319 F3d 1078 Botsford v. Blue Cross and Blue Shield of Montana Inc

319 F.3d 1078

Bruce F. BOTSFORD, Plaintiff-Appellee,
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.


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


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:


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").


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


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.


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