Opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

SURGERY CENTER LLC NOLA CIVIL ACTION

VERSUS NO: 25-1084

LOUISIANA HEALTH SERVICE & SECTION: T (2)

INDEMNITY COMPANY D/B/A BLUE

CROSS/BLUE SHIELD OF

LOUISIANA, BLUE CROSS & BLUE

SHIELD OF LOUISIANA, INC., and

HMO LOUISIANA, INC.

ORDER AND REASONS

Before the Court is Plaintiff’s Motion to Remand (R. Doc. 9). Having reviewed the record,

the briefs, and the applicable law, the Court will DENY Plaintiff’s Motion for the following

reasons.

I.BACKGROUND

This case concerns a fee dispute between Plaintiff, Surgery Center LLC NOLA, and three

health-insurance-entity defendants: (1) Louisiana Health Service & Indemnity Company d/b/a

Blue Cross/Blue Shield (“LHSI”), (2) Blue Cross & Blue Shield of Louisiana, Inc. (“BCBSLA”),

and (3) HMO Louisiana, Inc. (“HMO”) (collectively, “Defendants”). R. Doc. 1-1, pp. 1-11.

Plaintiff seeks to recover payments from Defendants for medical services provided to patients

insured by Defendants based on alleged wrongful conduct by Defendants that induced Plaintiff to

render treatment to Defendants’ insureds. R. Doc. 9-1, p. 3.

Specifically, Plaintiff provided medical care to “customers/insureds of BCBSLA” for

several years. R. Doc. 10, p. 9 (citing R. Doc. 1-1, p. 2). As a provider outside of BCBSLA’s

network, Plaintiff would contact BCBSLA “to verify that services are authorized to be performed

on an out-of-network basis under the applicable plan or policy. R. Doc. 10, p. 9 (citing R. Doc. 1-

1, pp. 2-3). After verification, Plaintiff would provide the approved care and submit a bill to

BCBSLA for payment of services. R. Doc. 10, p. 9 (citing R. Doc. 1-1, p. 3). While Plaintiff seeks

the full amount due for each of these bills, R. Doc. 1-1, pp. 3-4, BCBSLA contends that it only

owes “the allowable reimbursement under the plan or policy of the ‘customer/insured’ of

BCBSLA,” R. Doc. 10, pp. 9-10.

Plaintiff filed its original state-court Petition against Defendants in the 24th Judicial District

Court for the Parish of Jefferson on April 7, 2025, advancing legal theories of breach of contract,

detrimental reliance, fraud, and negligent misrepresentation. R. Doc. 1-1, p. 1. Defendants

removed the action to this Court on May 30, 2025, citing the following bases for removal: (1) the

Federal Officer Removal Statute, 28 U.S.C. § 1442(a)(1), because Plaintiff’s claims involve

BCBSLA’s administration of plans governed by the Federal Employees Health Benefits Act

(“FEHBA”), 5 U.S.C. § 8901 et seq., and subject to directives from the United States Office of

Personnel Management (“OPM”), and (2) federal question subject matter jurisdiction pursuant to

28 U.S.C. § 1331 because the controversy arises under both the FEHBA and the Employee

Retirement Income Security Act of 1974 (“ERISA”). R. Doc. 1, pp. 1-2.

Plaintiff subsequently filed the instant Motion to Remand to State Court, arguing that (1)

the Federal Officer Removal Statute does not apply and (2) this Court is without federal-question

jurisdiction. R. Doc. 9-1, p. 2. Specifically, Plaintiff contends that rather than claiming coverage

benefits on behalf of its patients or seeking to enforce any federal right, it seeks enforcement of

legal rights that it independently holds against defendants. Id. Plaintiff additionally requests an

award of just costs, actual expenses, and attorney’s fees under 28 U.S.C. § 1447(c). Id. at pp. 14-

15. Defendants filed a response memorandum in opposition to the Motion. R. Doc. 10. Thereafter,

Plaintiff filed its reply in support, R. Doc. 18, and Defendants filed a sur-reply, R. Doc. 21, after

seeking leave of court to do so, R. Docs. 19, 20. The matter is now submitted to the Court.

II. LAW AND ANALYSIS

Federal courts are courts of limited jurisdiction, possessing “only that power authorized by

Constitution and statute, which is not to be expanded by judicial decree.” Kokkonen v. Guardian

Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted). While federal courts typically

“must presume that a suit lies outside this limited jurisdiction, and the burden of establishing

federal jurisdiction rests on the party seeking the federal forum[,]” they must resolve factual

disputes in favor of retaining federal jurisdiction when evaluating removal under the federal officer

removal statute. Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001); Ragusa v.

Louisiana Ins. Guaranty Ass’n, 573 F. Supp. 3d 1046, 1051 (E.D. La. Nov. 23, 2021) (citing

Schnexnayder v. Huntington Ingalls, Inc., No. 20-775, 2020 WL 3970159, at * 3 (E.D. La. July

14, 2020) (Milazzo, J.); Louisiana v. Sparks, 978 F.2d 226, 232 (5th Cir. 1992)).

28 U.S.C. § 1442(a)(1), the federal officer removal statute, authorizes removal of a civil

action commenced in a state court against or directed to “[t]he United States or any agency thereof

or any officer (or any person acting under that officer) of the United States or of any agency thereof,

in an official or individual capacity, for or relating to any act under color of such office.” In the

words of the Fifth Circuit, the statute “allows federal officers, and private entities assisting them,

to remove cases to federal court that ordinarily would not be removable.” Martin v. LCMC Health

Holdings, Inc., 101 F.4th 410, 414 (5th Cir. 2024) (citing Latiolais v. Huntington Ingalls, Inc., 951

F.3d 286, 291 (5th Cir. 2020) (en banc)). Unlike the general removal statute, the federal officer

removal statute includes cases “that ordinary federal question removal would not reach[.]”

Latiolais, 951 F.3d at 290. “Even in situations where the parties are not diverse and no federal

question is raised in the complaint, § 1442 allows a case to be removed if the federal actor asserts

a federal defense.” Martin, 101 F.4th at 414 (citing Latiolais, 951 F.3d at 296). To establish

jurisdiction under the statute, a defendant must show: (1) it has asserted a colorable defense, (2) it

is a ‘person’ within the meaning of the statute, (3) it has acted pursuant to a federal officer’s

directions, and (4) the charged conduct is connected or associated with an act pursuant to a federal

officer’s directions. Latiolais, 951 F.3d at 296 (citing Winters v. Diamond Shamrock Chem. Co.,

149 F.3d 387, 396-400 (5th Cir. 1998)). While “[t]he absence of any element will defeat removal,

Martin, 101 F.4th at 414, “the federal officer removal statute is to be broadly construed in favor

of a federal forum,” Williams v. Lockheed Martin Corp., 990 F.3d 852, 859 (5th Cir. 2021); see

also Latiolais, 951 F.3d at 290 (noting that the question whether to remand cases removed under

the statute is weighed “without a thumb on the remand side of the scale.”).

Here, the Court finds that Defendants are entitled to removal under the federal officer

removal statute. First, Defendants have asserted at least one colorable defense. A federal defense

is colorable so long as it is not “wholly insubstantial or frivolous.” Latiolais, 951 F.3d at 297

(citation omitted). While neither the Fifth Circuit nor the Supreme Court has defined the term

“colorable” in this context, the Fifth Circuit has “made clear that a defendant’s federal defense

need not prevail at the merits stage to warrant removal—it need only be material and non-

frivolous.”1 St. Charles Surgical Hospital, L.L.C. v. Louisiana Health Serv. & Indem. Co. (St.

Charles I), 935 F.3d 352, 357 (5th Cir. 2019). Additionally, if a defendant asserts multiple possible

federal defenses, “only one needs to be colorable for [defendant] to succeed on this factor.” See

1 The Fifth Circuit has reasoned that “[S]ection 1442 does not require the federal official or person acting under him

to win his case before he can have it removed.” Latiolais, 951 F.3d at 296 (internal quotations and citations omitted).

id. Here, Defendants have asserted the following defenses: (1) Plaintiff’s state law claims are

preempted by FEHBA’s express preemption provision, 5 U.S.C. § 8902(m)(1), R. Doc. 1, p. 12;

(2) sovereign immunity applies “because any funds that would be used to pay the health benefits

at issue come directly from the federal Treasury,”2 id. at p. 13; (3) Plaintiff’s state law claims “are

displaced by federal common law, which governs the federal contract at the heart of these claims,”

id. at p. 14 (citing Helfrich v. Blue Cross & Blue Shield Ass’n, 804 F.3d 1090, 1095-1104 (10th

Cir. 2015); Jacks v. Meridian Res. Co., 701 F.3d 1224, 1235 (8th Cir. 2012)), and (4) the

administrative scheme established by OPM requires Plaintiff “to exhaust its administrative

remedies before commencing litigation,” id. (citing Bryant v. Blue Cross Blue Shield –Federal,

2024 WL 2022288, at *2-3, 5 (S.D. Miss. May 7, 2024).

Plaintiff contends that Defendants cannot satisfy this element because its state law petition

“expressly waives any and all federal law claims they may have against Defendants,” including

any claim for benefits under FEHBA or ERISA, and “limit[s] its claims to exclusively the state

law breach of contract claim and state law tort claims that flow therefrom.” R. Doc. 9-1, pp. 4-5,

12-14. In Plaintiff’s view, because it is not seeking plan benefits or otherwise invoking federal

law, Defendants’ asserted federal defenses are irrelevant.

The Court disagrees. At this early stage, Defendants need not prove that their federal

defenses will succeed on the merits; instead, they only need to show that at least one asserted

defense is material and non-frivolous to satisfy this element of establishing jurisdiction under the

federal officer removal statute. See, e.g., St. Charles I, 935 F.3d at 357; Latiolais, 951 F.3d at 296-

2 In support of their sovereign immunity argument, Defendants cite multiple district court opinions dismissing state

law claims against a Service Benefit Plan administrator on sovereign immunity grounds, including one from this

Court: Ctr. for Reconstructive Breast Surgery, LLC v. Blue Cross Blue Shield of La., 2014 WL 4930443 (E.D. La.

Sept. 30, 2014). R. Doc. 1, p. 13.

98 (holding that asserted federal defense to plaintiff’s state law claims for negligent failure to warn

about asbestos hazards and provide safety equipment was “colorable” where defendants offered

evidence that elements of defense were satisfied). That requirement is satisfied here. In St. Charles

I, the Fifth Circuit held that BCBS has raised a colorable federal defense by asserting FEHBA

preemption, explaining that the preemption clause “displace[es] state law on issues relating to

‘coverage or benefits’ afforded by health-care plans.” St. Charles I, 935 F.3d at 357-58 (quoting

Empire Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 683 (2006)). This provision states,

“The terms of any contract under this chapter which relate to the nature, provision, or extent of

coverage or benefits (including payments with respect to benefits) shall supersede and preempt any

State or local law, or any regulation issued thereunder, which relates to health insurance plans.” 5

U.S.C. § 8902(m)(1) (emphasis added).

Here, Defendants assert the same defense. Defendants contend that at least some of

Plaintiff’s claims concern treatment provided to beneficiaries covered through the Service Benefit

Plan3 and therefore arise from BSBSLA’s administration of FEHBA-governed plans. R. Doc. 1,

pp. 1-2, 6-14. Defendants further contend that Plaintiff’s claims, although styled as state law

contract and tort claims, seek to impose liability based on representations allegedly made during

the authorization and reimbursement process for out-of-network services rendered under those

plans. Id. at pp. 4-7, 12. In other words, Defendants’ argument is that Plaintiff’s claims clearly

implicate “payments with respect to benefits” under FEHBA-governed plans and therefore fall

within the broad scope of the FEHBA’s preemption provision. Given the Fifth Circuit’s holding

in St. Charles I and Defendants’ allegations that Plaintiff’s suit includes claims involving FEHBA

beneficiaries, the Court cannot find that Defendants’ FEHBA premption defense is wholly

3 The Service Benefit Plan is also referred to as the Federal Employee Program (“FEP”). R. Doc. 10, p. 7.

insubstantial or frivolous. Accordingly, Defendants have satisfied the colorable defense

requirement of the analysis.

Because Defendants have asserted at least one colorable federal defense, the Court need

not determine whether Defendants’ additional defenses of sovereign immunity, federal common

law displacement, and exhaustion requirements would independently satisfy this element.

Second, there is no serious dispute as to whether Defendants are “persons” under the

meaning of the federal officer removal statute. Defendants note in their Notice of Removal that

the United States Code states that “unless the context indicates otherwise . . . the words ‘person’

and ‘whoever’ include corporations, companies, associations firms, partnerships, societies, and

joint stock companies, as well as individuals.” R. Doc. 1, pp. 14-15 (citing 1 U.S.C. § 1). They

argue that “[b]ecause the context of the federal officer removal statute does not command a

different result, the Fifth Circuit has held that corporate entities like BCBSLA qualify as ‘persons’

under [the statute].” Id. at p. 14 (citing International Primate v. Adm’rs of Tulane Educ. Fund, 22

F.3d 1094 (5th Cir. 1994) (affirming removal and holding Tulane University is “a person” within

meaning of federal officer removal statute)). A review of cases from other circuits demonstrates

that Defendants are correct in their assertion that courts routinely find that suits against entities

administering the Service Benefit Plan are removable by the Plan’s administrators under the

federal officer removal statute. See, e.g., Ray v. Tabriz, 110 F.4th 949, 956 (7th Cir. 2024) (“There

is no indication that the definition of person in § 1442 excludes corporations, and the plaintiffs do

not suggest otherwise.”); Goncalves v. Rady Children’s Hosp. San Diego, 865 F.3d 1237, 1224

(9th Cir. 2017) (holding that corporate administrator of FEHBA insurance plan was “person”

within meaning of statute); Jacks v. Meridian Res. Co., 701 F.3d 1224, 1230 n.3 (8th Cir. 2012)

(“[T]he ‘person’ contemplated by the federal officer removal statute includes corporations.”).

Plaintiff does not argue that Defendants are not “persons” within the meaning of the federal officer

removal statute. See R. Doc. 9-1. The Court finds that the element is satisfied because there is no

contrary contextual indication that entities such as BCBSLA do not qualify as “persons” within

the meaning of the statute, and the Fifth Circuit has treated similar entities—including BCBSLA

itself—as persons for purposes of federal officer removal. See, e.g., St. Charles I, 935 F.3d at 355

(“Blue Cross is a ‘person’ under the federal officer removal statute.”).

Third, the Court finds that Defendants satisfy the element of acting “under” or “pursuant

to” a federal officer’s directions. “To satisfy the ‘pursuant to’ requirement, a private actor must go

beyond mere compliance with the law and instead help the government ‘fulfill other basic

governmental tasks.’” Martin, 101 F.4th at 414-15 (quoting Watson v. Philip Morris Cos., Inc.,

551 U.S. 142, 153 (2007)). The Fifth Circuit has clarified that “acting pursuant to a federal officer’s

directions means that the relationship between the government and the private entity extends

beyond a regulator/regulated relationship and will typically involve a contractual agreement or

agency relationship.” Id. at 415 (citing Watson, 551 U.S. at 156-57). Courts have upheld removal

under the statute in cases that “involve relationships where the government has delegated legal

authority to the private entity.” Id.; see also Latiolais, 951 F.3d at 289 (where former employee

sued his employer, a federal contractor, for injuries sustained while performing work for the

Navy); St. Charles Surgical Hospital v. La. Health Serv. & Indem. Co. (St. Charles II), 990 F.3d

447, 452 (5th Cir. 2021) (where insurance company contracted with federal government and

government exercised a strong level of guidance and control over company); Butler v. Coast

Electric Power Ass’n, 926 F.3d 190, 201 (5th Cir. 2019) (where private-entity defendants were

“instrumentalities” of federal government that acted under federal agency’s direction with a shared

goal). If the defendant “cannot show that its relationship with the government involved anything

more than regulation,” then the “pursuant to” element is not satisfied. See, e.g., Martin, 101 F.4th

at 415. Stated differently, the relationship must not be “too attenuated to show any delegation of

legal authority.” Id. at 416. Additionally, the Fifth Circuit has recently stated,

We construe the “acting under” requirement broadly. A removing defendant need

not prove that its conduct was precisely dictated by a federal officer’s directive.

Instead, the “acting under” inquiry examines the relationship between the removing

party and the relevant federal officer. A relationship is sufficiently close if the

federal officer exercises subjection, guidance, or control over the removing party

and that party is assisting or helping carry out a federal officer’s duties, as opposed

to mere complying with the law. When a contractor helps the Government perform

a job that, in the absence of a contract, the Government itself would have had to

perform, and that relationship involves detailed regulation, monitoring, or

supervision, the private contractor is “acting under” a federal officer’s direction.

Caris MPI, Inc. v. UnitedHealthcare, Inc., 108 F.4th 340, 347-48 (5th Cir. 2024) (emphasis in

original) (internal ellipses, quotation marks, and citations omitted).

Here, Defendants argue that they acted under OPM’s directions in administering FEHBA-

governed plans. R. Doc. 1, pp. 7-12; R. Doc. 10, pp. 10-18. Specifically, Defendants contend that

the Service Benefit Plan is created by contract between OPM and the Blue Cross and Blue Shield

Association, under which BCBSLA provides claim administration services “pursuant to the

directives of Congress set forth in the FEHBA and the regulations and contractual obligations

imposed by OPM.”4 R. Doc. 10, pp. 16-17. Defendants further contend that OPM’s control over

FEHBA-governed plans is sufficiently extensive to satisfy the “acting under” requirement because

its conduct in authorizing medical services and reimbursing medical providers who deliver

services to members of the Service Benefit Plan “represents conduct OPM would have had to

undertake itself absent its contract with the BCBSLA.” Id. at p. 17.

In response, Plaintiff argues that “Courts do not consider a group health insurer to be acting

4 The Court notes that Defendants provide evidence to this effect with copies of relevant Service Benefit Plan / FEP

documentation. See, e.g., R. Doc. 10-6 (providing a detailed overview of the plan).

under federal authority when it makes alleged misrepresentations with regard to reimbursement.”

R. Doc. 9-1, p. 13 (citing Edwards v. Blue Cross/Blue Shield of Tex., No. 05-0144, 2005 WL

1240577 (N.D. Tex. May 25, 2005); Transitional Hosps. Corp. of La. v. Louisiana Health Serv.,

No. CIV.A.02-354, 2002 WL 1303121, at *3 (E.D. La. June 12, 2002)). Plaintiff further contends

that this case does not arise out of procedures dictated by OPM, but instead from Defendants’

alleged representations and misrepresentations to Plaintiff regarding authorization and payment

for out-of-network services. R. Doc. 9-1, pp. 2-5, 12-16; R. Doc. 18, pp. 1-5. Plaintiff additionally

emphasizes that it seeks to enforce only independent state law claims and has expressly waived

any federal theory of recovery. R. Doc. 9-1, pp. 4-5; R. Doc. 18, pp. 2-5.

The Court is not persuaded by Plaintiff’s attempt to characterize the case so narrowly. In

St. Charles I, the Fifth Circuit analyzed the relationship between OPM and BCBSLA, finding “that

OPM enjoys a strong level of guidance and control over [BCBSLA]” and, therefore, BCBSLA

satisfied the “acting under” requirement. St. Charles I, 935 F.3d at 356. Specifically, the court

noted that BCBSLA was at all times “subject to OPM oversight, uniquely operates within the

United States Treasury, submits to OPM’s regulatory requirements, and ultimately answers to

federal officers” and noted that other circuits have found that such facts satisfy the “arising under”

requirement.5 Id. (quoting Jacks, 701 F.3d at 1234). Additionally, the Fifth Circuit expressly

vacated a district court decision to remand a case on the basis of Transitional Hospitals

Corporation of Louisiana, a case relied upon by Plaintiff in support of remand, holding that the

district court erred in applying the “arising under” test too narrowly. See St. Charles II, 990 F.3d

447, 453-55.

5 In a case referenced by the Fifth Circuit in St. Charles I, the Eighth Circuit states, “To deny removal solely because

the carrier is allowed discretion within a minute area contemplated by the governmental Plan defies the overall purpose

and thrust of the federal officer removal statute generally.” Jacks, 701 F.3d at 1234.

Here, Defendants have alleged that at least some of Plaintiff’s claims involve treatment

rendered to FEHBA beneficiaries and therefore arise from BCBSLA’s administration of FEHBA-

governed plans. R. Doc. 1, pp. 6-10. Plaintiff’s allegation that Defendants’ conduct constitutes

misrepresentations to the provider, as opposed to the mere following of OPM-mandated

procedures, does not defeat this element at the removal state. Under St. Charles II, the relevant

question is not whether OPM directed the exact alleged representation, but whether the challenged

conduct occurred in the course of BCBSLA’s administration of FEHBA-governed claims under

OPM supervision and control. St. Charles II, 990 F.3d at 454-55. On the present record, the Court

finds that Defendants have made such a showing and therefore satisfy the “acting under”

requirement.

Fourth, Defendants have demonstrated that the conduct challenged by Plaintiff is

connected or associated with acts taken pursuant to a federal officer’s directions. To satisfy this

final element, a defendant must demonstrate that the conduct is “connected or associated with” an

act pursuant to a federal officer’s directions.6 Latiolais, 951 F.3d at 296; St. Charles II, 990 F.3d

at 454. Defendants argue that this element is satisfied because Plaintiff’s claims arise from

authorization, coverage verification, and payment representations allegedly made in connection

with treatment rendered to Defendants’ insureds, including beneficiaries covered through FEHBA-

governed plans. R. Doc. 1, pp. 4-7; R. Doc. 10, pp. 13-18. In Defendants’ view, because these

alleged acts occurred in the course of BCBSLA’s administration of FEHBA-governed claims, the

conduct challenged by Plaintiff is at the very least “connected or associated with” the acts taken

6 The Fifth Circuit has “noted that when it amended the statute in 2011, ‘Congress broadened federal officer removal

to actions, not just causally connected, but alternatively connected or associated, with acts under color of federal

office.’” St. Charles II, 990 F.3d at 452 (quoting Latiolais, 951 F.3d at 292). “[I]nstead of considering whether there

is a ‘direct causal nexus’ between the removing defendant’s actions and a federal officer’s instruction, the proper

inquiry centers on whether that defendant’s actions ‘related to’ a federal objective.” Id. (quoting Latiolais, 951 F.3d

at 291, 296).

under OPM’s supervision and direction. Id. Plaintiff, on the other hand, maintains that its claims

are based only on Defendants’ alleged misrepresentations to Plaintiff and not on any federally

directed conduct. R. Doc. 9-1, pp. 2-5, 12-16; R. Doc. 18, pp. 1-5.

The Court finds that Defendants have satisfied this element. As explained above,

Defendants have adequately shown that at least some of Plaintiff’s claims involve treatment

rendered to FEHBA beneficiaries and therefore arise from BCBSLA’s administration of FEHBA-

governed plans. Under Latiolais and St. Charles II, that showing is enough to satisfy this element

because the relevant inquiry is whether the challenged conduct is connected or associated with the

administration of FEHBA-governed claims under OPM’s supervision and direction. See Latiolais,

951 F.3d at 296; St. Charles II, 990 F.3d at 454-55. Because Plaintiff’s claims arise from

preauthorization and payment-related communications allegedly made in the course of that

administration, the Court finds that the fourth element is met.

Accordingly, the Court concludes that Defendants have satisfied each of the four elements

required to establish jurisdiction under the federal officer removal statute. Furthermore, the Court

finds that Plaintiff’s disclaimers and waivers do not compel remand in this instance. As mentioned

in the Court’s analysis of the federal officer removal elements, Plaintiff argues that its petition

“expressly waives any and all federal law claims they may have against Defendants,” including

any claim for benefits under FEHBA or ERISA, and “limit[s] its claims to exclusively the state

law breach of contract claim and state law tort claims that flow therefrom.” R. Doc. 9-1, pp. 4-5,

12-14. Plaintiff avers that these disclaimers are binding and dispositive because they foreclose any

contention that this action involves federally governed claims or conduct undertaken under federal

authority. R. Doc. 18, pp. 2-5

The Court disagrees. Although courts may in some circumstances give effect to express

disclaimers, the disclaimers here do not segregate federal claims from nonfederal claims with

sufficient factual precision to defeat removal under § 1442(a)(1). Plaintiff’s petition does not

identify which patients, claims, or transactions are excluded from this suit, nor does it carve out

claims by patient, time period, or another objective factual boundary. Instead, Plaintiff seeks relief

based on a broad course of conduct spanning several years and involving an unidentified group of

patients. Meanwhile, Defendants allege that Plaintiff presented BCBSLA with a pre-Petition

demand “which expressly demanded payment for these specific (FEP and ERISA) claims.” R.

Doc. 21, p. 2 (citing R. Docs. 10-1, 10-2, 10-3). Because the petition does not distinguish federal

claims from nonfederal claims by objective factual criteria, the Court cannot determine from the

face of the pleading that all federally governed claims have been excluded. Thus, the Court agrees

with Defendants’ contention that the waivers contained in Plaintiff’s Petition are

“indistinguishable from the categorical waivers/disclaimers that federal courts have repeatedly

held insufficient to defeat ‘federal officer’ removal.”7 Id. at p. 3. (citations omitted). On this record,

the Court cannot conclude that Plaintiff has successfully excised all federally governed claims

from the case simply by categorically disclaiming any federal theory of recovery.

The Court is also unpersuaded by Plaintiff’s argument that Judge Morgan’s July 21, 2021,

order in the later St. Charles matter compels a different result. See R. Doc. 9, p. 10; R. Doc. 18, p.

5 (citing St. Charles Surgical Hosp., LLC v. Louisiana Health Serv. & Indem. Co. (St. Charles III),

No. CV 19-13497, 2021 WL 3077043, at *4 (E.D. La. July 21, 2021) (addressing issues on remand

7 Additionally, Defendants cite Fifth Circuit authority standing for the proposition that waivers of “claims upon which

federal jurisdiction may be founded must be ‘binding and irrevocable’ so as to establish with a ‘legal certainty’ that

those claims are excluded from the scope of the state court petition.” R. Doc. 10, pp. 20-21 (citing De Aguilar v.

Boeing Co., 47 F.3d 1404, 1412 (5th Cir. 1995); Cat 5 Pro LLC v. State Farm Fire & Casualty Co., 2024 WL 58180,

*2 (W.D. La. Jan. 4, 2024); Legendre v. Anco Insulations, Inc., 2012 WL 2064537, *4 (M.D. La. May 14, 2012, report

and recommendation adopted, 2012 WL 2064533 (M.D. La. June 7, 2012); St. Augustine High School, Inc. v.

Applewhite, 2011 WL 3423942, *3 (E.D. La. August 5, 2011)).

from St. Charles II)). In that order, the Court found that Plaintiff’s waivers of federally-governed

claims were “valid and enforceable” and therefore did not address whether BCBSLA “acted under”

OPM. St. Charles III, 2021 WL 3077043, at *4. However, despite Plaintiff’s contention that this

Court should reach a similar conclusion because its waivers and disclaimers “are identical to the

ones Judge Morgan ruled upon,” R. Doc. 18, p. 5, the Court’s finding in that case was based not

only on the language of the waivers and disclaimers but also the presence of additional support in

the record that guaranteed the validity and enforceability of the waivers, St. Charles III, 2021 WL

3077043, at *4. There, the record included formal stipulations, “signed by Plaintiffs’

representatives under penalty of perjury,” clarifying that “Plaintiffs cannot use FEHBA-governed

and ERISA-governed claims and/or plans as part of their case in any way” and prohibiting

“Plaintiffs from seeking or producing discovery related to FEHBA-governed and ERISA-governed

claims and/or plans.” Id. No such stipulations have been filed in this case. By contrast, Plaintiff

offers only the petition’s categorical disclaimers and has not identified which specific claims are

excluded. Additionally, Defendants here allege that Plaintiff’s own pre-suit demand materials

included claims involving FEHBA beneficiaries. R. Doc. 1, pp. 6-7.

Stated differently, the waivers in St. Charles III were reinforced by factual findings and

formal stipulations, and no such reinforcement of the waivers exists in this case. Even assuming

that Plaintiff’s waivers are sincere, they do not alter the Court’s conclusion that, on the present

record, Defendants have shown that at least some of the claims encompassed by this suit involve

BCBSLA’s administration of FEHBA-governed plans. Accordingly, Plaintiff’s disclaimers and

waivers do not require remand of this case.

Finally, having concluded that removal was proper under the federal officer removal

statute, 28 U.S.C. § 1442(a)(1), the Court need not address the parties’ remaining arguments

regarding alternative grounds for federal jurisdiction.

Accordingly,

IT IS ORDERED that Plaintiff's Motion to Remand (R. Doc. 9) is DENIED.

New Orleans, Louisiana, this 31st day of March 2026.

\- GERARD GUIDRY

UNITED STATES DISTRICT JUDGE

15