Today the Supreme Court granted certiorari in one case of interest to the business community:
Removal to Federal
Court—Complete Preemption Doctrine—Federal Officer Removal
Under Beneficial National Bank v. Andersen, 539 U.S.
1 (2003), the test for determining whether a state law is
“completely preempted” by federal law, and thus whether lawsuits
brought under that state law are removable to federal court
under 28 U.S.C. § 1441, is whether the federal law “provide[s]
the exclusive cause of action for the claim asserted.”539 U.S.
at 8. Under Watson v. Philip Morris Cos., 551 U.S. 142
(2007), the test for determining whether a government contractor
can remove a case to federal court pursuant to the federal
officer removal statute, 28 U.S.C. § 1442(a), is whether, “in
the absence of a contract with a private firm, the government
itself would have had to perform.” 551 U.S. at 154.
Today, the Supreme Court granted certiorari in Health
Care Service Corporation v. Pollitt, No. 09-38, to decide
two questions relating to the availability of removal: first,
whether the Federal Employees Health Benefits Act (“FEHBA”), 5
U.S.C. §§ 8901–8914, completely preempts—and therefore makes
removable to federal court—a state-law suit challenging benefit
determinations that are subject to the FEHBA; and second,
whether the federal officer removal statute encompasses a suit
against a government contractor administering a FEHBA plan,
where the contractor is sued for actions taken pursuant to the
Pollitt is of considerable importance to all
businesses that contract with the federal government. How the
Court resolves the questions presented may substantially affect
the ability of government contractors to remove to federal court
lawsuits that arise from their performance under such contracts.
In the decision below, the Seventh Circuit held that the
FEHBA does not completely preempt state-law claims because, in
its view, “that federal law does not completely occupy the field
of health-insurance coverage for federal workers.” 558 F.3d 615,
616. In holding the complete preemption doctrine applicable only
when federal law completely occupies the relevant field, the
Seventh Circuit created an implicit conflict with other federal
appellate courts, which have held the complete preemption
doctrine applicable when federal law provides the exclusive
cause of action for the claim asserted.
The Seventh Circuit also held that a government contractor
may remove a case under the federal officer removal statute if
but only if the contractor’s allegedly wrongful conduct was at
the “directive” of the federal agency with which it contracted.
558 F.3d at 617. That conclusion was in implicit conflict with a
holding of the Second Circuit, which had previously held that
removal under 28 U.S.C. § 1442(a) is available whenever the
contractor’s allegedly wrongful conduct arose from the
performance of its contract, whether or not the government
specifically directed that conduct.
Absent extensions, amicus briefs in support of the petitioner
will be due on December 4, 2009, and amicus briefs in support of
the respondents will be due on January 4, 2010. Any questions
about this case should be directed to Marcia Madsen (+1
202 263 3274) in Mayer Brown’s Washington, D.C. office.
Last week, the Supreme Court also invited the Solicitor
General to file briefs expressing the views of the United States
in four other cases of interest to the business community:
Williamson v. Mazda Motor of America, Inc., No.
08-1314. The questions presented involve the implied preemption
of state-law tort claims. Mayer Brown represented the Alliance
of Automobile Manufacturers as an amicus in the case below.
Costco Wholesale Corp. v. Omega, S.A., No. 08-1423.
The question presented is whether the first-sale doctrine
recognized under the Copyright Act applies to imported goods
Missouri Gas Energy v. Schmidt, No. 08-1458. The
questions presented involve the constitutionality of state taxes
imposed on natural gas shipped in interstate pipelines.
Golden Gate Restaurant Assoc. v. City & County of San
Francisco,, No. 08-1515. The question presented is whether
ERISA preempts local laws requiring employer contributions to
employee health benefits.
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