Bruce F. Botsford v. Blue Cross and Blue Shield of Montana, Inc. Blue Cross and Blue Shield Association

319 F.3d 1078

Bruce F. BOTSFORD, Plaintiff-Appellee,
v.
BLUE CROSS AND BLUE SHIELD OF MONTANA, INC.; Blue Cross and Blue Shield Association, Defendants-Appellants.

No. 01-36019.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 7, 2002.

Filed December 23, 2002.

Amended February 10, 2003.

Anthony F. Shelley, Miller & Chevalier, Chartered, Washington, D.C., for the appellants.

Michael J. Lilly, Berg, Lilly & Tollefsen, P.C., Bozeman, Montana, for the appellee.

Appeal from the United States District Court for the District of Montana; Donald W. Molloy, Chief District Judge, Presiding D.C. No. CV-00-00119-DWM.

Before TROTT, NELSON, and THOMAS, Circuit Judges.

ORDER

1

The Opinion filed December 23, 2002, slip op. 1, is amended as follows:

2

At slip op. page 10, second paragraph, line 8, after the sentence "Thus, Congress wished to create a cost-efficient, comprehensive form of medical insurance for federal employees." add the following footnote:

3

As a result, FEHBA clearly "relates to the business of insurance," triggering the express statutory exception to the states' traditional right to regulate insurance under Section 2(b) of the McCarran-Ferguson Act. See 15 U.S.C. § 1012(b); see also Humana, Inc. v. Forsyth, 525 U.S. 299, 306, 119 S.Ct. 710, 142 L.Ed.2d 753 (1999) (noting that, under this provision, "when Congress enacts a law specifically relating to the business of insurance, that law controls").

4

With these amendments, the panel has voted unanimously to deny the petition for panel rehearing and the petition for rehearing en banc.

5

The full court has been advised of the petition for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

6

The petition for panel rehearing and the petition for rehearing en banc are DENIED.