State of Hawai'i, Ex. Rel. Anne E. Lopez, Attorney General v. CaremarkPCS Health, L.L.C. et al

UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII
STATE OF HAWAI'I, EX REL. ANNE
E. LOPEZ, ATTORNEY GENERAL;
Plaintiff,
vs.
CAREMARKPCS HEALTH, L.L.C.,
EXPRESS SCRIPTS, INC., and
OPTUMRX, INC.,
Defendants.
CIV. NO. 23-00464 LEK-RT
ORDER DENYING PLAINTIFF’S MOTION TO REMAND
On November 29, 2023, Plaintiff State of Hawai`i, by
and through Anne E. Lopez, Attorney General (“the State”), filed
its Motion to Remand (“Motion”). [Dkt. no. 29.] On February 2,
2024, Defendant Express Scripts, Inc. (“Express Scripts”) and
Defendant Caremark Health, LLC (“Caremark”) filed their
respective memoranda in opposition (“Express Scripts Opposition”
and “Caremark Opposition”). [Dkt. nos. 72, 73.] Also on
February 2, 2023, Defendant OptumRx, Inc. (“OptumRx”) filed a
statement noting its opposition to the Motion. [Dkt. no. 74.]
The State filed its reply addressing the Express Scripts
Opposition and the Caremark Opposition on February 9, 2024.
[Dkt. no. 75.] This matter came on for hearing on February 23,
2024. The State’s Motion is hereby denied for the reasons set
forth below.
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BACKGROUND
The State filed its original Complaint in the State of
Hawai`i Circuit Court of the First Circuit (“state court”) on
October 4, 2023, and the State served the Complaint on Express
Scripts on October 19, 2023. See Notice of Removal of Civil
Action Under 28 U.S.C. §§ 1442(a)(1) and 1446, filed 11/17/23
(dkt. no. 1) (“Notice of Removal”), at ¶ 1; see also id.,
Declaration of C. Michael Heihre (“Heihre Removal Decl.”),
Exh. E (copies of filings in the state court) at PageID.730-74
(Complaint). The State filed its First Amended Complaint on
November 6, 2023 (“Amended Complaint”), and the State served the
Amended Complaint on Express Scripts on November 8, 2023. See
Notice of Removal at ¶ 2; see also Heihre Removal Decl., Exh. A
(Amended Complaint). Express Scripts removed the action based on
the federal officer removal statute, Title 28 United States Code
Section 1442(a)(1). See Notice of Removal at ¶¶ 16-18. Caremark
filed a Supplemental Notice of Removal on November 17, 2023.
[Dkt. no. 8.] Caremark also invoked federal officer removal.
[Id. at ¶ 4.] Caremark and Express Scripts will be referred to
collectively as “the Removing Defendants,” and Caremark, Express
Scripts and OptumRx will be referred to collectively as
“Defendants.”
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I. 	Allegations of the Amended Complaint
The State alleges that, “[f]rom 2014 to 2020,
prescription drug prices increased by 33%, outpacing inflation
and price increases for any other medical commodity or service,”
and making ‘life-saving medications unaffordable for many
Americans – particularly seniors.” [Amended Complaint at ¶¶ 34-
35.] “In 2020, it was estimated that high out-of-pocket costs
for drugs would cause 1.1 million premature deaths of seniors in
the Medicare program over the next decade, and lead to an
additional $177.4 billion in avoidable Medicare medical costs.”
[Id. at ¶ 37.]
The State cites insulin as an example and alleges:
In 1999, Humalog (insulin) was affordably priced
at $21. Twenty years later, the price had
increased by more than 1000% to $332. Due to
unprecedented pressure on [pharmacy benefit
managers (“PBMs”)] and insulin manufacturers,
insulin costs are finally starting to decrease.
For example, on April 3, 2019, Express Scripts
announced the launch of its Patient Assurance
Program, which Express Scripts claims will
“ensure eligible people with diabetes in
participating plans pay no more than $25 for a
30-day supply of insulin.” Unfortunately, PBMs
have not provided this same type of broad relief
for the high cost of drugs other than insulin.
Further, PBMs have not provided restitution for
the prior years’ worth of overpayments and their
promise to offer insulin at reduced prices is not
indefinite.
[Id. at ¶ 38 (footnotes omitted).]
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The State alleges that, although PBMs are
administrators hired by third-party payors for the benefit of
consumers, PBMs have developed a business model that maximizes
PBM profits through inflated prices for brand-name prescription
drugs. [Id. at ¶¶ 5-7.] PBMs “create[] drug formularies — a list
of prescription drugs covered by health plans tiered according
to consumers’ cost-share obligations (e.g., tier 1 drugs require
a $5 co-payment, tier 2 drugs require a $10 co-payment).” [Id.
at ¶ 5.] Drug manufacturers pay rebates and fees to PBMs to
obtain preferred placement on the drug formularies. The prices
that consumers or insurers are charged include the rebates and
fees, but consumers are not aware of this. [Id. at ¶¶ 8-10.]
According to the State, PBMs typically retain a portion of the
rebates. [Id. at ¶ 14.] PBMs will “exclude one or more drugs
used to treat the same condition from a PBM formulary to
intensify competition among manufacturers.” [Id. at ¶ 15.] Drug
manufacturers typically increase a drug’s wholesale acquisition
cost (“WAC”), also known as the “list price” or “sticker price,”
so that the rebate does not decrease the manufacturer’s target
revenue. [Id. at ¶ 16.] The State alleges that,
since 2014, there has been a fundamental shift in
payments from prescription drug manufacturers to
PBMs. Manufacturer payments to PBMs and other
intermediaries have risen by over 16% per annum
and now constitute 40% or more of brand-name
prescription drug costs. In 2013, the
manufacturer Sanofi offered rebates for insulin
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products between 2% and 4% for preferred
placement on CVS Caremark’s formulary. By
contrast, in 2018, Sanofi’s rebates for insulin
products were as high as 56% for preferred
formulary placement.
[Id. at ¶ 17 (footnotes omitted).]
The State contends the PBM practice of using rebates
and fees to manipulate the price of prescription drugs harms
consumers by: 1) increasing consumers’ out-of-pocket payments,
which are tied to a drug’s WAC; 2) increasing the likelihood
that consumers will change medications “for reasons other than a
drug’s efficacy, side effects, or clinical outcome,” which can
be particularly harmful because some drugs are more effective
for some patients than other drugs made to treat the same
condition; and 3) increasing drug prices for the market in
general, including persons who are not served by a PBM, such as
uninsured patients. [Id. at ¶ 20.]
“Defendants collectively manage 80% of prescription
drug benefits for more than 220 million Americans. As such,
placement on their formularies is a significant bargaining chip
when negotiating drug rebates.” [Id. at ¶ 14.] Defendants are
all registered to do business in Hawai`i and provide PBM
services in Hawai`i. See id. at ¶¶ 23, 26, 29. The State
investigated PBM involvement, but Caremark and OptumRx only
produced data regarding insulin products. Express Scripts
produced data regarding insulin products and one other product.
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The State therefore used insulin as a case study in its
investigation, [id. at ¶ 18,] but this action is not limited to
insulin and other diabetes medication, [id. at ¶ 22].
The State brings this action pursuant to Hawai`i
Revised Statutes Section 480-2 to prevent unfair or deceptive
acts or practices (“UDAP”) and unfair methods of competition in
trade or commerce (“UMOC”). [Id. at ¶ 21.] The State expressly
represents that it “is not seeking relief relating to any
federal program (e.g., Medicaid, Medicare, TRICARE, FEHBA) or
any contract related to a federal program,” but is instead
attempting to address “the larger unfair and deceptive scheme
that violates HRS § 480-2 and increased prices and reduced
access to brand-name prescription drugs for Hawai`i consumers.”
[Id. at ¶ 22.]
The State brings the following claims: a deceptive
acts and practices claim under Section 480-2 (“Count I”); an
unfair acts and practices claim under Section 480-2
(“Count II”); a UMOC claim under Section 480-2 (“Count III”);
and a claim for treble damages pursuant to Section 480-2 and
Hawai`i Revised Statutes Section 480-14 (“Count IV”).
The State seeks the following relief: a declaratory
judgment as to each count; an injunction prohibiting Defendants
from engaging in further UDAPs; a restitution award, pursuant to
Hawai`i Revised Statutes Section 661-10, for all Hawai`i
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consumers who were affected by Defendants’ unlawful acts and
practices; disgorgement of Defendants’ ill-gotten gains; treble
damages, pursuant to Section 480-14; civil penalties pursuant to
Hawai`i Revised Statutes Section 480-3.1 and pursuant to Hawai`i
Revised Statutes Section 480-13.5 for violations committed
against elders; attorney’s fees and costs; post-judgment
interest; and any other appropriate relief.
II. 	Basis for Removal and the Instant Motion
As previously noted, Express Scripts removed the
action based on the federal officer removal statute, Title 28
United States Code Section 1442(a)(1). See Notice of Removal at
¶ 16. As to any claims additional claims that would not be
covered by federal-officer removal, Express Scripts asserts
supplemental jurisdiction would apply. [Id. at ¶ 62 (citing 28
U.S.C. § 1367(a)).]
Express Scripts states it currently has a contract
with the United States Department of Defense (“DoD”) to provide
PBM services to members of the TRICARE health care program
(“TRICARE Contract”). TRICARE members include active-duty
service members, their families, and retired service members.
TRICARE has members in Hawai`i. [Id. at ¶¶ 3-4; Heihre Removal
Decl., Exh. B (redacted version of the TRICARE Contract).]
Express Scripts, through its subcontractors, administers mail-
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order pharmacy services under the TRICARE Contract. [Notice of
Removal at ¶ 5.]
Express Scripts contest the merits of the State’s
allegations and claims. [Id. at ¶¶ 5-6.] But, Express Scripts
argues that, “[r]egardless of the merits of its claims, the
State’s allegations implicate Express Scripts’ contractual
obligations under the TRICARE contract” because some of the
Hawai`i citizens that the State purports to protect in this
action are TRICARE beneficiaries, and some of the Hawai`i
TRICARE beneficiaries utilize the mail-order pharmacy services.
[Id. at ¶ 7.] Express Scripts asserts that “[t]he formulary used
for TRICARE beneficiaries, the prices the federal government
pays for the prescription drugs, and the copayments Express
Scripts must ensure beneficiaries pay, are all dictated by
federal law and the TRICARE Contract.” [Id.] Because the State
alleges Defendants’ practices lead to artificially inflated
prices that increase consumers’ out-of-pocket costs, and because
the State seeks to recover the alleged overpayments, Express
Scripts argues the State is seeking to recover copayments that
were determined by the federal government under the TRICARE
Contract. [Id. at ¶¶ 8-10.]
The arguments presented in Caremark’s Supplemental
Notice of Removal are similar to the arguments raised by Express
Scripts. In addition, Caremark notes that federal regulations
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authorize PBMs to negotiate rebates on behalf of Federal
Employees Health Benefits Act (“FEHBA”) carriers, and the
contracts that the PBMs have with FEHBA carriers usually require
that rebates be passed on to the carrier. Caremark negotiates
rebates with drug manufacturers on behalf of FEHBA carrier
clients as well as other clients, and no rebate is exclusive to
FEHBA plans. Thus, to the extent that the State challenges
Caremark’s rebate negotiations, the State necessarily challenges
conduct that Caremark engages in while acting under a federal
officer. [Suppl. Notice of Removal at ¶¶ 3-4.] Caremark argues
the State “challenge[s] core services that Caremark offers to
provide to all of its clients and for all pharmaceutical
products, including those governed by FEHBA contracts,” and, if
the State were to obtain the relief sought in this case, it
would impair or completely preclude Caremark’s delivery of those
core services to its clients, including FEHBA carriers. [Id. at
¶ 18.]
The crux of the State’s Motion is that paragraph 22 of
the Amended Complaint is an express disclaimer of any relief as
to federal programs, and therefore the disclaimer is sufficient
to avoid federal officer removal jurisdiction.
STANDARD
Title 28 United States Code Section 1442(a) states, in
pertinent part:
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A civil action . . . that is commenced in a State
court and that is against or directed to any of
the following may be removed by them to the
district court of the United States for the
district and division embracing the place wherein
it is pending:
(1) 	The 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 or on account of any
right, title or authority claimed under any
Act of Congress for the apprehension or
punishment of criminals or the collection of
the revenue.
The Ninth Circuit has stated:
The purpose of the federal officer removal
statute is “to ensure a federal forum in any case
where a federal official is entitled to raise a
defense arising out of his duties.” Arizona v.
Manypenny, 451 U.S. 232, 241, 101 S. Ct. 1657, 68
L. Ed. 2d 58 (1981). The right of removal is
“absolute for conduct performed under color of
federal office,” and the “policy favoring removal
‘should not be frustrated by a narrow, grudging
interpretation of § 1442(a)(1).’” Id. at 242, 101
S. Ct. 1657 (quoting Willingham v. Morgan, 395
U.S. 402, 407, 89 S. Ct. 1813, 23 L. Ed. 2d 396
(1969)).
An entity seeking removal under § 1442(a)(1)
bears the burden of showing “that (a) it is a
‘person’ within the meaning of the statute;
(b) there is a causal nexus between its actions,
taken pursuant to a federal officer’s directions,
and plaintiff’s claims; and (c) it can assert a
‘colorable federal defense.’” Durham v. Lockheed
Martin Corp., 445 F.3d 1247, 1251 (9th Cir. 2006)
(quoting Jefferson Cty. v. Acker, 527 U.S. 423,
431, 119 S. Ct. 2069, 144 L. Ed. 2d 408 (1999)).
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Goncalves ex rel. Goncalves v. Rady Children’s Hosp. San Diego,
865 F.3d 1237, 1244 (9th Cir. 2017). In performing this
analysis, courts have a “duty to interpret Section 1442 broadly
in favor of removal.” Id. (citation and internal quotation marks
omitted).
Removal rights under § 1442 thus “are much
broader than those under section 1441.” Durham,
445 F.3d at 1253. For example, “suits against
federal officers may be removed despite the
nonfederal cast of the complaint; the federal-
question element is met if the defense depends on
federal law.” Jefferson County v. Acker, 527 U.S.
423, 431, 119 S. Ct. 2069, 144 L. Ed. 2d 408
(1999). And unlike garden-variety remand orders
for lack of subject-matter jurisdiction or
defects in removal procedure, which are not
appealable, see Kircher v. Putnam Funds Tr., 547
U.S. 633, 640–41, 126 S. Ct. 2145, 165 L. Ed. 2d
92 (2006) (discussing 28 U.S.C. § 1447(d)’s
general preclusion of appellate review of remand
orders), when (as here) removal relies on § 1442,
a remand order for lack of subject-matter
jurisdiction is appealable. See 28 U.S.C.
§ 1447(d).
DeFiore v. SOC LLC, 85 F.4th 546, 554 (9th Cir. 2023) (emphasis
in original). In addition, when a defendant removes an action
based on the federal officer removal statute, the consent of the
other defendants is not required. Marcher v. Air & Liquid Sys.
Corp., Case No. 2:22-cv-00059-RGK-MRW, 2022 WL 562268, at *1 n.1
(C.D. Cal. Feb. 24, 2022) (citing 28 U.S.C. § 1442(a)).
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DISCUSSION
I. 	Whether Each Removing Defendant Is a “Person”
Each of the Removing Defendants is a “person” for
purposes of Section 1442(a)(1).
The courts of appeals have uniformly held that
corporations are “person[s]” under § 1442(a)(1).
See In re Commonwealth’s Motion to Appoint
Counsel Against or Directed to Def. Ass’n of
Phila., 790 F.3d 457, 467–68 (3d Cir. 2015)
(holding that § 1442(a)(1)’s use of the term
“person” includes corporations); Bennett v. MIS
Corp., 607 F.3d 1076, 1085 (6th Cir. 2010)
(same); Isaacson v. Dow Chem. Co., 517 F.3d 129,
135–36 (2d Cir. 2008) (same). We agree . . . .
See 1 U.S.C. § 1 (defining “person” to include,
unless the context indicates otherwise,
“corporations, companies, associations, firms,
partnerships, societies, and joint stock
companies, as well as individuals”); see also
Watson v. Phillip Morris Cos., 551 U.S. 142, 152–
54, 157, 127 S. Ct. 2301, 168 L. Ed. 2d 42 (2007)
(using the term “private person” and “company”
interchangeably in the context of § 1442(a)(1),
but holding that the defendant-company could not
remove the action); Leite v. Crane Co., 749 F.3d
1117, 1122 n.4, 1124 (9th Cir. 2014) (citing
Watson, 551 U.S. at 152–53, 127 S. Ct. 2301; and
Isaacson, 517 F.3d at 135–36); Jacks v. Meridian
Res. Co., LLC, 701 F.3d 1224, 1230 n.3 (8th Cir.
2012) (citing Watson, 551 U.S. at 152–53, 127 S.
Ct. 2301).
Goncalves, 865 F.3d at 1244 (some alterations in Goncalves).
Thus, the first federal officer removal requirement is satisfied
as to both Express Scripts and Caremark.
II. 	Causal Nexus
The second requirement - causal nexus - can be
established through a showing that: 1) the party’s actions at
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issue in the case were “‘actions under’ a federal officer”; and
2) there was a causal connection between those actions and the
plaintiff’s claims. Id. (citing Durham, 445 F.3d at 1251).
[T]he “hurdle erected by [the causal-connection]
requirement is quite low.” Isaacson, 517 F.3d at
137; see also Maryland v. Soper, 270 U.S. 9, 33,
46 S. Ct. 185, 70 L. Ed. 449 (1926) (“[T]he
statute does not require that the prosecution
must be for the very acts which the officer
admits to have been done by him under federal
authority. It is enough that his acts or his
presence at the place in performance of his
official duty constitute the basis, though
mistaken or false, of the state prosecution.”).
The [defendants] need show only that the
challenged acts “occurred because of what they
were asked to do by the Government.” Isaacson,
517 F.3d at 137. . . .
. . . Although the federal officer removal
statute is not limitless, “[t]he words ‘acting
under’ are broad,” and the Supreme Court “has
made clear that the statute must be ‘liberally
construed.’” Watson, 551 U.S. at 147, 127 S. Ct.
2301 (quoting Colorado v. Symes, 286 U.S. 510,
517, 52 S. Ct. 635, 76 L. Ed. 1253 (1932)). For a
private entity to be “acting under” a federal
officer, the private entity must be involved in
“an effort to assist, or to help carry out, the
duties or tasks of the federal superior.” Id. at
152, 127 S. Ct. 2301. The “relationship typically
involves ‘subjection, guidance, or control,’” but
it must go beyond simply complying with the law,
even if the laws are “highly detailed” and thus
leave the entity “highly regulated.” Id. at 151–
53, 127 S. Ct. 2301 (citation omitted). Thus,
“[t]he assistance that private contractors
provide federal officers [must go] beyond simple
compliance with the law and help[] officers
fulfill other basic governmental tasks.” Id. at
153, 127 S. Ct. 2301.
Id. at 1244–45 (some alterations in Goncalves).
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The required causal nexus can also be established by
showing that the defendant’s actions were connected to or
associated with acts under color of a federal office. DeFiore,
85 F.4th at 557 n.6. In DeFiore, the Ninth Circuit stated:
We note that in 2011 Congress amended
§ 1442(a)(1) to allow removal by federal officers
(and persons acting under them) of suits “for or
relating to any act under color of such
office . . . .” 28 U.S.C. § 1442(a)(1); see
Removal Clarification Act of 2011, Pub. L.
No. 112–51, § 2(b)(1)(A), 125 Stat. 545.
Previously, the statute allowed for removal of
suits “for any act under color of such office.”
By so amending the statute, “Congress broadened
federal officer removal to actions, not just
causally connected, but alternatively connected
or associated, with acts under color of federal
office.” Latiolais v. Huntington Ingalls, Inc.,
951 F.3d 286, 292 (5th Cir. 2020) (en banc)
(emphasis in original); cf. Morales v. Trans
World Airlines, Inc., 504 U.S. 374, 383, 112 S.
Ct. 2031, 119 L. Ed. 2d 157 (1992) (stating that
the “ordinary meaning” of “relating to” “is a
broad one — ‘to stand in some relation; to have
bearing or concern; to pertain; refer; to bring
into association with or connection with’”)
(quoting Black’s Law Dictionary 1158 (5th ed.
1979)). We read our “causal nexus” test as
incorporating the “connected or associated with”
standard reflected in Congress’s 2011 amendment
and the Supreme Court’s decisions. See Goncalves,
865 F.3d at 1244–45.
Id. (emphases in DeFiore).
A. 	Actions Under a Federal Officer
1. 	Caremark
In the instant case, Caremark argues it “helps [the
U.S. Office of Personnel Management (‘OPM’)] carry out its
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statutory mandate to provide health benefits to federal
employees by providing PBM services and thus acts under a
federal officer when acting on behalf of its FEHBA clients.”
[Caremark Opp. at 12 (citations omitted).]
Congress “establishe[d] a comprehensive program
of health insurance for federal employees.”
Empire Healthchoice Assurance, Inc. v. McVeigh,
547 U.S. 677, 682, 126 S. Ct. 2121, 165 L. Ed. 2d
131 (2006). Congress envisioned the creation of a
system whereby “OPM is ‘responsible for the
overall administration of the program while
sharing the day-to-day operating responsibility
with the employing agencies and the insurance
carriers.’” Houston Cmty. Hosp. v. Blue Cross &
Blue Shield of Tex., Inc., 481 F.3d 265, 271 (5th
Cir. 2007) (quoting H.R. Rep. No. 86-957, at 2
(1959)). FEHBA “authorized [OPM] to contract with
private carriers for federal employees’ health
insurance” and gave OPM “broad administrative and
rulemaking authority over the program.” Coventry
Health Care of Mo., Inc. v. Nevils, ––– U.S. ––––
137 S. Ct. 1190, 1194–95, 197 L. Ed. 2d 572
(2017) (citing 5 U.S.C. §§ 8901–13).
Goncalves, 865 F.3d at 1245–46 (alterations in Goncalves). OPM
contemplates that the FEHB carriers will utilize PBMs. See,
e.g., U.S. Office of Personnel Management Healthcare and
Insurance, FEHB Program Carrier Letter – All FEHB and PSHB
Carriers (PSHB: Except for Medicare Part D portion), Letter
Number 2024-05, Subject: Consolidated Pharmacy Benefits Guidance
for the FEHB Program (Feb. 12, 2024) at § XII (“Standards for
PBM arrangements are set out in the FEHB contracts.”); U.S.
Office of Personnel Management Healthcare and Insurance, FEHB
Program Carrier Letter – Experience-Rated HMO and Fee-For-
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Service Carrier, Letter Number 2024-02, Subject: Pharmacy
Benefits Management (PBM) Transparency Standards (Jan. 25, 2024)
at pg. 1 (“OPM has included PBM standards in FEHB contracts 2005
for FFS carriers and 2008 for ER HMO Carriers.”). 1
OPM’s standard contract with private carriers that
provide health insurance to federal employees includes various
requirements that apply when the carrier utilizes a PBM. See
Federal Employees Health Benefits Program Standard Contract for
Experience-Rated Health Maintenance Organization Carriers (2019)
(“Standard Contract”) at I-17, § 1.28 (“The Carrier will ensure
and report that the following standards are included in new,
renewing or amended contracts with vendors providing a retail
pharmacy network and/or a mail order pharmacy and/or a specialty
pharmacy to Enrollees and family members (hereafter ‘PBM’)
effective on or after January 1, 2011.”). 2 For example,
[t]he PBM agrees to provide pass-through
transparent pricing based on the PBM’s cost for
drugs (as described below) in which the Carrier
receives the value of the PBM’s negotiated
discounts, rebates, credits or other financial
benefits.
1 Letter Number 2024-05 is available at
https://www.opm.gov/healthcare-
insurance/carriers/fehb/2024/2024-05.pdf, and Letter
Number 2024-02 is available at https://www.opm.gov/healthcare-
insurance/carriers/fehb/2024/2024-02.pdf.
2 The Standard Contract is available at
https://www.opm.gov/healthcare-
insurance/carriers/fehb/experiencerated.doc.
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(i) 	The PBM shall charge the Carrier no
more than the amount it pays the pharmacies
in its retail network for brand and generic
drugs plus a dispensing fee.
(ii) The PBM shall charge the Carrier the
cost of drugs at mail order pharmacies based
on the actual cost, plus a dispensing fee.
Costs shall not be based on industry
benchmarks; for example, Average Acquisition
Cost (AAC) or Wholesale Acquisition Cost
(WAC).
(iii) The PBM, or any other entity that
negotiates and collects Manufacturer
Payments allocable to the Carrier agrees to
credit to the Carrier either as a price
reduction or by cash refund the value all
Manufacturer Payments properly allocated to
the Carrier. Manufacturer Payments are any
and all compensation, financial benefits, or
remuneration the PBM receives from a
pharmaceutical manufacturer, including but
not limited to, discounts; credits; rebates,
regardless of how categorized; market share
incentives, chargebacks, commissions, and
administrative or management fees.
Manufacturer payments also include any fees
received for sales of utilization data to a
pharmaceutical manufacturer.
Id. at I-18, § 1.28(a)(1) (emphases added). The formularies used
by a PBM are also subject to OPM reporting requirements. These
include quarterly and annual Manufacturer Payment Reports that
the PBM must submit to the carrier. See id. at I-18,
§ 1.28(a)(5). The Manufacturer Payment Reports must include the
following information,
in the aggregate for the 25 brand name drugs that
represent the greatest cost to the Carrier or
such number of brand name drugs that together
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represent 75 percent of the total cost to the
Carrier, whichever is the greater number:
(i) 	the dollar amount of Total Product
Revenue for the reporting period, with
respect to the PBM’s entire client base.
Total Product Revenue is the PBM’s net
revenue which consists of sales of
prescription drugs to clients, either
through retail networks or PBM-owned or
controlled mail order pharmacies. Net
revenue is recognized at the prescription
price negotiated with clients and associated
administrative fees;
(ii) the dollar amount of total drug
expenditures for the Plan;
(iii) the dollar amount of all Manufacturer
Payments earned by the PBM for the reporting
period;
(iv) the Manufacturer Payments that have
been (1) earned but not billed (2) billed
and (3) paid to the PBM based on the drugs
dispensed to the Plan members during the
past year.
(v) 	the percentage of all Manufacturer
Payments earned by the PBM for the reporting
period that were Manufacturer Formulary
Payments, which are payments the PBM
receives from a manufacturer in return for
formulary placement and/or access, or
payments that are characterized as
“formulary” or “base” rebates or payments
pursuant to the PBM’s agreements with
pharmaceutical manufacturers;
(vi) the percentage of all Manufacturer
Payments received by the PBM during the
reporting period that were Manufacturer
Additional Payments, which are all
Manufacturer Payments other than
Manufacturer Formulary Payments.
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Id. at I-18 to I-19, § 1.28(a)(5). OPM also imposes disclosure
requirements on a PBM regarding its formularies.
The Carrier will require that its PBM
contractors:
(i) 	Provide information to physicians,
pharmacists, other health care
professionals, consumers, and payers about
the factors that affect formulary system
decisions, including: cost containment
measures; the procedures for obtaining non-
formulary drugs; and the importance of
formulary compliance to improving quality of
care and restraining health care costs;
(ii) Provide consumer education that
explains how formulary decisions are made
and the roles and responsibilities of the
consumer; and
(iii) Disclose the existence of formularies
and have copies of the current formulary
readily available and publicly accessible.
Id. at I-19, § 1.28(a)(8).
The Standard Contract provides that “OPM reserves the
right to review and receive any information and/or documents the
Carrier receives from the PBM, including a copy of its contract
with the PBM.” Id. at I-19, § 1.28(a)(7). The carrier is subject
to audit by the OPM Office of Inspector General (“OPM OIG”),
and, as part of the audit, OPM OIG can request, and the PBM must
provide,
all PBM records including, but not limited to:
(i) 	All PBM contracts with Participating
Pharmacies;
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(ii) All PBM contracts with Pharmaceutical
Manufacturers;
(iii) All PBM contracts with third parties
purchasing or using claims data;
(iv) All PBM transmittals in connection with
sales of claims data to third parties; and
(v) 	All PBM Maximum Allowable Cost (MAC)
price lists.
Id. at I-19, § 1.28(a)(9). Caremark represents that the contract
provisions also allow OPM OIG to audit the PBM, and OPM OIG “has
exercised its authority to audit Caremark’s performance of PBM
services on behalf of FEHBA clients, including auditing
Caremark’s practices regarding Manufacturer Payments.” [Suppl.
Notice of Removal at ¶ 12.]
Further, Caremark represents:
13. Rebate agreements between PBMs and
manufacturers (“Rebate Agreements”) are
structured to cover a range of different clients
and different formulary possibilities, including
standard and custom formularies. For insulin,
Caremark does not negotiate a separate contract
for each of its clients with each manufacturer.
To the contrary, for most of the period
referenced in the [Amended Complaint], the same
manufacturer-PBM contracts that governed rebates
paid by manufacturers in connection with FEHBA
plans also governed rebates paid in connection
with non-FEHBA plans.
14. 	Caremark’s FEHBA clients expect and
desire that Caremark can and will obtain
competitive rebates to offset the costs of
pharmaceutical drugs. Such FEHBA clients would
not contract with a PBM that was unable or
unwilling to obtain discounts in the form of
Manufacturer Payments, like rebates.
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15. 	The rebates that Caremark passes
through to FEHBA clients ultimately reduce the
cost of federal employee healthcare incurred by
the government and/or employees.
[Id. at pgs. 7-8.]
In light of the foregoing, this Court finds that
Caremark’s actions at issue in this case regarding its formulary
and rebate practices were “‘actions under’ a federal officer,”
i.e. OPM. See Goncalves, 865 F.3d at 1244.
2. 	Express Scripts
Unlike Caremark, Express Scripts has a contract with
the DoD. See generally Heihre Removal Decl., Exh. B (redacted
version of the TRICARE Contract). Express Scripts argues: “The
DoD is required by law to engage companies like Express Scripts
for the provision of healthcare services to TRICARE members.
Congress also has required the Secretary of Defense to establish
an ‘effective, efficient, integrated pharmacy benefits program’
for TRICARE.” [Notice of Removal at ¶ 24 (citing 10 U.S.C.
§ 1073a) (quoting 10 U.S.C. § 1074g).] Express Scripts contends
it assists the DoD with, or helps the DoD carry out, these
duties by providing PBM services and administering DoD’s mail-
order pharmacy program under the TRICARE Contract, including the
Statement of Work within the TRICARE Contract. See id. at ¶¶ 23-
26. Section 1074g requires that the pharmacy benefits program
provided by the DoD
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include a uniform formulary of pharmaceutical
agents, which shall assure the availability of
pharmaceutical agents in the complete range of
therapeutic classes. The selection for inclusion
on the uniform formulary of particular
pharmaceutical agents in each therapeutic class
shall be based on the relative clinical and cost
effectiveness of the agents in such class. With
respect to members of the uniformed services,
such uniform formulary shall include
pharmaceutical agents on the joint uniform
formulary established under section 715 of the
National Defense Authorization Act for Fiscal
Year 2016.
10 U.S.C. § 1074g(a)(2)(A). Section 1074g further states:
(D) 	The Secretary shall establish procedures for
the selection of particular pharmaceutical agents
for the uniform formulary. Such procedures shall
be established so as best to accomplish, in the
judgment of the Secretary, the objectives set
forth in paragraph (1). Except as provided in
subparagraph (F), no pharmaceutical agent may be
excluded from the uniform formulary except upon
the recommendation of the Pharmacy and
Therapeutics Committee.
(E) 	Pharmaceutical agents included on the
uniform formulary shall be available to eligible
covered beneficiaries through—
(i) facilities of the uniformed services,
consistent with the scope of health care
services offered in such facilities and
additional determinations by the Pharmacy
and Therapeutics Committee of the relative
clinical and cost effectiveness of the
agents;
(ii) retail pharmacies designated or
eligible under the TRICARE program or the
Civilian Health and Medical Program of the
Uniformed Services to provide pharmaceutical
agents to covered beneficiaries; or
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(iii) the national mail-order pharmacy
program.
The Statement of Work in the TRICARE Contract states:
Features of the pharmacy benefits program include
the use of the DoD Uniform Formulary, a tiered
cost sharing structure, and a preference for
generic over branded products. The DoD formulary
is managed by the DoD Pharmacy and Therapeutics
(P&T) Committee and lists the pharmaceutical
agents, by therapeutic classes, that are
authorized as basic program benefits.
Prescriptions for selected pharmaceutical agents
may be subject to prior authorization or
utilization review requirements to assure medical
necessity, clinical appropriateness and/or cost-
effectiveness. DoD has established tiered cost-
sharing by which beneficiaries partially defray
costs of administering the pharmacy benefits
program. Cost-sharing amounts differ based on the
classification of a pharmaceutical agent as
generic, formulary, or non-formulary, in
conjunction with the point of service from which
the agent is acquired. . . .
Heihre Removal Decl., Exh. B at PageID.134, § C.1.4 (emphases
added); see also 10 U.S.C. § 1074g(a)(6)(A) (table setting forth
“the cost-sharing amounts under this subsection for eligible
covered beneficiaries,” for 2018 to 2027, for “retail generic”
pharmaceutical agents, “retail formulary” pharmaceutical agents,
“mail order generic” pharmaceutical agents, “mail order
formulary” pharmaceutical agents, and “mail order non-formulary”
pharmaceutical agents). Further, Express Scripts “perform[s] as
a fiscal intermediary on behalf of DoD to pay for all authorized
pharmaceuticals and supplies dispensed for eligible
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beneficiaries at retail pharmacies.” [Heihre Removal Decl.,
Exh. B at PageID.135, § C.1.6.]
The TRICARE Contract provides that: “Claims from
network pharmacies will be paid in accordance with the
agreements which exist between the Contractor and its network
pharmacies, e.g., WAC plus/minus price adjustment, plus
Dispensing Fee, minus the collected co-payment.” [Id. at
PageID.209, § G.11.1.4.1.] Express Scripts also represents that,
under the TRICARE Contract, there are “incentives to Express
Scripts if it is able to negotiate, with members of its retail
pharmacy network . . . , certain percentage discounts off the
WAC of a particular drug.” [Express Scripts Opp. at 12 (citing
Heihre Removal Decl., Exh. B. at PageID.217-19, § H.1).]
In light of the foregoing, this Court finds that
Express Scripts’s actions at issue in this case regarding its
formulary practices and pricing based off of a pharmaceutical
product’s WAC were “‘actions under’ a federal officer,” i.e. the
DoD.
B. 	Causal Connection or Association/Connection
In addition to the contractual provisions cited in the
“actions under” analysis, Caremark represents that it “conducts
rebate negotiations simultaneously on behalf of a large swath of
clients including FEHBA plans,” and “none of the rebates that
Caremark negotiates for insulin are exclusive to FEHBA plans.”
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[Suppl. Notice of Removal at ¶ 4.] Caremark also represents
that:
Rebate agreements between PBMs and manufacturers
(“Rebate Agreements”) are structured to cover a
range of different clients and different
formulary possibilities, including standard and
custom formularies. For insulin, Caremark does
not negotiate a separate contract for each of its
clients with each manufacturer. To the contrary,
for most of the period referenced in the FAC, the
same manufacturer-PBM contracts that governed
rebates paid by manufacturers in connection with
FEHBA plans also governed rebates paid in
connection with non-FEHBA plans.
[Id. at ¶ 13.] Among the State’s allegations in this case are
that PBMs artificially inflate the prices of prescription drugs
by requiring drug manufacturers to pay rebates in exchange for
preferred placement on the PBM’s drug formulary. See, e.g.,
Amended Complaint at ¶¶ 7-13. Because Caremark negotiates
rebates collectively and does not have separate contracts for
FEHBA plans and non-FEHBA plans, and because the determination
of drug prices is regulated by OPM through the OPM’s contracts
with the private carriers that contract with Caremark, the
conduct that the State challenges in the instant case “occurred
because of what [Caremark was] asked to do by the Government.”
See Isaacson, 517 F.3d at 137. Thus, Caremark has established
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the causal-connection requirement in the causal nexus analysis.
See Goncalves, 865 F.3d at 1244. 3
Express Scripts points out that the State seeks to
recover inflated out-of-pocket costs, including copayments, that
Hawai`i consumers incurred because of what the State alleges are
unlawful acts and practices by Express Scripts. [Notice of
Removal at ¶¶ 8-9.] However, some of the consumers in Hawai`i
are TRICARE beneficiaries who utilize Express Scripts’s mail-
order pharmacy services. The copayments collected from those
Hawai`i consumers and the prices that the federal government
pays are dictated by federal law and the TRICARE Contract. [Id.
at ¶ 7.] Express Scripts asserts that, “[b]y seeking to recover
out-of-pocket costs any Hawai`i citizen has paid for certain
prescription drugs with purportedly inflated list prices, the
State necessarily seeks to recover the fixed copayments
contractually mandated by the federal government that Express
Scripts must ensure TRICARE beneficiaries pay for prescription
drugs.” [Id. at ¶ 10.] As to the TRICARE beneficiaries in
Hawai`i who utilize Express Scripts’s mail-order pharmacy
services, Express Scripts has established that the conduct the
State challenges in the instant case occurred because of what it
3 In the alternative, this Court concludes that Caremark has
established the broader connection to or association with
requirement of the causal nexus analysis. See DeFiore, 85 F.4th
at 557 n.6.
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was required to do under the TRICARE Contract and the applicable
federal statutes. Thus, Express Scripts has established the
causal-connection requirement in the causal nexus analysis. 4
The State, however, argues its disclaimer in
paragraph 22 of the Amended Complaint negates any causal
connection or any connection to, or association with, acts under
color of a federal office. This Court recognizes that a
plaintiff may expressly waive claims that would give rise to
potential federal defenses, such as the federal officer removal
statute. See, e.g. Marcher, 2022 WL 562268, at *2 (“many courts
in the Ninth Circuit have recognized that when the federal
officer removal statute is at issue, a plaintiff may expressly
waive claims that would give rise to potential federal defenses”
(citing Fisher v. Asbestos Corp., 2014 WL 3752020 (C.D. Cal.
July 30, 2014); Lockwood v. Crane Corp., 2012 WL 1425157 (C.D.
Cal. Apr. 25, 2012)). As one district court has stated:
Courts have frequently analyzed purported
waivers in § 1442 removal cases, with the waivers
generally falling into one of four categories:
(1) Express claim waivers: the waiver
clearly carves out certain factual
bases, whether by time span or
location, such that any alleged injury
could not have happened under the
direction of a federal officer. E.g.,
Fisher, 2014 WL 3752020, at *4.
4 In the alternative, this Court concludes that Express
Scripts has established the broader connection to or association
with requirement of the causal nexus analysis.
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(2) Ambiguous waivers: the waiver was
insufficiently comprehensive or subject
to conflicting interpretations in light
of other allegations, leaving some
claims that gave rise to a government
contractor defense. E.g., Despres v.
Ampco-Pittsburgh Corp., 577 F. Supp. 2d
604, 608 (D. Conn. 2008) (“Plaintiffs
in this case have not excluded from
their claims against [defendant] all
instances of asbestos exposure as a
result of [defendant’s] work on behalf
of the Navy. Yet, Plaintiffs maintain
that they have waived their federal
claims. Plaintiffs cannot have it both
ways.”)
(3) Overbroad waivers: the waiver attempted
to carve out factual bases giving rise
to a federal defense, but the complaint
contained allegations based solely on
facts giving rise to a federal defense.
E.g., In re Asbestos Products Liab.
Litig. (No. VI), 770 F. Supp. 2d 736,
741-42 (E.D. Pa. 2011) (“While
Plaintiffs purport to exclude any
claims against Defendant ‘caused by the
acts or omissions of defendants
committed at the specific and proven
direction of an officer of the United
States government acting in his
official capacity,’ the only claims
alleged against Defendant arises from
exposure on U.S. Naval ships at U.S.
Naval shipyards.”)
(4) Jurisdictional waivers: the waiver was
designed to circumvent § 1442 through
“artful pleading” on technicalities
rather than to disclaim factual
allegations giving rise to a federal
defense. E.g., McMann v. Air & Liquid
Sys. Corp., No. 2:14-cv-281, 2014 WL
1794694 (W.D. Wash. May 6, 2014) (in
which plaintiffs filed a “disclaimer of
any claims subject to a government
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contractor defense under Boyle,” and
the court found the disclaimer
ineffective).
Ambiguous, overbroad, and jurisdictional waivers
are routinely and uniformly found insufficient to
support remand, while express claim waivers have
almost always been found sufficient to eliminate
the factual basis of a federal defense so that
remand is appropriate.
O’Shea v. Asbestos Corp., Case No. 3:19-cv-127, 2019 WL
12345572, at *7 (D.N.D. Dec. 13, 2019) (alterations in O’Shea). 5
In the instant case, to plead an effective waiver, the
State was required to expressly carve out certain factual bases,
whether by time span or location, such that any alleged injury
caused by Caremark could not have happened under OPM’s
direction, and any alleged injury caused by Express Scripts
could not have happened under the DoD’s direction. See id.
(citing Fisher, 2014 WL 3752020, at *4). The type of language
necessary to assert a valid waiver is illustrated in Fisher,
2014 WL 3752020. In that case, the complaint pled “distinct
allegations of asbestos exposure at government and at civilian
work sites,” id. at *4, but the plaintiff’s post-removal
disclaimer expressly stated he did not allege he “was exposed to
asbestos from CRANE CO. products on U.S. Naval vessels or at
U.S. government jobsites” and expressly “waive[d] any claims
5 The magistrate judge’s report and recommendation was
adopted by the district judge. 2020 WL 9848714 (Jan. 8, 2020).
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against defendant CRANE CO. relating to or arising out of
plaintiff’s asbestos exposure at military and federal government
jobsites or from U.S. military vessels or equipment,” id. at *2
(emphases in Fisher) (citations and quotation marks omitted).
Fisher’s disclaimer was a valid, express claim waiver. The
district court therefore rejected Crane’s argument that federal
jurisdiction existed based on Crane’s government contractor
defense and granted the plaintiff’s motion for remand. Id. at
*1, 6-7.
In the instant case, the State attempts to disclaim
any “relief relating to any federal program (e.g., Medicaid,
Medicare, TRICARE, FEHBA) or any contract related to a federal
program.” [Amended Complaint at ¶ 22.] However, because Caremark
negotiates rebates for multiple clients collectively and does
negotiate rebates that are exclusively for FEHBA-carrier
clients, [Suppl. Notice of Removal at ¶ 4,] if Caremark did
violate Hawai`i Revised Statutes Chapter 480 in its rebate
negotiations, the violation may have happened under OPM’s
direction. Thus, as to the State’s claims against Caremark,
paragraph 22 of the Amended Complaint fails to assert an express
claim waiver, and the State has failed to negate the causal
nexus that Caremark has established.
In contrast to Caremark’s causal nexus argument, which
focuses on Caremark’s conduct while acting under OPM, Express
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Scripts’s causal nexus argument focuses on the alleged injuries
asserted by the State. See Notice of Removal at ¶¶ 8-10; Express
Scripts Opp. at 11 (emphasizing that the drug manufacturer
determines a drug’s WAC and that the WAC is the same for all
purchasers and arguing that “[p]enalizing Express Scripts for
manufacturer increases in WAC of insulin means Express Scripts
would be penalized for work it performs under TRICARE.”).
Because the State has confirmed that it does not seek relief
related to any federal program nor relief related to any
contract related to a federal program, even if the State
ultimately prevails on its claims, there will be no award
against Express Scripts that is based upon services Express
Scripts provided under the TRICARE Contract. Thus, there will be
no penalty against Express Scripts for its actions connected to
or associated with acts under the DoD. As to its claims against
Express Scripts, paragraph 22 of the Amended Complaint
constitutes an express claim waiver that negates the causal
nexus that Express Scripts has established.
Because one of the requirements for federal officer
removal is not met, Express Scripts’s removal of this action was
improper. However, remand of this action is not necessary if
Caremark’s removal was proper. See Sroka v. Union Carbide Corp.,
Civil No. WDQ–13–3281, 2015 WL 794942, at *3 n.13 (D. Md.
Feb. 24, 2015) (“Removal under the federal officer removal
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statute is proper when one defendant meets the statute’s
requirements.” (citation omitted)); see also Gehant v. Air &
Liquid Sys., Corp., CIVIL ACTION NO. 19-732-SDD-EWD, 2021 WL
4317284, at *3 (M.D. La. Aug. 31, 2021) (noting that, “[a]t the
time of removal, and in light of the liberal interpretation
given to § 1442, federal officer removal jurisdiction was
sufficiently pleaded as to at least one defendant”). 6
III. Colorable Defense
The Ninth Circuit has stated:
The purpose of th[e colorable defenses]
requirement is to supply a federal element under
which the defense to the action arises. Mesa [v.
California], 489 U.S. [121,] 136, 109 S. Ct. 959
[(1989)]. Thus, “the federal-question element is
met if the defense depends on federal law.”
Jefferson County, 527 U.S. at 431, 119 S. Ct.
2069. In determining removal jurisdiction under
§ 1442(a)(1), the scope of the court’s inquiry is
only whether the defendant advanced a colorable
federal defense, “not whether [the] defense will
be successful.” Magnin v. Teledyne Cont’l Motors,
91 F.3d 1424, 1429 (11th Cir. 1996) (citing Mesa,
489 U.S. at 133, 109 S. Ct. 959). Defendants
“need not win [their] case” before removal.
Willingham, 395 U.S. at 406–07, 89 S. Ct. 1813.
And a removing defendant need not have a
colorable federal defense for every claim; one
colorable federal defense against one asserted
claim is enough. Mesa, 489 U.S. at 129, 109 S.
Ct. 959.
6 The magistrate judge’s Report and Recommendation in Gehant
was adopted by the district judge. 2021 WL 4314580 (Sept. 22,
2021).
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DeFiore, 85 F.4th at 558 (some alterations in DeFiore). The
relevant question is “whether th[e] defense [i]s ‘immaterial and
made solely for the purpose of obtaining jurisdiction or . . .
wholly insubstantial and frivolous.’ Bell [v. Hood], 327 U.S.
[678,] 682–83, 66 S. Ct. 773 [(1946)]. Any federal defense that
clears the low bar of Bell is colorable.” DeFiore, 85 F.4th at
560.
Caremark argues it has a colorable express preemption
defense. [Caremark Opp. at 13-14.] This Court agrees. Under the
FEHBA, “[t]he terms of any contract under [the FEHBA] 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 or plans.”
5 U.S.C. § 8902(m)(1). In Goncalves, the Ninth Circuit held that
the removing parties had a colorable defense based on
Section 8902(m)(1). 865 F.3d at 1249. In so holding, the Ninth
Circuit relied on the United States Supreme Court’s holding in
Coventry Health Care of Missouri, Inc. v. Nevils, 581 U.S. 87,
137 S. Ct. 1190 (2017), that
§ 8902(m)(1) preempts state anti-subrogration
laws by virtue of the fact that the “carrier’s
very provision of benefits triggers the right to
payment,” and all that is required for preemption
is for the action to “relate to” that right to
repayment, which is met in the subrogation-claim
context. [Nevils, 137 S. Ct.] at 1197–98. In
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light of Nevils, we have little trouble
concluding that the [removing parties’] assertion
that § 8902(m)(1) preempts any state law
supporting Goncalves’s motion to expunge the lien
is a colorable federal defense.
Goncalves, 865 F.3d at 1249.
Caremark is not a health insurance carrier like the
removing parties in Goncalves were, but the analysis of the
“relate to” language in Section 8902(m)(1) is instructive here.
Because Caremark alleges it is “contractually require[d] . . .
to pass all rebates they receive onto their FEHBA carrier
clients,” [Suppl. Notice of Removal at ¶ 3,] the State’s claims
challenging Caremark’s rebate practices arguably relate to the
FEHBA carrier clients’ right to repayment for prescription drug
benefits that they provided to their insureds. Further,
Caremark’s formulary practices that are at issue in this case
arguably relate to the coverage or benefits that the FEHBA
carrier clients provide to their insureds. See id. at ¶ 6 (“PBMs
develop lists of drugs called ‘formularies,’ which health-plan
clients can adopt to determine whether and to what extent those
clients cover the cost of certain medications for their members.
Although PBMs develop formulary products they offer to clients,
their clients decide whether to accept, reject, or customize an
offered formulary and set the coverage that applies to their
members.” (citations omitted)). This Court therefore concludes
that Caremark has a colorable defense that the FEHBA expressly
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35
preempts the Hawai`i Revised Statutes Chapter 480 claims that
the State brings in this case. 7
IV. 	Ruling
Because Caremark has established all of the federal
officer removal requirements, its Supplemental Notice of Removal
properly removed this action based on the federal officer
removal statute. The State’s Motion is therefore denied. This
Court, however, notes that the analysis in the instant Order is
based upon the existing record. If it later becomes evident that
the relevant facts developed in the litigation do not support
jurisdiction, then dismissal and remand may be appropriate based
on lack of subject matter jurisdiction. See Fed. R. Civ.
P. 12(h)(3) (“If the court determines at any time that it lacks
subject matter jurisdiction, the court must dismiss the
action.”); 28 U.S.C. § 1447(c) (“If at any time before final
judgment it appears that the district court lacks subject matter
jurisdiction, the case shall be remanded.”); see also Fisher,
2014 WL 3752020, at *5 (“When federal question jurisdiction is
the only basis for a district court’s authority to adjudicate,
post-removal developments may cause remand not only to be
7 Because this Court concludes Caremark has a colorable
express preemption defense, it is not necessary to address
Caremark’s alternative argument that it has a colorable obstacle
preemption defense. See Caremark Opp. at 15.
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proper, but even to be required.” (some citations omitted)
(citing 28 U.S.C. § 1447(c)).
CONCLUSION
For the foregoing reasons, the State’s Motion to
Remand, filed November 29, 2023, is HEREBY DENIED.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, May 1, 2024.
STATE OF HAWAI`I EX REL. ANNE E. LOPEZ, ATTORNEY GENERAL VS.
CAREMARKPCS HEALTH, L.L.C., ET AL; CV 23-00464 LEK-RT; ORDER
DENYING PLAINTIFF’S MOTION TO REMAND
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