance policy or contract ... provided by a carrier for the purpose of providing, paying for, or reimbursing expenses for health services." Id. 9 8901(6). FEHBA establishes certain standards that contracts must meet, see 5 U.S.C. 99 8902(c)-(d), (f)-(k), and authorizes aPM to contract for a variety of health benefit plans, containing authorizes aPM plans. See id. 99 to establish for health benefits plans offered under the statute various benefits. by regulation See id. additional 99 minimum 8903-8904. The statute also standards for health benefit 8902( e), 8913. In a FEHBA contract, the carrier must agree to "pay for or provide a health service or supply in an individual case," if aPM determines that the covered employee entitled to receive the service or supply under the contract. established, through regulations codified Id. 9 8902U). or dependent is To that end, aPM has in 5 C.F.R. part 890, subpart A, an administrative review process by which a "covered individual" may obtain aPM review of a carrier's denial of a claim for benefits. family member" a "covered 5 C.F.R. 9 890.1 05(a). Id. in a health benefit plan." individual must exhaust A "covered individual" 9 890.101 is an "enrollee or covered (a). The regulations expressly state that both the carrier and aPM review.processes ... before seeking judicial review of the denied claim." Id. Further, the regulations provide: A covered individual may seek judicial review of aPM's final action on the denial of a health benefits claim. A legal action to review final action by aPM involving such denial of health benefits must be brought against aPM and not against the carrier or carrier's subcontractors. The recovery in such a suit shall be limited to a court order directing aPM to require the carrier to pay the amount of benefits in dispute. 5 C.F .R. 9 890.1 07( c); original jurisdiction, see also 5 U .s.c. 9 8912 ("The district courts of the United States have concurrent with the United States Court of Federal Claims, of a civil action or claim against the United States founded on this chapter.") (Emphasis added). -4- Defendants determination argue that FEHBA regarding According to defendants, suit against OPM. requires any challenge to a covered coverage to be brought in an administrative proceeding if a party contests OPM's decision, the party's Thus, defendants benefit before OPM. sole remedy is to file maintain that plaintiff s claim is subject to dismissal failure to state a claim, under Rule 12(b)(6) of the Federal Rules of Civil Procedure, reasons. plan's for for three First, it is preempted by FEHBA; second, even if the complaint is considered as a claim under FEHBA, OPM is the only proper defendant in any claim brought under FEHBA; finally, plaintiff did not allege that he exhausted the administrative remedy provided by OPM. As noted, Bertolini filed a separate motion to dismiss (ECF 10), adopting Aetna's arguments for dismissal. and by reference Bertolini also asserts two additional arguments specific to him. First, Bertolini contends that the complaint does not allege facts to establish his personal liability. Therefore, he insists that, as an officer and employee of Aetna, he is shielded from liability by Aetna's "corporate veil." Second, he argues that the complaint fails to allege facts showing that the Court has personal jurisdiction over him6 As indicated, plaintiff failed to respond to either motion. expired. The time for him to do so has See Local Rule 105.2(a); Fed. R. Civ. P. 6(d). Discussion Federal courts are courts of limited jurisdiction a statutory basis." import absent Exxon Mobil Corp. v. Allapa/lah Servs., Inc., 545 U.S. 546, 552 (2005). hcre, courts jurisdiction and "may not exercise jurisdiction have "an independent obligation exists, even when no party challcngcs to determine whether it." Hertz Corp. v. Friend, _ Of subject-matter U.S. _, 130 6 In light of my conclusion that this case must be remanded on other grounds, I need not further discuss the additional grounds set forth in Bertolini's motion. -5- -----------------~ S. Ct. 1181, 1193 (20 I 0); see also Sucampo Pharmaceuticals, Inc. v. Astellas Pharma, Inc., 471 F.3d 544, 548 (4th Cir. 2006). at any time before jurisdiction, 9 With regard to removed cases, 28 U.S.C. final judgment it appears that the district court 1447(c) requires: "If lacks subject matter the case shall be remanded." As noted, defendants federal question jurisdiction, & 1441 (a)-(b). Section assert that the Court possesses subject matter jurisdiction actions arising under the Constitution, 99 See 28 U.S.C. also known as "arising under" jurisdiction. 1331 grants federal district courts "original based on jurisdiction laws, or treaties of the United States." 1331 of all civil In turn, 9 1441, the general removal statute, permits "any civi I action brought in a State court of which the district courts of the United States have original jurisdiction" defendants, to be "removed by the defendant or the to the district court of the United States for the district and division embracing place where such action is pending." claim "arising 9 28 V.S.c. under the Constitution, treaties 1441(a). When jurisdiction or laws of the United "removable without regard to the citizenship or residence of the parties." The "'presence pleaded complaint or absence of federal-question rule," which provides jurisdiction that federal jurisdiction question is presented on the face of the plaintiffs Id. by the "well- exists only when a federal The "existence normally does not create statutory 'arising under' jurisdiction, the case is 1441(b)? is governed properly pleaded complaint.'" Bank of La., 522 U.S. 470, 475 (1998) (citation omitted). is based on a States," 9 the Rivet v. Regions of a federal defense and 'a defendant [generally] may not remove a case to federal court unless the plainl!!ts complaint establishes that the case "arises 7 Defendants do not assert that the Court possesses subject matter jurisdiction on the basis of diversity of citizenship. Regardless of the citizenship of the parties, the amount in controversy falls far below the $75,000 threshold applicable to diversity cases. See 28 U.S.C. 9 I 332(a). -6- j Aetna Health, Inc. v. Davila, 542 U.S. 200, 207 (2004) (internal citations under" federal law.''' omitted) (emphasis allegations in original). in a plaintiffs "Ordinarily complaint." federal pre-emption is raised as a defense to the Caterpillar Inc. v. Williams, 482 U.S. 386,392 (1987). Thus, it is "settled law that a case may not be removed to federal court on the basis of a federal defense, including the defense of pre-emption, even if the defense is anticipated complaint, in the plaintiff s and even if both parties concede that the federal defense is the only question truly at issue." Id. at 393 (emphasis added). As a narrow exception to the foregoing principles,. however, the Supreme Court has held that federal question jurisdiction is satisfied "when a federal statute wholly displaces the state- law cause of action through complete pre-emption." 1, 8 (2003) (emphasis Beneficial Nat 'I Bank v. Anderson, 539 U.S. added); see also Vaden v. Discover Bank, 556 U.S. 49, _' 1262, 1273 (2009); Davila, 542 U.S. at 207-08. statute completely pre-empts The Court has explained: 129 S. Ct. "When [aJ federal [aJ state-law cause of action, a claim which comes within the scope of that cause of action, even if pleaded in terms of state law, is in reality based on federal law." Beneficial, 539 U.S. at 8.8 Defendants claim that FEHBA provision, codified at 5 U.S.C. is such a statute. S 8902(m)(1), Notably, FEHBA's preemption states: 8 The Supreme Court has found complete preemption in the context of S 301 of the Labor Management Relations Act ("LMRA"), see, e.g., Caterpillar, supra, 482 U.S. 386 (1987); Avco Corp. v. Aero Lodge No. 735, Int'l Ass 'n of Machinists & Aerospace Workers, 390 U.S. 557 (1968); certain claims covered by the Employee Retirement Income Security Act ("ERISA"), see, e.g., Davila, supra, 542 U.S. 200; Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58 (1987); the National Bank Act, see Beneficial, supra,.539 U.S. 1; and certain claims involving Native American tribal rights, see Oneida Indian Nation ofN.Y. State v. Oneida County, 414 U.S. 661 (1974). "The courts of appeals and the district courts have extended the complete-preemption doctrine to a number of other substantive law contexts." WRIGHT, MILLER, COOPER & STEINMAN,14B FEDERALPRACTICE& PROCEDURES 3722.2, at 507 (4th ed. 2009, 2011 Supp.). -7- The terms of any contract under this chapter which relate to the nature, provision, 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. Claiming that FEHBA completely preempts otherwise applicable provides a basis for subject matter jurisdiction, state law, and thereby defendants rely on several cases: Botsford v. Blue Cross & Blue Shield of Montana, Inc., 314 F.3d 390 (9th Cir. 2002) (reversing district court's dismissal, for lack of subject matter jurisdiction, for reimbursement of medical expenses); of FEHBA plan enrollee's St. Mary's Hosp. v. Careftrst of Maryland, 192 F. Supp. 2d 384 (D. Md. 2002) (denying health care provider's subject matter jurisdiction, suit against carrie, motion to remand, its suit against carrier for reimbursement for lack of for services provided FEHBA enrollees, which carrier had removed on the basis of federal question jurisdiction); to and several other pre-2006 district court decisions9 The cases on which defendants rely are no longer good law for the proposition by defendants. advanced Although defendants cite Empire HealthChoice Assurance, Inc. v. McVeigh, 547 U.S. 677 (2006), in their general discussion of FEHBA,they Court held unequivocally in that case that FEHBA omit to mention that the Supreme does not completely preempt otherwise applicable state law, and therefore does not confer federal question jurisdiction. Empire arose from litigation over the proceeds of a settlement of a tort claim. An enrollee in a FEHBA health benefits plan, Joseph McVeigh, was injured in an accident in 1997 9 In addition to Bot,jord and St. Mary's Hospital, defendants cite McCoy v. Unicore Life & Health Ins. Co., No. 04-C-1126, 2004 U.S. Dist. LEXIS 20798 (N.D. III. Oct. 18, 2004) (denying plaintiff FEHBA plan enrollee's motion to remand suit for reimbursement against carrier); Rievely v. Blue Cross Blue Shield of Tenn., 69 F. Supp. 2d 1028 (E.D. Tenn. 1999) (same); and Kight v. Kaiser Found. Health Plan of the Mid At!. States, Inc., 34 F. Supp. 2d 334 (E.D. Va. 1999) (same). -8- and died in 2001. Jd. at 687. Between McVeigh's health plan, paid approximately $160,000 injury and his death, Empire, the carrier of the for McVeigh's medical care. Jd. Subsequently, his survivors and the estate brought suit in state court against the parties allegedly responsible for the accident, and obtained over $3 million in settlement. Jd. Empire then sued McVeigh's care. Jd. at 688. Empire federal court, seeking to recover the amount it had paid for McVeigh's asserted that the federal court had subject matter jurisdiction the claim concerned entitlement estate in under 28 U.S.c. ~ 1331, because to health benefits under FEHBA, and was thus a claim "arising under" federal law. [d. The district court disagreed, however, and dismissed for lack of subject matter jurisdiction. The Second Circuit affirmed, and so did the Supreme Court. The Supreme provision, Court closely and determined Empire, 547 U.S. at 698. displace ordinarily analyzed 5 U.S.C. that it "is not sufficiently applicable FEHBA's broad to confer It said: "If Congress intends a preemption instruction completely thereby, Congress has not done so here,"' Moreover, the Court observed that the text of ~ 8902(m)(l) to render inoperative preemption federal jurisdiction." state law, and to confer federal jurisdiction expected to make that atypical intention clear. citations omitted). ~ 8902(m)(l), to it may be Jd. (internal "does not purport any and all state laws that in some way bear on federal employee-benefit plans." Jd. The Court contrasted the FEHBA provision with the text of ~ 514(a) of ERISA, which provides that certain portions of ERISA '" supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan,''' at 29 U.S.c. id. (quoting ~ 5 14(a) of ERISA, codified ~ I 144(a)), and which the Supreme Court has held completely giving rise to federal question jurisdiction, in some circumstances. -9- preempts state law, The Court remarked that FEHBA is "unusual in that it renders preemptive provisions enacted by Congress." Ul 8902(m)(I)] contract terms in health insurance plans, not ld. at 697. In the Empire Court's view, "a mouest reading of is in order," because S 8902(m)(I) "declares no federal law preemptive"; it gives preemptive effect to the "terms of an OPM-[ carrier] negotiated contract." sum," the Court concluded that "the presentations ... fail[ed] to establish that Therefore, jurisdiction," it "extract[ed] from S 8902(m)(l) no prescription fd. at 698. "In S 8902(m)(I) plans .... " fd. leaves no room for any state law potentially bearing on federal employee-benefit at 699. rather, for federal-court ld. As defendants acknowledge, the Fourth Circuit has not determined either before or after Empire, whether FEHBA establishes in a reported opinion, complete preemption. Although the Fourth Circuit was presented with that question in Caudill v, Blue Cross & Blue Shield o.fNorlh Carolina, Inc" 999 F,2d 74 (4th Cir, 1993), the Court declined to resolve it. See id. at 77 ("[W]e need not answer the question whether the FEHBA completely preempts state law claims under federal health insurance contracts."). In Caudill, an enrollee in a FEHBA plan sued her carrier in state court for breach of contract, seeking to recover the cost of high dose chemotherapy treatment for breast cancer. fd. at 76, Her carrier denied coverage, and the carrier's decision was affirmed by OPM, leading to the enrollee's state court suit. federal question jurisdiction. fd. at 77, The carrier removed to federal court on the basis of The federal district court denied the enrollee's and thereafter granted summary judgment to the carrier. the district court's denial of her motion to remand. federal question jurisdiction: motion to remand, fd. On appeal, the enrollee challenged The carrier advanced two alternate bases for first, that FEHBA completely preempted state law; and second, that - 10- . -------------~ the suit was governed by "federal common law," which the carrier argued "supplants state law either partially or entirely regardless of Congress' Id. at 77. intent to preempt the area involved." As noted, the Court did not decide the question Rather, it held that removal was appropriate Id. common law. However, contract law would undermine of complete statutory preemption. because the area of law was governed by federal the Fourth Circuit observed that "the very application the uniformity envisioned by Congress of state when it delegated authority to interpret health benefit contracts to OPM." Id. at 79. Thereafter, Hospital, supra, 192 F. Supp. 2d 384, Judge Nickerson relied on Caudill in determining FEHBA completely emphasize(d] federal benefits to federal employees." Court expressly jurisdiction interest' in regulating Id. at 387-88. the provision It is noteworthy, Caudill in Empire, rejecting overruled in St. Mary's that state law, observing that the Fourth Circuit in Caudill "strongly preempts the 'uniquely the in that case could arise either from FEHBA the of health therefore, claim statutory care and that the Supreme that federal preemption question or a federal common law basis. See Empire, 547 U.S. at 689 (citing Caudill among cases presenting circuit split). In the wake of Empire, several federal courts have recognized that FEHBA does not completely preempt state law, and therefore a FEHBA preemption defense cannot form the basis of federal question jurisdiction. See, e.g., Pollitt v. Health Care Servo Corp., 558 F.3d 615, 616 (7th Cir.) (stating that Empire "holds that federal law does not completely health-insurance removal under coverage 9 for federal workers" and that "the district court erred in allowing 1441 and dismissing the suit as completely preempted"), Ct. 296 (2009) (petition subsequently occupy the field of cert. granted, 130 s. dismissed by joint stipulation of the parties); Farnsworth v. - II - - ----- ------------------------------ Harston, No. 2: I 0-cv-238 CW, 2011 WL 285811 (D. Utah Jan. 27, 2011) (citing Empire, stating that "FEHBA does not give rise to complete preemption," and granting motion to remand); Wesl Virginia ex reI. McGraw v. CVS Pharmacy, Inc" 748 F. Supp. 2d 580, 583-85 (S.D.W.Va. 2010) (remanding "complete to state court for lack of subject matter jurisdiction preemption did not apply" to FEHBA, and therefore because Empire holds that "FEHBA does not provide Van Horn v. Ark. Blue Cross & Blue Shield, 629 F. Supp. federal subject matter jurisdiction"); 2d 905, 907-12 (E.D. Ark. 2007). do not cite any post-Empire cases holding that FEHBA preemption Defendants for subject matter jurisdictionW decided after 2006. To be sure, defendants cite two unreported See Barnes v. Humana, Inc., No. 8:09-CV-524-T-30MAP, is a basis cases that were 2009 U.S. Dis!. LEXIS 52673 (M.D. Fla. June 23, 2009); Pellicano v. Blue Cross Blue Shield Ass'n, Civ. No. (M.D. Pa. Aug. 11,2011) 3:ll-CV-406 (report and recommendation of magistrate judge). But, those decisions considered the issue of FEHBA preemption as a substantive defense; they did not hold that FEHBA completely preempts applicable state law and did not hold that FEHBA preemption provides a basis for subject matter jurisdiction. In sum, Nevertheless, Empire foredoses it does not necessarily defendants' II assertion of subject matter jurisdiction. foreclose their sllbstantive defense that plaintiffs daim is The Court's research has uncovered one unreported post-2006 district court decision upon FEHBA preemption for removal jurisdiction, but that decision does not cite Empire. See Ala. Dental Ass 'n v, Blue Cross & Blue Shield of Ala., Inc., No. 205-CV -1230MEF, 2007 WL 25488 (M.D. Ala. Jan. 3, 2007). It is noteworthy that the case was removed to federal court and plaintiffs motion to remand was fully briefed before the Supreme Court issued its decision in Empire. 10 relying II Two of the pre-Empire cases cited by defendants also considered preemption only as a substantive matter, and not a jurisdictional malter. See Carter v, Blue Cross Blue Shield of Fla., Inc., 61 F. Supp. 2d. 1241 (N.D. Fla. 1999); Negron v. Patel, 6 F. Supp. 2d 366 (E.D. Pa. 1998). - 12 - preempted by FEHBA. The merits of their pre~mption defense (which is a subject defendants' motions to dismiss) will be a matter for the state court to determine on remand. of 12 Conclusion For the foregoing reasons, I conclude that this Court lacks subject matter jurisdiction this case. Accordingly, pursuant to 28 U.S.C. 9 1447(c), the case must be remanded District Court of Maryland (Baltimore City). An Order implementing Date: October 5, 2011 over to the this ruling follows. /s/ Ellen Lipton Hollander United States District Judge Defendants rely principally on SI. Mary's Hospital for the proposition that a health care provider's state-law claim against a FEHBA plan carrier is preempted by FEHBA. Although Empire overruled St. Mary's Hospital's holding as to subject matter jurisdiction, St. Mary's Hospital may remain persuasive authority with regard to whether health care providers' claims against FEHBA carriers are preempted as a substantive matter. It is worth pointing out, however, that there is also authority to the contrary. In Cedars-Sinai Medical Center v. National League of Postmasters, 497 F.3d 972, 975-80 & n.4 (9th Cir. 2007), the Ninth Circuit expressly rejected St. Mary's Hospital, and held that a medical provider's suit against a FEHBA plan carrier was not substantively preempted (in large part because FEHBA's administrative remedy through OPM is available only to plan enrollees and their covered family members, not to health care providers). It will be for the state court on remand to determine whether St. Mary's Hospital or Cedars-Sinai has the better of the argument. 12 - 13 -
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