United States District Court, S.D. Florida, Miami Division
ORDER DENYING DEFENDANTS' MOTION FOR
FEDERICO A. MORENO UNITED STATES DISTRICT JUDGE.
CAUSE came before the Court upon Defendants' Motion for
Reconsideration (D.E. 68), filed on
July 16, 2018, of this Court's
Order Remanding the Case to State Court (D.E. 67), issued on
July 6, 2018.
COURT has considered the motion, the pertinent portions of
the record, and being otherwise fully advised in the
premises, it is
that the motion is DENIED. Defendants argue that the Federal
Officer Removal Statute, 28 U.S.C. § 1442(a)(1), confers
subject matter jurisdiction. The statute provides subject
matter jurisdiction over an action against "any officer
(or person acting under that officer) of the United States or
any agency thereof, in an official or individual capacity,
for or relating to any act under color of such office . .
." 28 U.S.C. § 1442(a)(1). A private party seeking
to remove under the Federal Officer Removal Statute must
satisfy four criteria: "(i) it must be a person; (ii) it
must be acting under a federal officer or agency; (iii) it
must be sued for actions under color of such office; and (iv)
it must have a colorable federal defense." Assocs.
Rehab. Recovery, Inc. v. Humana Med. Plan, Inc., 76
F.Supp.3d 1388, 1391 (S.D. Fla. 2014) (Moore, J.).
Defendants argue that because REVA has alleged that various
Defendants have failed to pay REVA's usual and customary
charges for claims submitted for services rendered to
individuals who are enrollees in Medicare and the Federal
Employees Health Benefits Act-governed Service Benefit Plan,
Defendants may remove this case pursuant to the Federal
Officer Removal Statute. Defendants' argument, however,
presupposes that this case indeed involves claims for payment
or coverage under Medicare or the Federal Employees Health
Benefits Act. The Complaint does not allege a claim for
payment or coverage under government plans, nor does it
challenge the actions of Defendants with respect to their
administration of any Medicare or Federal Employees Health
Benefits Act plan.
support their contention that REVA's claim is based on a
federal plan, Defendants rely primarily on the Declaration of
Lisa Strother, Litigation Management Consultant for
Defendants Blue Cross and Blue Shield of Florida, Inc. and
Health Options, Inc. Strother states that she
"determined that, during the time period relevant to
REVA's Complaint, Florida Blue ha[d] received and
administered claims from REVA for providing . . . services to
at least eight (8) individuals who are enrollees in the
[Federal Employees Health Benefits Act]-governed Service
Benefit Plan." D.E. 1-2 ¶ 47. As an example,
Strother refers to patient B.Q., a patient allegedly enrolled
in the Service Benefit Plan, wherein REVA rendered services
to patient B.Q. in 2016 and the claims were "completely
denied by Florida Blue under the Service Benefit Plan."
Id. at ¶¶ 50-51. See also Id. at
¶¶ 52-53 (stating that REVA's claims for
services provided to patient M.T., a member of a Service
Benefit Plan, in 2016, were denied by Defendant Florida
rely on Anesthesiology Assocs. of Tallahassee, Fla., P.A.
v. Blue Cross Blue Shield of Fla., Inc., where the
Eleventh Circuit affirmed the district court's finding of
federal subject matter jurisdiction over a provider who sued
Blue Cross for denials of coverage for services allegedly
covered by Medicare plans. No. 03-15664, 2005 WL 6717869, at
* 1 (11th Cir. Mar. 18, 2005). In Anesthesiology,
the district court found federal jurisdiction under the
Federal Officer Removal Statute, but noted that the complaint
"does not contain specific factual allegations regarding
the patients treated, the dates of services, or the dates
that any claim was submitted to Blue Cross."
Anesthesiology Assocs. of Tallahassee, Fla., P.A. v. Blue
Cross Blue Shield of Fla., Inc., No. 4:03-cv-00011 (D.E.
39 at 2) (N.D. Fla. Sept. 22, 2003) (Mickle, J.). The
district court further concluded that "[t]he complaint
does not limit itself to any category of Blue Cross
subscribers and covers all of the patients covered by Blue
Cross that [the plaintiff] treated." Id.
Finally, the court noted that "[a] review by Blue Cross
of its records identified numerous claims submitted by [the
plaintiff] for patients covered by ERISA and [Federal
Employees Health Benefits Act] health care plans."
Id. The district court found federal officer removal
jurisdiction because Blue Cross was "a government
contractor administrating a federal health plan . . ."
Id. at 4. In affirming the district court, the
Eleventh Circuit concluded that "[a] number of the plans
were covered by ERISA or by [the Federal Employees Health
Benefits Act]," Anesthesiology, 2015 WL 6717869
at *1, and that the "suit [was] based on [the
defendant's] failure to reimburse [the plaintiff] for
services allegedly covered by the plans." Id.
Anesthesiology's facts are materially
distinguishable from the ones presented here. In
Anesthesiology, the complaint made no mention of the
specific patients treated or the types of plans at issue. The
defendant's verified notice of removal, however, stated
that the "[p]laintiff [was] challenging Blue Cross's
actions in paying benefits which were taken in the course of
administering a federal government health benefits plan . .
." Anesthesiology, No. 4:03-cv-00011(D.E. 1
¶ 23). Here, in their notice of removal, Defendants-by
means of Strother's declaration-suggest that this case
similarly involves Medicare and Federal Employees Health
Benefits Act plans. Significantly, unlike the plaintiffs in
Anesthesiology, REVA submitted a declaration from
Michael Labinski, the company's Chief Financial Officer,
wherein he states that "there are 15-20 claims at issue
in this lawsuit" and the "lawsuit does not include
any claims involving the Federal Employees Health Benefits
Act, nor the Medicare Advantage program." D.E. 55-1
¶¶ 5-6. Thus, this Court is faced with competing
declarations. Defendants claim that this case involves the
administration of certain government plans. Meanwhile, REVA
offered evidence to rebut Defendants' sworn
statement-in the form of Labinski's declaration-and
submits that said government plans are not encompassed in
question, then, is whether Defendants have met their burden
of providing that federal jurisdiction exists by a
preponderance of the evidence. See Williams v. Best Buy
Co., 269 F.3d 1316, 1319 (11th Cir. 2001). They have not
because REVA properly rebutted Strother's declaration
with its own declaration stating that, for purposes of this
lawsuit, none of the claims involved Medicare or Federal
Employees Health Benefits Act plans. Other district courts
have similarly remanded cases for lack of subject matter
jurisdiction because of conflicting affidavits. See
Mangano v. Garden Fresh Rest. Corp., No.
2:15-CV-123-FTM-29CM, 2015 WL 2199914, at *2 (M.D. Fla. May
11, 2015) (remanding case because the defendant did not meet
its burden where plaintiff and defense counsel's
"competing affidavits do not aid [the] [d]efendant in
plausibly establishing the amount in controversy" for
diversity jurisdiction); Design Ctr. of the Americas, LLC
v. Mike Bell Inc., 54 F.Supp.3d 1339, 1342 (S.D. Fla.
2014) (Conn, J.) (remanding case because the defendant did
not meet its burden where there were "two conflicting
affidavits" attempting to establish the amount in
controversy for diversity jurisdiction).
aside, the Court notes that Defendants' declaration
states that REV A rendered services to patients of Florida
Blue and the claims were "completely denied." D.E.
1-2 ¶ 51. This complete denial theory is wholly
inconsistent with the relief sought in this case. REVA's
Complaint seeks reimbursement for underpaid
emergency services. Indeed, this Court noted in its Order
Remanding the Case to State Court, that "REVA's
claims are more akin to a rate of payment dispute because
REVA does not allege that Defendants failed
to pay, but rather that Defendants 'grossly
underpaid REVA' for its services."
D.E. 67 at 6 (quoting D.E. 1-1 ¶ 2) (emphasis in
original). Contrary to Defendants' contention, it is
within the realm of reason that REVA seeks reimbursement for
a handful of claims-not related to government plans-that
occurred while REVA was providing services to Medicare or
Federal Employees Health Benefits Act patients-for which REVA
does not seek reimbursement for in this case. To be sure,
"[A]ny doubts regarding the existence of federal
jurisdiction" are to be resolved "in favor of the
non-removing party." Pacheco de Perez v. AT&T
Co., 139 F.3d 1368, 1373 (11th Cir. 1998). Thus,
Defendants have not met their burden of establishing subject
matter jurisdiction and the case is to be REMANDED to the
Circuit Court for the Eleventh Judicial Circuit in and for
 The Court may rely on the declaration
submitted by REVA in its Motion to Remand (D.E. 55) because,
"[i]n assessing whether removal [is] proper ... the
district court has before it only the evidence available when
the motion to remand is filed-i.e., the notice of removal and
accompanying documents." Lowery v. ...