morning honors may please the court feinberg on behalf of the appellant louisiana health service and indemnity company which does business as blue cross and blue shield of louisiana but what i will call blue cross the primary issue in this case is whether blue cross properly removed this case to federal court under the federal officer removal statute twenty u s c fourteen forty two and i'm going to focus almost exclusively not exclusively on that question as opposed to the other three p to get out from the attorney see a word because we believe that our office of removal position is so strong here but it's a position and an argument that the district court did not grapple with at all in fact the district court doesn't even mention before i get into the legal test i'd like to outline some of the key facts although many courts before today have done that already including in the can call this case in the ninth circuit the jack circuits eighth circuit jack's case from the eighth circuit and circuit which doesn't deal with federal officer removal book goes into quite a lot of detail about this program and i think it's quite clear that blue cross does act under the federal government particularly the office of personnel management took the position of the briefs that even if you forget about the twenty eleven amendments which i think very clearly expand the scope of the statute does this court sentence rang in no uncertain terms but that even under the prior language this be safely removable under and the really sort of two separate reasons for the both the specificity of the instructions that blue cross gets from the federal government as well as the general legal notion that even under the old toughest there's no requirement for specific direction on behalf of the federal government you just have to be acting generally under the direction or guidance of the federal government but that is not what hell i mean so in our tell they said even though you're working for the navy in building the ship in all this with these bestest nothing prevented you from warning the people working on the ship about the dangers of these vest s ok so here what prevents blue cross the fact that they're allowed to pay the insurer directly what prevents them from paying the hospital so let me answer that factual question because i think this factually is in its not like part tell it's more like the strict liability claims that are addressed in the other address and all these cases it was waived in part tell of course but it's addressed in self why and in some of the other cases so let me walk you through the provisions so on page three nineteen and three i'm sorry for eighty for the statement of benefits or brochure which is the booklet that goes to the subscribers and is part of the federal government contract that is authorized for release by the federal agency o p m says and i know this doesn't specifically answer your question judge change but i'm building up to it it says that blue  cross reserves the right to pay you the roll it directly for all covered services and then the contract itself says the carrier reserves the right to pay the member directly for all covered services that's page seventy six of the record and then it page ninety four the record the contract says benefits provided under the contract are not assignable by the member to any person without express written approval of the carrier and in the absence of such approval any such assignment shall noting so what's what's the issue here it's some level you might think well is there some discretion in terms of who book who cross pays but the ultimate answer is actually no because the ability to sometimes pay the provider and sometimes not pay the provider depends on whether or not the provider is a so called participating provider or a p p o provider and this is addressed specifically in the in the federal claim so if you look for example at record page one eighty eight and one eighty nine it describes the notion that there is this network of contract providers and here's what it says remember this is part of the government contract it says of p p o providers that are referred to as preferred quote they will generally build a local plan directly to the local plan is blue cross that's defined in the in the plan itself the definition if you can find for that on the record page three twenty two says they will build generally build a local plan directly who will then take them directly as in the providers then there's another provision about participating providers which is sort of a their contract it providers but they're not in this prefer network and it says we pay them directly we use also to find a record page to be twenty seven to include the service benefit plan as well as the local plans like blue cross the minister of the plan and then turning on record page one eighty nine it describes nonparticipating provide providers and here's what it says we will then pay our benefits to you which is defined to mean the in rolly and you  pay the provider again mandatory language so some of the language in the contract appears to give discretion generally but this more specific language says you have to pay the member directly in if there's a nonparticipating provider and you have to pay the provider directly if it is a participating writer and there's an important federal interest behind that is it drives cost down if you incentivize a provider to sign up and be contracted or participating provider they agreed to accept a lower amount this is also described right in the plan itself record page one eighty eight and so on the federal government wants the carrier to do this it wants to incentivize providers to sign up and accept lower costs and one of the incentives to get providers to do that is to say well we'll do something convenient for you we'll pay you directly but so i think as a factual matter this is the instructions you are either more specific than the cases like barto but i think there's another important issue which is i'm looking at it took me a minute to get this to come up but i'm looking at our way ninety four which was the thing about the benefits provided in the right to approve that if they want it i mean i'm still trying to make the parallel between while the guy maybe never said to the bar to the bar tell company where i can't remember the name of the company that they had to give any warnings to anybody they didn't prevent it so this doesn't prevent the blue cross association from approving the assignment right but you're saying something else to us but rather a non p p o cannot be a sign that this is sort of meaningless about the rate approval of the carrier there is no such thing it's that's not true that it is meaningful in a general sense but the written approval of the carrier for example might come in the form of a an agreement with the provider that says we will accept your sign which we will pay you directly if you become a participating provider so i think that specific language that i read from pages one eighty one eighty nine about you must pay the provider for if they're participating or preferred and you must pay the individual if not is just an instance of the more general language of page ninety four so that's not giving the discretion seems to because it's limited by later exactly ok but i do want to return to this fundamental legal point we've that that was the case there but a number of this court's cases specifically say you do not have to have federal direction and this goes back before bar twelve so if there's an issue of the rule of orderly in this it wouldn't be part tell that governs on which judge james we've been discussing a lot and in fact the court in sarang says that that would be inconsistent with the plain language of the statute because it would essentially mean you have to prove your federal defense instead of just having a colorable federal these claims or anything at all in connection with this program out of its own funds it pays the money out of a federal letter of credit account which is held in the federal treasury vest direct access to that federal treasury  and the court in jackson health for each go into quite some detail about how this works and if there's money left over in the federal treasury so it belongs to the federal government not to cross so it's playing with the government's money in essentially all things that it does this court in houston community hospitals noted in a footnote he thinks footnote fifty six that ford justice is in the supreme court in the empire case specifically said that the federal government is the real party in interest in the pick cases because that's where the money comes from and of course we saw that five district courts all of which is about held the federal sovereign immunity defense on the specific grounds that it was the federal government's money at issue and there are no cases that we're aware of on the other side this court of course in omega granted it's an unpublished decision also found that that was sufficient to at least come up law on one side and nothing that we're aware of at least on the other side but i do want to go back to a change to your point about the causal nexus issue because as i mentioned there are cases that predate bar tell that i think tell of quite a different story we cited one bell versus thornburgh and the facts are quite clear that there was no specific federal direction at all it was an employment discrimination case by a chapter thirteen standing trustee who was a private citizen but but essentially worked under the u s trustee with who's an employee of the department of justice and the plaintiffs sued the standing trustee of this private citizen for allegedly fired her on the basis of race and it's quite clear that no federal officer at all order that the employee fired there was a group the national organization of chapter thirteen trustees that is the courts as suggested that she be terminated but the standing bankruptcy trustee declined to do that it first put her in a new position and only later fire and here's what this court says upholding the removal removal was proper based on the standing trustee thornburg allegation that quote him his him or his quote employment actions relative to bell who is the plaintiff were performed under the color of his office in the performance of his duties there under after input not direction input from the peer review process and involving communication with and involvement of the united states trustee and a united states bankruptcy judge again no specific direction was required in bell versus thornburg in order to find the case properly that's still ok and if you look back this goes back many years the fundamental test is were you acting within the scope of your employment even if it's a discretionary act was it something within the scope of your employment and seventy's this court cited in peterson vs blue cross i'm sure so the test does not require that the federal government specifically commanded that hey you removing party you shall ok thank you  right this is a state case involving directly conflicts with federal requirements which is this whole business of the p p o versus the non p p o i think you hit that right on the head the very beginning the contract does not tell them that they cannot take a we were here based on federal employees only why haven't they paid the sixty five nonfederal informing patients or federal point patients of st charles we have seventy potential  justifies them under the federal law at least with the federal employees i'm not getting into the merits este anybody else or really the merits as to the federal always it's just is that enough of a link to make the federal officer come into play and notion that the federal government decided they want to pay for some percentage of the health care costs or insurance costs for their employees they want to govern that the money on and so they have a set of rules that maybe would not apply to you know a b c corporation that just is having employees that have a health care policy that we cover by recess so a recess and and the federal government running the show are two really different concepts to me and we believe that the second factor second third factor couple federal defenses we don't believe apply but we're focused on the control we don't believe it's our position that the federal government is so that's separate from where the case can be removed whether the with the case is believe it or not you can win in court has happened so the fact that you may be able to prevail on parts of the case or the whole case doesn't because i was looking for your distinction believe is more patrolling the eleventh circuit on published opinion case as i said it just stopped short of a complete analysis of the it's the governance any you know company it's not limited to the federal government so i'm trying to understand why that would answer the question of whether o p m is running the show when we're talking about federal employee health care insurance and as you were talking about earlier how much control does blue cross have to go against this p p o versus a not p p o scenario and we just don't believe that that the control in terms of that as the question for the removal point i see it as a merits question that could be very good for you but i think the removal question is because there would be jurisdiction over the whole case if you have a piece of it that's removable right and so here the question is because there are in fact you don't dispute federal employees involved in this case or their claims if you will then to do whatsoever with the federal office or removal statute and is only potentially relevant with respect to the second of blue crosses three federal defenses and that is preemption we've already talked about sovereign immunity preemption same answer all right now i just think washing repeat is has a case and you're saying the other saying charles case was not involving a claim of federal officer removal exactly the just to be clear  central sites only three federal officer removed cases they're all district court cases they're all discussed in footnote sixty nine of our reply brief and none of them look like this but to then are would it be true that we would be creating a circuit  split if we were to affirm absolutely there's just no card or any circuit said have gone their way on this because then we're not creating the split we're just picking sides you're saying all the circuits have decided this granted it was in which is that's just not relevant that's a merits question and it could be because they made a mistake or didn't want to or who knows and that can be discussed on the merits but there is a reason and if you look at the repeats case the repeats case says that there it talks about the fact that there were provisions in the health plans and doesn't honor the assignment provisions which would have trumped the assignments because the plan term said if any provision in this plan is in violation of louisiana law then the plan will be reformed to conform with louisiana law so it may be but there are some plans even ones involving other ended up at st charles surgical hospital i would be consistent construed under the texas version of whatever plan i have and so st charles may be getting paid in that context even though i fell in louisiana igs exactly argument exactly i'm not saying the exam law does or doesn't apply to me falling in louisiana i'm saying that your point exactly because that person's health plan is a texas state health plan i don't i don't know but that's  which don't really get into the weeds of subrogation which is what both of those cases were about they focused more on the way the overall program works in the fact that opium has a very strong supervision over the blue cross  thornburgh from this court says no but we tell this interesting story from this davis versus south carolina case in a brief that the was an old supreme court case that the supreme court much more recently in wat discusses where the somebody is sort of deputized a private citizen goes around to the back of the house and accidentally shoots the guy trying to escape and there is clearly no federal direction that he shoots the person and