On April 25 at 11 AM, the U.S. Supreme Court will hear oral argument in Empire HealthChoice Assurance Co. v. McVeigh, No. O5-200, on review from the U.S. Court of Appeals for the Second Circuit. This is the first Federal Employees Health Benefits (FEHB) Act interpretation case ever to reach the Supreme Court.
The Supreme Court will consider whether federal question jurisdiction (28 U.S.C. § 1331) exists over a suit by a federal government contract / FEHB plan carrier (in this case Empire) to enforce, on behalf of the United States, a FEHB plan provision, specifically in this case the reimbursement/subrogation provision, that is part of a government contract established pursuant to the FEHB Act, 5 U.S.C. § 8901 et seq. The principal merits briefs are available here.
Anthony Shelley from Miller & Chevalier will argue the case for Empire, and he will split his 30 minutes of argument time with the Solicitor General, who has filed an amicus brief in support of Empire's position that the plan can sue in federal court to enforce its reimbursement/subrogation provision. That's a self-evident proposition to me, and I trust that the Supreme Court has taken the case in order to reverse the Second Circuit, which reached a contrary result. The Second Circuit opinion is the outlier here. For example, the Seventh Circuit in the Cruz case reached the result that Blue Cross is advocating before the Supreme Court. I know that Tony will make a great argument, and I wish him well.