The Sixth Circuit has recently decided a landmark case regarding the constitutionality of health care reform.  Now, it is being asked again to review a case of great significance to the provision of health care services.  In United States of America v. Blue Cross/Blue Shield of Michigan, (Eastern District of Michigan), the federal and state governments sued Blue Cross/Blue Shield for a variety of antitrust violations arising out of Blue Cross’s use of “Most Favored Nation” clauses.  The parties have vastly different perspectives on the utility and effects of MFN clauses and Blue Cross recently moved to dismiss on a variety of bases, including that it was the beneficiary of state action immunity.  The federal government’s opposition brief is available here.  The district court recently denied that motion to dismiss, prompting Blue Cross to appeal.

While the case presents a number of fascinating issues in their own respect, the threshold issue that the Sixth Circuit will have to address is appellate jurisdiction.  As we all know, the court normally does not have appellate jurisdiction to review the denial of a motion to dismiss.  In its notice of appeal, Blue Cross seeks to establish appellate jurisdiction through the collateral order doctrine based on the denial of the motion to dismiss on state action immunity grounds.  Blue Cross claims that a prior Sixth Circuit decision (Huron Valley Hospital, Inc. v. City of Pontiac, 792 F.2d 563 (6th Cir. 1986), which apparently held that the denial of such a motion to dismiss is not immediately appealable under the collateral order doctrine) is both distinguishable and should be overruled based on subsequent authorities from outside circuits.  If the Sixth Circuit disagrees with Blue Cross on the fact of Huron Valley being distinguishable, then Blue Cross is effectively asking for an initial hearing en banc because that would be the only way that the court could overrule Huron Valley.  The notice of appeal will presumably draw a motion to dismiss for lack of appellate jurisdiction from the government, and we will watch this closely to see if the Sixth Circuit sheds any light on the application of the collateral order doctrine in this circumstance.