Supreme Court takes on an FEHB Act issue

The U.S. Supreme Court today agreed to review the U.S. Court of Appeals for the Seventh Circuit's March 2009 opinion in Pollitt v. Health Care Service Corp. The case raises the following questions:

1. Whether the Federal Employees Health Benefits Act ("FEHBA"), 5 U.S.C. §§ 8901-14, completely preempts -- and therefore makes removable to federal court -- a state court suit challenging enrollment and health benefits determinations that are subject to the exclusively federal remedial scheme established in FEHBA.

2. Whether the federal officer removal statute, 28 U.S.C. § 1442(a)(1), which authorizes federal removal jurisdiction over state court suits brought against persons "acting under" a federal officer when sued for actions "under color of [federal] . . . office," encompasses a suit against a government contractor administering a FEHBA plan, where the contractor is sued for actions taken pursuant to the government contract.

This hearing will require the Supreme Court to consider the scope of its 2006 decision in Empire Blue Cross v. McVeigh. In that case, the Supreme Court by a 5-4 vote affirmed a Second Circuit U.S. Court of Appeals decision authored by then Judge and now Supreme Court Justice Sonia Sotomayor. I am hopeful that the Supreme Court will answer these questions in the affirmative because these cases which concern federal employee benefits should be heard in federal court.