Here, Plaintiff is a participant of an ERISA-governed Plan. Compl., ¶¶ 10-12; Exhibit A (Declaration of Robert M. Mayer In Support Of Notice Of Removal, ¶ 3 (confirming “the Plan is an employer-established group welfare benefits plan subject to the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001 et seq.”)); 29 U.S.C. § 1003(a) (ERISA applies to any “employee benefit plan” that is “established or maintained by . . . any employer engaged in commerce . . . .”). Moreover, Plaintiff ultimately seeks redress pursuant to the Plan in the form of a “declaration,” an “order enjoining Aetna,” “restitution,” and “attorneys’ fees” – all ERISA remedies.

All employer-provided health plans in the private sector are governed by ERISA. See 29 U.S.C. § 1003 (West 2009).15/ Even if the law were not so clear, the Rule 12(b)(6) standard requires this Court to assume on a Motion to Dismiss that the allegations in the Complaint, including the allegation that this case involves an ERISA-governed health plan, are true. See supra at n. 5.

But “CHAMPUS, as a governmental program, is excluded from ERISA.” McGee v. Funderburg, 17 F.3d 1122, 1125 (8th Cir. 1994); see also 29 U.S.C. § 1003(b)(1) (providing that “the provisions of this subchapter shall not apply to any employee benefit plan if . . . such plan is a governmental plan”). Case 1:16-cv-09538-NLH-KMW Document 27-1 Filed 05/12/17 Page 19 of 23 PageID: 288 13 States, not its officers, nor any other individual”); Stephenson v. United States, 58 Fed. Cl. 186, 190 (2003) (same).

There are two components to ERISA’s powerful preemptive force, one under Section 502 (complete preemption), 29 U.S.C. § 1132, and one under Section 514 (conflict 3 A plan is an employee benefit plan “if it is established or maintained – (1) by any employer engaged in commerce or in any industry or activity affecting commerce; or (2) by any employee organization or organizations representing employees engaged in commerce or in any industry or activity affective commerce; or (3) by both.” 29 U.S.C. § 1003(a). Case 2:16-cv-03722-ODW-RAO Document 34-1 Filed 10/24/16 Page 13 of 21 Page ID #:1232

” Blue Cross of Cal. v. Anesthesia commerce or in any industry or activity affective commerce; or (3) by both.” 29 U.S.C. § 1003(a). Case 2:16-cv-03722-ODW-RAO Document 24-1 Filed 09/26/16 Page 10 of 17 Page ID #:124

3 See Aetna Health Inc. v. Davila, 124 S. Ct. 2488, 2495 (2004). 4 29 U.S.C. § 1003. 5 29 U.S.C. § 1002(3).

ERISA governs “any employee benefit plan if it is established or maintained (a) by any employer engaged in commerce or in any industry or activity affecting commerce; or (b) by any employee organization or organizations representing employees engaged in commerce or in any industry or activity affecting commerce; or (c) by both.” 29 U.S.C. 1003(a). Almost all of the Cigna plans for each of the two years at issue as well as for all times are admittedly self- funded employer plans and/or fully insured policies and Cigna admits that they are ERISA employee welfare benefit plan[s] which “are governed by ERISA.”

at 5 (citing 79 Fed. Reg. at 51,095 n.8), but the fact that ERISA provides no authority to regulate church plans, see 29 U.S.C. § 1003(b)(2), and consequently that defendants lack enforcement authority against the third-party administrators of self-insured church plans, clearly does not constitute an exemption Case 1:14-cv-01149-RJL Document 16 Filed 09/23/14 Page 50 of 61 36 from the contraceptive coverage requirement for such plans. The Departments are constrained by preexisting limits on their statutory authority to regulate third-party administrators in this circumstance, and have offered to pay third-party administrators to make or arrange separate payments for contraception in those situations.

at 5 (citing 79 Fed. Reg. at 51,095 n.8), but the fact that ERISA provides no authority to regulate church plans, see 29 U.S.C. § 1003(b)(2), and consequently that defendants lack enforcement authority against the third-party administrators of self-insured church plans, clearly does not constitute an exemption Case 1:14-cv-01149-RJL Document 17 Filed 09/23/14 Page 48 of 59 36 from the contraceptive coverage requirement for such plans. The Departments are constrained by preexisting limits on their statutory authority to regulate third-party administrators in this circumstance, and have offered to pay third-party administrators to make or arrange separate payments for contraception in those situations.

In Assoc. Builders & Contrs., because the Michigan law under challenge did not apply exclusively to apprenticeship plans regulated by ERISA, the Sixth Circuit concluded that it did not have the requisite “reference to” ERISA plans in order for ERISA preemption to apply. “The rules 4 See 29 U.S.C. § 1003(a): an ERISA-regulated plan is one that “is established or maintained –(1) by an employer… (2) by any employee organization…; or (3) by both.” Case: 1:14-cv-00450-MRB Doc #: 10 Filed: 06/13/14 Page: 10 of 21 PAGEID #: 94 11 do not ‘act[] immediately and exclusively upon ERISA plans’, and thus do not depend on the existence of ERISA plans [for their] … operation.