United States District Court, D. Maine
KELSEY HERRICK, individually and on behalf of her minor children A.B. and C.B., Plaintiff
MELISSA MONTEJANO, et al., Defendants
ORDER ON MOTIONS TO REMAND
BROCK HORNBY, UNITED STATES DISTRICT JUDGE
a case about the proceeds of a Federal Employees' Group
Life Insurance (FEGLI) policy. I recite the relevant facts as
stated in the complaint. The decedent federal employee had a
FEGLI policy. A 2012 Maine divorce and child custody decree
directed him to maintain the FEGLI policy and name his former
wife as the beneficiary until child support and spousal
support obligations ceased. He did in fact maintain the
policy, but he never named a beneficiary. A federal statute
requires FEGLI proceeds to be distributed in accordance with
a divorce decree expressly providing for their distribution,
but only if the decree “is received, before the date of
the covered employee's death, by the employing
agency.” 5 U.S.C. § 8705(e). This divorce decree
was never properly lodged as the statute requires. Under that
same federal statute, if there is no designated beneficiary,
the proceeds are paid “to the widow or widower of the
employee.” 5 U.S.C. § 8705(a). As a result, upon
the insured's death, the policy administrator refused to
pay the proceeds to the plaintiffs, who are the
decedent's former wife and his children, and paid the
proceeds instead to a woman whom the decedent married in 2013
but apparently did not live with.
former wife and the children filed a lawsuit in state court
against the divorced wife's lawyer and law firm for legal
malpractice in failing to file the divorce decree with the
policy administrator, and against the later wife based upon
constructive trust, unjust enrichment, and breach of
contract. The second wife removed the entire lawsuit to
federal court, asserting federal question jurisdiction. The
plaintiff, the lawyer, and the law firm have moved to remand
it back to state court.
motions to remand are Granted because
federal question jurisdiction is lacking.
plaintiff has not pleaded any federal claim in her complaint.
Although the defendant who removed the case to federal court
seems to have a federal defense on at least one of the
plaintiff's claims against her,  it is hornbook law that a
federal defense does not alone confer subject matter
jurisdiction. As the United States Supreme Court said in
1987, “it is now settled law that a case may
not be removed to federal court on the basis of a
federal defense, including the defense of pre-emption, even
if the defense is anticipated in the plaintiff's
complaint, and even if both parties concede that the federal
defense is the only question truly at issue.”
Caterpillar Inc. v. Williams, 482 U.S. 386, 393
(1987). According to Caterpillar, there is one
exception (the Court called it an “independent
corollary”): sometimes “the pre-emptive force of
a statute is so ‘extraordinary' that it
‘converts an ordinary state common-law complaint into
one stating a federal claim for purposes of the well-pleaded
complaint rule.'” Id. (The Court added
that it is “applied primarily in cases raising claims
pre-empted by § 301 of the LMRA [Labor Management
Relations Act].” Id.) This is not such a case;
the plaintiffs' claims are in no way-explicitly or
FEGLI Act does preempt any state law that is
inconsistent with it (so-called conflict preemption), but it
does not completely preempt state law within the
meaning of Caterpillar. Several district court cases
have reached that conclusion. See, e.g.,
Day v. Silverthorn, 2019 WL 1111431, at *3 (N.D.
Cal. Mar. 11, 2019); Metro. Life Ins. Co. v.
Thompson, 2018 WL 7324383, at *3 (E.D.N.Y. Dec. 14,
2018); Messinger v. Rodriguez, 2018 WL 817211, at *4
(D.S.C. Feb. 12, 2018); Meriwether v. Metro. Life Ins.
Co., 2017 WL 6442141, at *3-4 (M.D. Tenn. Dec. 18,
2017); Herrera v. Metro. Life Ins. Co., 2011 WL
6415058, at *4-5 (S.D.N.Y. Dec. 19, 2011); Victoria v.
Metro. Life Ins., 2010 WL 583946, at *2 (N.D. Cal. Feb.
16, 2010); Parker v. Metro. Life Ins. Co., 264
F.Supp.2d 364, 366-67 (D.S.C. 2003); Kittner v. Metro.
Life Ins. Co., 2001 WL 388754, at *2 (W.D.N.Y. Apr. 13,
2001). The parties have cited no contrary cases. I agree with
the cited cases that the FEGLI Act does not completely
preempt state law and see no need to add to their reasoning.
The defendant can present her FEGLI defenses in state court.
this Court lacks federal subject matter jurisdiction, I do
not rule on the defendant Montejano's motion to dismiss
or for judgment on the pleadings. The case is
Remanded to the Maine Superior Court (York
 In Metro. Life Ins. Co. v.
Zaldivar, 413 F.3d 119, 120 (1st Cir. 2005), the First
Circuit held that FEGLI rules for distribution preempt
“a state law claim for the imposition of a constructive
trust upon the proceeds of a federal group life insurance
policy.” (5 U.S.C. § 8709(d)(1) states: “The
provisions of any contract under this chapter which relate to
the nature or extent of coverage or benefits (including
payments with respect to benefits) shall supersede and
preempt any law of any State or political subdivision
thereof, or any regulation issued thereunder, which relates
to group life insurance to the extent that the law or
regulation is inconsistent with the contractual
provisions.”) The Zaldivar court did not
address subject matter jurisdiction.
 The Supreme Court later dealt with a
Virginia state court ruling that the FEGLI Act (FEGLIA)
preempted Virginia law in Hillman v. Maretta, 569
U.S. 483 (2013). The Court stated: “Although FEGLIA
contains an express pre-emption provision, . . . the court
below considered only whether [one section of the state law]
is pre-empted under conflict pre-emption principles. We limit
our analysis here to that holding. State law is pre-empted
‘to the extent of any conflict with a federal
statute.'” Id. at 490.
The removing defendant in this case also relies on
Ortiz-Bonilla v. Federacion de Ajedrez de Puerto Rico,
Inc., 734 F.3d 28 (1st Cir. 2013). There, the First
Circuit stated that in addition to direct federal question
jurisdiction (where the federal claim appears on the face of
the complaint), there is a “second (and more
controversial) category of cases, those with an
‘embedded federal question,' meaning suits in which
the plaintiff pleads a state-law cause of action that
necessarily turns on some construction of federal law.”
Id. at 34. In Ortiz-Bonilla, the court did
not find such a claim. In any event, what ...