Karen Hansen v. Group Health Cooperative

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KAREN HANSEN, on her own behalf No. 16-35684
and on behalf of other similarly
situated persons; BETTE JORAM, on D.C. No.
her own behalf and on behalf of 2:15-cv-01436-
other similarly situated persons, RAJ
Plaintiffs-Appellants,
v. OPINION
GROUP HEALTH COOPERATIVE,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Argued and Submitted May 11, 2018
Seattle, Washington
Filed September 4, 2018
Before: Ronald M. Gould and Sandra S. Ikuta, Circuit
Judges, and John R. Tunheim, * Chief District Judge.
Opinion by Judge Gould
*
The Honorable John R. Tunheim, Chief United States District
Judge for the District of Minnesota, sitting by designation.
2 HANSEN V. GROUP HEALTH COOPERATIVE
SUMMARY **
ERISA Preemption
The panel reversed the district court’s exercise of subject
matter jurisdiction in dismissing state law claims brought by
mental health providers against an insurance company, and
remanded for the entirety of the dispute to be returned to the
state court from which it had been removed.
The mental health providers filed a class action
complaint in state court, alleging violation of the
Washington Consumer Protection Act in defendant’s use of
certain screening criteria for mental healthcare coverage.
Defendant removed the case to federal court on the ground
that the providers had been assigned benefits by patients who
were insured under health plans governed by the Employee
Retirement Income Security Act, which, defendant asserted,
therefore completely preempted the providers’ claims. The
district court dismissed in part, concluding that the
providers’ claims were subject to conflict and express
preemption to the extent that they concerned defendant’s
business practices in administering ERISA plans. The
district court declined to exercise supplemental jurisdiction
over the providers’ claims as to defendant’s administration
of non-ERISA plans, and it remanded that part of the case to
Washington state court.
The panel held that the providers’ claims did not fall
within the scope of, and so were not completely preempted
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
HANSEN V. GROUP HEALTH COOPERATIVE 3
by, ERISA section 502(a)(1)(B). There was no dispute that
the providers’ claim for wrongfully licensing allegedly
biased mental health coverage guidelines was based on an
independent duty to refrain from engaging in unfair and
deceptive business practices. The panel held that there also
was not complete preemption of a claim that defendant used
its treatment guidelines to avoid complying with
Washington’s Mental Health Parity Act, or of a claim that
defendant unfairly competed in the marketplace by
discouraging its patients from seeking treatment by rival
practitioners. The panel concluded that all three of the
providers’ claims for unfair and deceptive business practices
were based on independent duties beyond those imposed by
their patients’ ERISA plans.
The panel reversed the district court’s exercise of subject
matter jurisdiction in dismissing the providers’ claims, and
it remanded with instructions for the district court to return
the entirety of the action to the Washington state court.
COUNSEL
Albert H. Kirby (argued), Sound Justice Law Group PLLC,
Seattle, Washington, for Plaintiffs-Appellants.
James Derek Little (argued) and Medora A. Marisseau,
Seattle, Washington, for Defendant-Appellee.
4 HANSEN V. GROUP HEALTH COOPERATIVE
OPINION
GOULD, Circuit Judge:
Three years ago, a pair of Washington residents sued a
Washington-based company under Washington law in a
Washington court. The company responded by removing
the case to federal court under the so-called “complete
preemption” doctrine. The district court exercised
jurisdiction, dismissed some of the claims, and remanded the
remainder to state court. We reverse and remand for the
entirety of this dispute to be returned to state court.
I
Karen Hansen and Bette Joram are mental health
providers who live and work in Washington (collectively,
“Providers”). Group Health Cooperative (“GHC”), now
known as Kaiser Foundation Health Plan of Washington, is
a health insurance company with its principal place of
business in Washington.
In August 2015, the Providers filed a class action
complaint against GHC in a Washington state superior court.
According to the complaint, in January 2007 GHC adopted
screening criteria for mental healthcare coverage called the
Milliman Care Guidelines. GHC allegedly uses these
guidelines as the “primary criteria” for authorizing
psychotherapy treatment.
The Providers claim that GHC’s use of the Milliman
Care Guidelines has injured their practices in violation of the
Washington Consumer Protection Act, Wash. Rev. Code
§ 19.86.020. That statute makes unlawful “[u]nfair methods
of competition and unfair or deceptive acts or practices in
the conduct of any trade or commerce.” Id.HANSEN V. GROUP HEALTH COOPERATIVE 5
Three of the Providers’ allegations are at issue in this
appeal. First, the Providers allege that GHC’s licensing of
the guidelines is inherently unfair and deceptive because the
treatment guidance is biased against mental healthcare.
Second, the Providers allege that GHC deceptively uses the
guidelines to avoid paying for mental healthcare coverage
required by Washington’s Mental Health Parity Act, Wash.
Rev. Code § 48.44.341. And third, the Providers assert that
GHC unfairly competes by employing its own
psychotherapists who strictly adhere to the guidelines and by
discouraging patients from seeking treatment from therapists
who do not work for the company. The Providers bring this
lawsuit on behalf of themselves and all Washington
psychotherapists who are not employed by GHC.
In September 2015, GHC removed this case to federal
court. GHC determined that Hansen and Joram had been
assigned benefits by three of their patients who were insured
under employer-sponsored health plans governed by the
Employee Retirement Income Security Act of 1974
(“ERISA”). The patients made these assignments so that
their therapists could appeal adverse benefit determinations
on their behalf. GHC argued that the benefit assignments
caused the Providers’ claims to be completely preempted by
ERISA, meaning there was subject matter jurisdiction in
federal court.
A month later, the Providers moved to remand the case
to state court, while GHC moved to dismiss the complaint.
In a consolidated order, the district court denied the motion
to remand and granted the motion to dismiss in part,
concluding that the Providers’ claims were subject to
conflict and express preemption to the extent that they
concerned GHC’s business practices in administering
ERISA plans. The court then declined to exercise
6 HANSEN V. GROUP HEALTH COOPERATIVE
supplemental jurisdiction over the Providers’ claims as to
GHC’s administration of non-ERISA plans, and remanded
that part of the case back to Washington state court. The
Providers appeal.
II
A
In our federal system, the States possess sovereignty
concurrent with that of the Federal Government, limited only
by the Supremacy Clause. Tafflin v. Levitt, 493 U.S. 455,
458 (1990). State courts enjoy a “deeply rooted
presumption” that they have jurisdiction to adjudicate all
claims arising under state or federal law. See id. at 459.
By contrast, “[w]e presume that federal courts lack
jurisdiction unless the contrary appears affirmatively from
the record.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332,
342 n.3 (2006) (citation omitted). Federal courts are courts
of limited jurisdiction and, as such, cannot exercise
jurisdiction without constitutional and statutory
authorization. Kokkonen v. Guardian Life Ins. Co. of Am.,
511 U.S. 375, 377 (1994). The great majority of federal
cases involve just two bases for jurisdiction. First, both
Article III and 28 U.S.C. § 1331 provide federal courts
jurisdiction over all cases “arising under” federal law. And
second, Article III and 28 U.S.C. § 1332 together confer
jurisdiction over certain cases involving citizens of different
states.
A plaintiff is the master of the plaintiff’s complaint, and
has the choice of pleading claims for relief under state or
federal law (or both). Caterpillar Inc. v. Williams, 482 U.S.
386, 398–99 (1987). If these claims do not involve federal
law or diverse parties, the action can be brought only in state
HANSEN V. GROUP HEALTH COOPERATIVE 7
court. See id. On the other hand, if these claims give rise to
concurrent jurisdiction, the plaintiff may choose to file in
either state or federal court. But if the plaintiff elects state
court, the defendant then has the option of removing the case
from state court to federal court under the general removal
statute, 28 U.S.C. § 1441. The upshot is that, in the absence
of diversity jurisdiction, “the plaintiff may, by eschewing
claims based on federal law, choose to have the cause heard
in state court,” Caterpillar, 482 U.S. at 399, under most
circumstances.
Given our constitutional role as a limited tribunal and our
“[d]ue regard for the rightful independence of state
governments,” Syngenta Crop Prot., Inc. v. Henson,
537 U.S. 28, 32 (2002) (citation omitted), “we strictly
construe the removal statute against removal jurisdiction.”
Geographic Expeditions, Inc. v. Estate of Lhotka ex rel.
Lhotka, 599 F.3d 1102, 1107 (9th Cir. 2010) (quoting Gaus
v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)). We must
exercise “prudence and restraint” when assessing the
propriety of removal because “determinations about federal
jurisdiction require sensitive judgments about congressional
intent, judicial power, and the federal system.” Merrell Dow
Pharm. Inc. v. Thompson, 478 U.S. 804, 810 (1986). If a
district court determines at any time that less than a
preponderance of the evidence supports the right of removal,
it must remand the action to the state court. See Geographic
Expeditions, Inc. v. Estate of Lhotka ex rel. Lhotka, 599 F.3d
1102, 1107 (9th Cir. 2010); California ex rel. Lockyer v.
Dynegy, Inc., 375 F.3d 831, 838 (9th Cir. 2004). The
removing defendant bears the burden of overcoming the
“strong presumption against removal jurisdiction.”
Geographic Expeditions, 599 F.3d at 1107 (citation
omitted).
8 HANSEN V. GROUP HEALTH COOPERATIVE
B
Removal based on federal-question jurisdiction is
reviewed under the longstanding well-pleaded complaint
rule. See Louisville & Nashville R.R. v. Mottley, 211 U.S.
149, 152 (1908). This rule provides that an action “aris[es]
under” federal law “only when a federal question is
presented on the face of the plaintiff’s properly pleaded
complaint.” Caterpillar, 482 U.S. at 392. As a result, “a
defendant cannot remove on the basis of a federal defense.”
Rivet v. Regions Bank of La., 522 U.S. 470, 478 (1998).
But a corollary to the well-pleaded complaint rule is the
artful pleading doctrine. Under that doctrine, “a plaintiff
may not defeat removal by omitting to plead necessary
federal questions.” Id. at 475 (quoting Franchise Tax Bd. of
Cal. v. Constr. Laborers Vacation Tr. for S. Cal., 463 U.S.
1, 22 (1983)).
The most common way that federal questions are
disguised as matters of state law involves what is known as
the “complete preemption” doctrine. 14C Charles Alan
Wright, Arthur R. Miller & Edward H. Cooper, Federal
Practice & Procedure § 3722.1 (4th ed. 2018). Complete
preemption refers to the situation in which federal law not
only preempts a state-law cause of action, but also
substitutes an exclusive federal cause of action in its place.
See Beneficial Nat. Bank v. Anderson, 539 U.S. 1, 8 (2003);
see also Schmeling v. NORDAM, 97 F.3d 1336, 1343 (10th
Cir. 1996) (“[R]emoval based on preemption is permissible
only if federal law provides a replacement cause of action.”).
We have observed that complete preemption is “rare.”
Retail Prop. Tr. v. United Bhd. of Carpenters & Joiners of
Am., 768 F.3d 938, 947 (9th Cir. 2014); ARCO Envtl.
Remediation, L.L.C. v. Dep’t of Health & Envtl. Quality of
Mont., 213 F.3d 1108, 1114 (9th Cir. 2000). Other circuits
HANSEN V. GROUP HEALTH COOPERATIVE 9
unanimously agree. See, e.g., Griffioen v. Cedar Rapids &
Iowa City Ry. Co., 785 F.3d 1182, 1189 (8th Cir. 2015);
Berera v. Mesa Med. Grp., PLLC, 779 F.3d 352, 360 n.9 (6th
Cir. 2015); Dutcher v. Matheson, 733 F.3d 980, 985 (10th
Cir. 2013); Cmty. State Bank v. Strong, 651 F.3d 1241, 1261
n.16 (11th Cir. 2011).
It stands to reason that “if a federal cause of action
completely preempts a state cause of action[,] any complaint
that comes within the scope of the federal cause of action
necessarily ‘arises under’ federal law.” Franchise Tax Bd.,
463 U.S. at 24. The doctrine thus aims “to prevent a plaintiff
from avoiding a federal forum when Congress has created a
federal cause of action with the intent that it provide the
exclusive remedy for the particular grievance alleged by the
plaintiff.” Arthur R. Miller, Artful Pleading: A Doctrine in
Search of Definition, 76 Tex. L. Rev. 1781, 1785 (1998).
Once completely preempted, a state-law claim ceases to
exist. See Beneficial Nat. Bank, 539 U.S. at 11. But that
does not mean the plaintiff has no claim at all. Instead, the
state-law claim is simply “recharacterized” as the federal
claim that Congress made exclusive. Vaden v. Discover
Bank, 556 U.S. 49, 61 (2009). The district court must either
treat the artfully pleaded claim for all purposes as the correct
federal claim, or else dismiss it with leave to formally
replead the claim under federal law. Singh v. Prudential
Health Care Plan, Inc., 335 F.3d 278, 292 (4th Cir. 2003);
see also, e.g., Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 56
(1987) (“[A]ll suits brought by beneficiaries or participants
asserting improper processing of claims under ERISA-
regulated plans [are to] be treated as federal questions
governed by § 502(a).”); Crull v. GEM Ins. Co., 58 F.3d
1386, 1391–92 (9th Cir. 1995) (remanding for the district
court to “take[] up the question of relief under ERISA’s civil
10 HANSEN V. GROUP HEALTH COOPERATIVE
enforcement scheme” after concluding that the state-law
claims are completely preempted).
The seminal complete preemption case is Avco Corp. v.
Aero Lodge No. 735, 390 U.S. 557 (1968). There, a
company sued a union in state court, styling its claim for
breach of their collective bargaining agreement as a breach
of contract under state law. See id. at 558. The union then
removed the case to federal court on the ground that federal
law governs a complaint for breach of a collective
bargaining agreement. Id. The federal court exercised
jurisdiction, and the Supreme Court affirmed. See id. at 560.
Avco’s reasoning was opaque, but as the Court later
explained, removal was proper because the company’s
breach of contract claim “really” arose under section 301 of
the Labor Management Relations Act. Franchise Tax Bd.,
463 U.S. at 23. That statute’s “preemptive force” is “so
powerful as to displace entirely any state cause of action ‘for
violation of contracts between an employer and a labor
organization.’” Id. (quoting 29 U.S.C. § 185(a)).
Equally powerful is ERISA’s primary civil enforcement
provision, section 502(a). Metro. Life Ins. Co. v. Taylor,
481 U.S. 58, 65–66 (1987). That section provides that “[a]
civil action may be brought . . . by a participant or
beneficiary . . . to recover benefits due to him under the
terms of his plan, to enforce his rights under the terms of the
plan, or to clarify his rights to future benefits under the terms
of the plan.” 29 U.S.C. § 1132(a)(1)(B). As the Supreme
Court elaborated in Aetna Health Inc. v. Davila, “[i]f a
participant or beneficiary believes that benefits promised to
him under the terms of the plan are not provided, he can
bring suit [under section 502(a)(1)(B)] seeking provision of
those benefits.” 542 U.S. 200, 210 (2004). “A participant
or beneficiary can also bring suit generically to ‘enforce his
HANSEN V. GROUP HEALTH COOPERATIVE 11
rights’ under the plan, or to clarify any of his rights to future
benefits.” Id. “Any dispute over the precise terms of the
plan is resolved by a court under a de novo review standard,
unless the terms of the plan ‘giv[e] the administrator or
fiduciary discretionary authority to determine eligibility for
benefits or to construe the terms of the plan.’” Id. (citation
omitted).
In Davila, the Supreme Court faced the question whether
ERISA section 502(a)(1)(B) completely preempts suits by
individuals against their health maintenance organizations
for “alleged failures to exercise ordinary care in the handling
of coverage decisions, in violation of a duty imposed by the
Texas Health Care Liability Act (THCLA).” Id. at 204.
THCLA imposed a duty on managed care entities to
“exercise ordinary care when making health care treatment
decisions.” Id. at 212 (quoting Tex. Civ. Prac. & Rem. Code
§ 88.002(a)). But that duty created “no obligation . . . to
provide to an insured or enrollee treatment which is not
covered by the health care plan of the entity.” Id. (quoting
Tex. Civ. Prac. & Rem. Code § 88.002(d)). The plaintiffs in
that case brought suit under THCLA solely to remedy the
denial of benefits under their ERISA-regulated benefit plans.
Id. at 211. As a result, the Supreme Court concluded that the
plaintiffs could have sought reimbursement for the desired
treatment through a section 502(a)(1)(B) action, id., and that
their claims “derive[d] entirely from the particular rights and
obligations established by the benefit plans,” id. at 213. The
Court held that this state-law cause of action fell “within the
scope of,” and was thus completely preempted by, ERISA
section 502(a)(1)(B). Id. at 214 (quoting Metro. Life,
481 U.S. at 66).
Davila sets forth a two-prong test for determining
whether a state-law claim is completely preempted by
12 HANSEN V. GROUP HEALTH COOPERATIVE
ERISA’s civil enforcement provision. Under that test, a
state-law cause of action is completely preempted if (1) the
plaintiff, “at some point in time, could have brought [the]
claim under ERISA § 502(a)(1)(B),” and (2) “there is no
other independent legal duty that is implicated by [the]
defendant’s actions.” Id. at 210. We note that this test from
Davila is conjunctive, and both elements need to be met to
show complete preemption. To show removal jurisdiction
on the basis of complete preemption, a defendant must cite
to the complaint, the state statute on which the claim is
based, and the plan documents. Id. at 211.
III
The district court concluded that both prongs of the
Davila test were met here. We review de novo this
conclusion because it goes to the court’s subject matter
jurisdiction. Marin Gen. Hosp. v. Modesto & Empire
Traction Co., 581 F.3d 941, 944 (9th Cir. 2009).
We need not decide if Davila’s first prong is met,
because federal court jurisdiction is lacking if either of these
interrelated prongs is not satisfied, and Davila’s second
prong, in our view, is readily shown to be unmet. See id. at
947.
The controlling question for us under Davila is whether
a claim relies on the violation of a legal duty that arises
independently of the plaintiff’s, or their assignor’s, ERISA
plan. See 542 U.S. at 210. “If there is some other
independent legal duty beyond that imposed by an ERISA
plan, a claim based on that duty is not completely preempted
under § 502(a)(1)(B).” Marin Gen. Hosp., 581 F.3d at 949.
There is no dispute that the Providers’ claim for
wrongfully licensing allegedly biased mental health
HANSEN V. GROUP HEALTH COOPERATIVE 13
coverage guidelines is based on an independent duty to
refrain from engaging in unfair and deceptive business
practices. See Wash. Rev. Code § 19.86.020.
The first claim at issue rests on the allegation that GHC
uses its treatment guidelines to avoid complying with
Washington’s Mental Health Parity Act. That statute
generally requires health benefit plans to treat medical
services and “medically necessary” mental health services
alike. See id. § 48.44.341(1)–(2).
According to GHC, assessing whether a health insurance
company violates this duty requires interpreting how the
patient-assignors’ benefit plans define the term “medically
necessary.” That is incorrect; the statutory duty exists apart
from a plan’s defined terms, even if a plan happens to use
the same language. And while a plan may define “medically
necessary” differently from the Washington statute, that has
no bearing on the contours of the statutory duty.
GHC also contends that the statutory duty is not
independent because it relies on the existence of a health
benefit plan in the first place. The relevant inquiry, however,
focuses on the origin of the duty, not its relationship with
health plans. See Marin Gen. Hosp., 581 F.3d at 949. The
state laws at issue in Davila, for example, did not impose an
independent legal duty to provide benefits because they
excluded treatments not covered by a plan’s terms. 542 U.S.
at 212–13. As a result, the denials of treatment in that case
turned on the terms of the specific health plans, not the
requirements of state law. Id. By contrast, Washington’s
Mental Health Parity Act does impose an independent
coverage requirement, mandating that health plans for
medical and surgical care cover mental health treatment as
well. See O.S.T. ex rel. G.T. v. BlueShield, 335 P.3d 416,
420 (Wash. 2014). If the terms of a plan exclude this
14 HANSEN V. GROUP HEALTH COOPERATIVE
treatment, they may violate the state law. See id. This
statutory duty is unlike those in Davila because it does not
piggyback on, and is thus independent of, the specific rights
“established by the benefit plans.” 542 U.S. at 213. In
Davila, the state law applied only when a benefit plan
covered treatment, while here the state law applies to how
all benefit plans cover mental health treatment.
The next claim at issue is the Providers’ contention that
GHC unfairly competes in the marketplace by discouraging
its patients from seeking treatment by rival practitioners.
GHC argues that it has no duty to “encourage” patients
to seek care elsewhere, but that misses the point. Any duty
for GHC to refrain from unfairly harming its competitors
arises under state law, not under the terms of an ERISA plan.
Indeed, because this claim concerns GHC’s actions as an
employer of psychotherapists, this claim could exist whether
or not GHC administered any health benefit plans at all, let
alone any ERISA plans. So this claim is based on an
independent legal duty too.
Accordingly, the Providers’ three claims for unfair and
deceptive business practices are based on independent duties
beyond those imposed by three of their patients’ ERISA
plans. These claims do not satisfy the second prong of
Davila, and hence this case was improperly removed to
federal court.
IV
Our federalism requires that federal courts refrain from
adjudicating state-law claims between non-diverse parties
unless a purported state-law claim is really a poorly
disguised federal claim. But here, the Providers’ claims for
unfair and deceptive business practices are not federal claims
HANSEN V. GROUP HEALTH COOPERATIVE 15
improperly cloaked in the language of state law. Those
claims are basically that, as mental health professionals, the
Providers are unfairly being cut out of the market of
suppliers of mental health services by GHC’s unfair and
deceptive use of treatment guidelines. To state their claims
under Washington law, the Providers have alleged “(1) an
unfair or deceptive act or practice, (2) occurring in trade or
commerce, (3) affecting the public interest, (4) injury to a
person’s business or property, and (5) causation.” Panag v.
Farmers Ins. Co. of Wash., 204 P.3d 885, 889 (Wash. 2009).
Business and property injuries of this sort are “not of central
concern” to ERISA, but instead pose important public policy
issues under state law that are best decided by a state court.
Franchise Tax Bd., 463 U.S. at 25–26. We express no
opinion whether these state-law claims are valid as pleaded,
but rather conclude only that these claims do not mirror a
suit for benefits due under an ERISA plan.
We hold that the Providers’ claims do not fall within the
scope of, and so are not completely preempted by, ERISA
section 502(a)(1)(B). We reverse the district court’s
exercise of subject matter jurisdiction in dismissing these
claims, and we remand with instructions for the district court
to return the entirety of this action to the Washington
superior court.
REVERSED AND REMANDED.