EMPIRE HEALTHCHOICE ASSURANCE, INC., doing business as Empire Blue Cross and Blue Shield, Plaintiff-Appellant, v. Denise Finn MCVEIGH, as administratrix of the Estate of Joseph E. McVeigh, Defendant-Appellee, 396 F.3d 136

Judge SACK concurs in Judge SOTOMAYOR’s opinion and in a separate opinion. Judge RAGGI dissents in a separate opinion. SOTOMAYOR, Circuit Judge. Empire HealthChoice Assurance, Inc. (“Empire”) appeals from a judgment entered in the United States District Court for the Southern District of New York (Cote, J.) dismissing for lack of subject matter jurisdiction Empire’s contract action against Denise McVeigh, as adminis-tratrix of Joseph McVeigh’s estate, for reimbursement of insurance benefits.

Because the Federal Employees Health Benefits Act, 5 U.S.C. §§ 8901-8914, does not affirmatively authorize the creation of federal common law in this case, federal common-law rule-making is only appropriate if the operation of state law would “ ‘significantly] conflict’ ” with “uniquely federal interest[s].” Boyle v. United Techs. Corp., 487 U.S. 500, 507, 508, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988). Because no such conflict has been demonstrated in this dispute, Empire’s action arises under state, not federal, law.

Accordingly, we affirm the district court’s dismissal of the action for lack of subject matter jurisdiction. See 28 U.S.C. § 1381; Empire HealthChoice Assurance v. McVeigh, No. 03 Civ. 2728, 2003 WL 22171693 (S.D.N.Y. Sept.18, 2003). BACKGROUND The Federal Employees Health Benefits Act (“FEHBA”) charges the United States Office of Personnel Management (“OPM”) with negotiating and regulating health benefits plans for federal employees. See 5 U.S.C. § 8902(a).

Pursuant to FEHBA, OPM entered into a contract in 1960 with the Blue Cross and Blue Shield Association (“BCBSA”) to establish a nationwide fee-for-service health plan (the “Plan”), the terms of which are renegotiated annually. Plaintiff-appellant Empire is the entity that administers the Plan to federal employees in New York State. Defendanh-Appellee Denise Finn McVeigh (“McVeigh”) administers the estate of Joseph E. McVeigh (“Decedent”), a former enrollee in the Plan.

The Decedent suffered injuries in an accident in 1997 and received $157,309.06 in benefits from the Plan between 1997 and 2001, the year of his death. McVeigh subsequently brought state tort actions on behalf of herself, the Decedent and a minor child against the parties who had allegedly caused Decedent’s injuries. McVeigh received $3,175,000 when the lawsuit settled in 2003. Prior to the entry of the settlement, Empire became aware of the agreement and notified McVeigh that it had a lien on the Decedent’s share of the settlement for $157,309.06.

McVeigh agreed to place $100,000 of the Decedent’s share of the settlement funds into escrow pending resolution of Empire’s claims. On April 18, 2003, Empire filed suit against McVeigh for $157,309.06 in the United States District Court for the Southern District of New York. The complaint was based on a subrogation and reimbursement provision contained in the Statement of Benefits of the Plan. Under this provision, an enrollee who receives benefits in connection with an injury in addition to compensation from a third party must reimburse the Plan the amount of benefits paid.

Empire’s complaint alleged that McVeigh breached this provision and sought a judgment declaring that pursuant to the Plan, FEHBA, its regulations and federal common law, Empire was entitled to reimbursement from McVeigh for the amount of benefits paid for Decedent’s injuries. McVeigh moved for dismissal of the action on the grounds that, inter alia, the district court lacked subject matter jurisdiction. In response, Empire claimed that the court had jurisdiction under 28 U.S.C. § 1331 because federal common law governed its reimbursement claim.

In the alternative, Empire argued that the Plan itself constituted federal law. District Court Judge Denise Cote rejected both of Empire’s theories and granted McVeigh’s motion to dismiss for lack of subject matter jurisdiction on September 18, 2003. See Empire HealthChoice Assur., 2003 WL 22171693, at *3-*5. DISCUSSION A. We review de novo a district court’s legal conclusions with respect to its subject matter jurisdiction. Gualandi v. Adams, 385 F.3d 236, 240 (2d Cir.2004).

Empire claims that federal jurisdiction exists pursuant to 28 U.S.C. § 1331, which grants federal district courts original jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States.”

Section 1331 jurisdiction — that is, federal question jurisdiction — “exists where a well-pleaded complaint ‘establishes either that federal law creates the cause of action or that the plaintiffs right to relief necessarily depends on resolution of a substantial question of federal law.’ ” Greenberg v. Bear, Stearns & Co., 220 F.3d 22, 25 (2d. Cir.2000) (quoting Franchise Tax Bd. v. Const. Laborers Vacation Trust, 463 U.S. 1, 27-28, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)); see also Marcus v. AT & T Corp., 138 F.3d 46, 52 (2d Cir.1998).

Though the plaintiff is generally “the master of the complaint,” id., a plaintiff cannot create federal jurisdiction under § 1331 simply by alleging a federal claim where in reality none exists. See Perpetual Securities, Inc. v. Tang, 290 F.3d 132, 137 (2d Cir.2002). Subject matter jurisdiction will lie only where the court determines that “ ‘the substance of [the plaintiffs] allegations raises a federal question.’ ” D'Alessio v. New York Stock Exchange, Inc., 258 F.3d 93, 100 (2d Cir.2001) (emphasis omitted) (citation omitted).

The existence of a federal question must be determined solely by reference to the plaintiffs own claim — not by reference to “statements raised in anticipation or avoidance of possible defenses that may be interposed.” Briarpatch Ltd., L.P v. Phoenix Pictures, Inc., 373 F.3d 296, 304 (2d Cir.2004); see also Caterpillar Inc. v. Williams, 482 U.S. 386, 393, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). FEHBA does not provide a federal statutory cause of action for insurance carriers to vindicate their rights under FEHBA-authorized contracts.

Thus, federal jurisdiction exists over this dispute only if federal common law governs Empire’s claims. See Woodward Governor Co. v. Curtiss-Wright Flight Sys., Inc., 164 F.3d 123, 126 (2d Cir.1999) (“It is beyond dispute that if federal common law governs a case, that case presents a federal question within the subject matter jurisdiction of the federal courts, just as if the case were governed by a federal statute.”). The ability of federal courts to fashion federal common law, however, is “severely limited.” In re Gaston & Snow, 243 F.3d 599, 606 (2d Cir.2001); see also O’Melveny & Myers v.

FDIC, 512 U.S. 79, 87, 114 S.Ct. 2048, 129 L.Ed.2d 67 (1994) (stating that the “cases in which judicial creation of a special federal rule would be justified ... are ... few and restricted” (citation and internal quotation marks omitted)). Absent congressional authorization, see Texas Indus, v. Radcliff Materials, Inc., 451 U.S. 630, 641, 101 S.Ct. 2061, 68 L.Ed.2d 500 (1981), courts may only create federal common law where the operation of state law would (1) “ ‘significantly] conflict’ ” with (2) “ ‘uniquely federal interests],’ ” Boyle v. United Techs.

Corp., 487 U.S. 500, 507, 508, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988); see also O’Melveny, 512 U.S. at 87, 114 S.Ct. 2048; Woodward, 164 F.3d at 127. These circumstances were present, for instance, in Boyle, where the Supreme Court held that federal common law provided a defense shielding a federal defense contractor from liability under state law for defective design. 487 U.S. at 509-12, 108 S.Ct. 2510. The “state-imposed duty of care,” the Court found, was “precisely contrary” to a duty imposed by the government contract. Id. at 509, 108 S.Ct. 2510.

Empire argues that its contract dispute with McVeigh satisfies the “uniquely federal interests” prong of Boyle. Reimbursement, Empire explains, directly affects the United States Treasury and the cost of providing health benefits to federal employees. Moreover, Empire contends, Congress has expressed its interest in maintaining uniformity among the states with respect to the benefits of its health plans.

We need not address these arguments, because we find that regardless of the strength or importance of the federal interests at stake, Empire has failed to demonstrate that the operation of New York state law creates “an actual, significant conflict” with those interests. Woodward, 164 F.3d at 127; see also id. (“[I]n disputes between two private parties, federal courts ... have shown a marked reluctance to displace state law by finding a significant conflict with a federal interest.”).

Tellingly, Empire’s briefs on appeal fail to mention a single state law or state-imposed duty that runs contrary to the federal interests asserted in this case. Because it cannot identify any way in which the operation of state law creates an actual conflict, Empire is left to speculate about the various harms that “might” result from state-by-state adjudication of suits brought by insurance carriers under FEHBA-authorized contracts.

Empire argues, for example, that state law would undermine the federal interest in uniformity because enrollees in some states “might” successfully avoid reimbursement while others would have to repay. Empire also contends that uncertainties associated with the application of state law “might” reduce the source of funds available to defray overall costs of paying benefits. These speculations do not suffice to satisfy the conflict prong of Boyle.

See Woodward, 164 F.3d at 127 (“[A]n actual, significant conflict between a federal interest and state law must be specifically shown, and not generally alleged.” (internal quotation marks and citation omitted)). The Fourth Circuit reached a different conclusion in Caudill v. Blue Cross & Blue Shield of North Carolina, Inc., 999 F.2d 74 (4th Cir.1993). The Caudill court found that the application of state law “would result in a patchwork quilt of benefits that varied from state to state under the same contract because of the vast differences in the common law of contracts from state to state.” Id. at 79.

Thus, the court held that the case presented a significant conflict between the federal interest in uniformity and state law. Id. (“[T]he very application of state contract law would undermine the uniformity envisioned by Congress when it delegated the authority to interpret health benefit contracts to OPM.”). The Caudill court, however, cited no sources for its sweeping claim that “vast differences” existed in the common law of contracts among the states. Id. The Supreme Court reached the opposite conclusion less than two years later in a dispute involving the Airline Deregulation Act of 1978.

See American Airlines, Inc. v. Wolens, 513 U.S. 219, 233 n. 8, 115 S.Ct. 817, 130 L.Ed.2d 715 (1995). In Wolens, the Court observed that “[because contract law is not at its core diverse, nonuniform, and confusing,” there was “no large risk, of nonuniform adjudication inherent in [sjtate-court enforcement of the terms of a uniform agreement prepared by an airline and entered into with its passengers nationwide.” Id. (second alteration in original) (internal quotation marks and citations omitted).

In light of Wolens, we see no reason to assume as a general matter that a conflict necessarily exists between the operation of state contract law and the federal interests in uniformity underlying FEHBA. Because Empire has not demonstrated' an “actual, significant” conflict between New York state law and the federal interests underlying FEHBA, see Woodward, 164 F.3d at 127, we hold that the dispute between Empire and McVeigh fails to satisfy the conflict prong of Boyle. B.

We recognize the possibility that at a later stage in the proceedings, á significant conflict might arise between New York state law and the federal interests underlying FEHBA, such that the dispute would satisfy both prongs of Boyle. If, for example,. McVeigh were to defend herself in reliance upon a state law that was meant to advance a particular state policy, Empire could argue that such state law— whether statutory or common law — conflicts with federal interests and requires the application of federal common law. This possibility, however, is insufficient to confer federal jurisdiction.

See Briar-patch Ltd., 373 F.3d at 304 (“The claims established by the well-pleaded complaint must necessarily be determined from the plaintiffs statement of his or her own claim, not including statements raised in anticipation or avoidance of possible defenses that may be interposed.” (emphasis added)); see also Aetna Health Inc. v. Davila, — U.S. -, 124 S.Ct. 2488, 2494, 159 L.Ed.2d 312 (2004); City of Rome v. Verizon Communications Inc., 362 F.3d 168, 177 (2d Cir.2004). Thus, it would be up to the state court to apply federal common law. See Charles Dowd Box Co., Inc. v.

Courtney, 368 U.S. 502, 507-508 & n. 4, 82 S.Ct. 519, 7 L.Ed.2d 483 (1962) (stating that state courts are competent to enforce federal rights and noting that “[ijndeed, Congress has so arranged the limited jurisdiction of federal courts that some federal laws can be enforced only in state courts” (citations omitted)); see also Local 174., Teamsters, Chauffeurs, Warehousemen & Helpers v. Lucas Flour Co., 369 U.S. 95, 103-04, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962) (holding that a state court, exercising jurisdiction over suit arising from collective bargaining agreement must apply federal common law).

By finding that satisfaction of the two-prong Boyle test does not necessarily create federal jurisdiction under 28 U.S.C. § 1331, we again part ways with the Fourth Circuit’s holding in Caudill. The Caudill court conflated the preemption and jurisdiction analyses by holding that a significant conflict with uniquely federal interests was sufficient to confer subject matter jurisdiction on the federal court. See 999 F.2d at 78-79. We agree with the criticism Caudill has received for giving short shrift to the well-pleaded complaint rule. See Goepel v.

Nat’l Postal Mail Handlers Union, 36 F.3d 306, 314-15 (3d Cir.1994) (rejecting Caudill’s reasoning); 15 James Wm. Moore, et al., Moore’s Federal Practice § 103.45[3][c] (3d ed.2004) (commenting that Caudill is “fatally flawed if the validity of the well-pleaded complaint rule ... [is] accepted”). C. Empire also argues — and our dissenting colleague agrees — that federal jurisdiction exists pursuant to FEHBA’s preemption provision, 5 U.S.C. § 8902(m)(1). Before explaining why we disagree, we discuss first a peculiar feature of § 8902(m)(

l) which receives very little judicial attention. Though courts generally decide FEHBA cases as if § 8902(m)(

l) were a preemption provision like any other, see, e.g., Hayes v. Prudential Ins. Co. of Am., 819 F.2d 921, 926 (9th Cir.1987) (discussing earlier version of § 8902(m)); Blue Cross & Blue Shield of Fla., Inc. v. Dep’t of Banking and Fin., 791 F.2d 1501, 1504-05 (11th Cir.1986) (same), the provision is in fact quite unusual, because it provides that certain types of contract terms will “supersede and preempt” state laws in a particular field. 5 U.S.C. § 8902(m)(l). Normally, preemption clauses provide that federal law will preempt state law.

A typical provision might provide for preemption, for example, by expressly stating that the statute’s provisions preempt state law, see, e.g., Employee Retirement Income Security Act (ERISA) § 514(a), 29 U.S.C. § 1144(a); 1976 Copyright Act § 301, 17 U.S.C. § 301(a), or by prohibiting state law from interfering with a policy established in federal law, see, e.g., Communications Act § 253, 47 U.S.C. § 253. Regardless of a given provision’s structure or wording, however, we generally take for granted that it is law, and not a mere contract term, that carries the preemptive force.

See generally Sprint Spectrum L.P. v. Mills, 283 F.3d 404, 414-16 (2d Cir.2002) (summarizing preemption doctrine). Though § 8902(m)(l)’s plain language differs from typical preemption provisions by unambiguously providing for preemption by contract, such a literal reading of the provision is highly problematic, and probably unconstitutional, because only federal law may preempt state and local law.

The constitutionality of federal preemption is, after all, grounded in the Supremacy Clause of the Constitution, which provides that “the Laws of the United States ... shall be the supreme Law of the Land ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const. Art. VI, cl. 2. (emphasis added); see Sprint Spectrum, 283 F.3d at 414-15 (“The foundation of preemption doctrines is the Supremacy Clause, which invalidates state laws that interfere with, or are contrary to, federal law.” (citations, alterations and internal quotation marks omitted)).

There is no constitutional basis for making the terms of contracts with private parties similarly “supreme” over state law. See Arthur D. Little, Inc. v. Comm’r of Health and Hosps., 395 Mass: 535, 481 N.E.2d 441, 452 (1985) (“[T]his court has befen unable to locate authority in this or any other jurisdiction which supports the proposition that a contract to which the Federal government is a party somehow constitutes Federal law for the purposes of the supremacy clause.”).

Taken literally, therefore, FEHBA’s preemption provision may fail to withstand constitutional scrutiny unless FEHBA-au-thorized contracts themselves are “Laws of the United States.” They dre not. “Law” connotes a policy imposed by the government, not a privately-negotiated contract.

See Wolens, 513 U.S. at 229 n. 5, 115 S.Ct. 817 (1995) (finding that “the word series ‘law, rule, regulation, standard, or other provision’ ” as used in a federal statute “connotes official, government-imposed policies, not the terms of a private contract.” (citation and internal quotation marks omitted)); see also id. at 241, 115 S.Ct. 817 (O’Connor, J., concurring in the judgment in part and dissenting in part) (“To be sure, the terms of private contracts are not ‘laws’ .... ”). Under FEH-BA, the government does not impose contract terms as it would impose a law.

Rather, the OPM negotiates the contract terms privately with insurance providers, see generally Doe v. Devine, 703 F.2d 1319, 1321-23 (D.C.Cir.1983), who are under no obligation to enter into the contracts in the first place. Cf. Evanns v. AT & T Corp., 229 F.3d 837, 840 n. 9 (9th Cir.2000) (“ ‘[A] tariff, required by law to be filed, is not a mere contract. It is the law.’ ” (quoting Carter v. Am. Tel. & Tel. Co., 365 F.2d 486, 496 (5th Cir.1966))); Marcus v. AT & T Corp., 138 F.3d 46, 56 (2d Cir.1998) (distinguishing between laws and “mere contracts” (internal quotation marks and citation omitted)).

Empire’s attempt to portray FEHBA contracts as “law” is unavailing. The fact that a literal reading of § 8902(m)(

l) raises serious constitutional problems does not, however, require us to invalidate the provision. “[Wjhere an otherwise acceptable construction of a statute would raise serious constitutional problems,” we may “construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress.” Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Const. Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 99 L.Ed.2d 645 (1988).

This canon of statutory construction, known as “constitutional avoidance,” is grounded in “respect for Congress, which we assume legislates in the light of constitutional limitations.” United States v. Pettus, 303 F.3d 480, 486 (2d Cir.2002) (citation and internal quotation marks omitted). Here, we can reasonably construe § 8902(m)(

l) as requiring that, in cases involving the “terms of any contract under [FEHBA]'which relate to the nature, provision, or extent of coverage or benefits,” federal law “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)(l). This construction is as faithful as constitutionally possible to the provision’s plain language and respects Congress’s stated intent to maintain “uniformity” in FEHBA benefits and to “displace State or local law relating to health insurance or plans.” H.R.Rep.

No. 105-374, at 9, 16 (1997); see also S.Rep. No. 105-257, at 15 (1997). The federal law preempting state law may be federal common law or the FEHBA statute provisions themselves, but it must be law — not contract terms. D. Turning to the effect of § 8902(m)(

l) on the instant case, we disagree with the argument put forth by Empire and the dissent that the provision somehow authorizes by itself the exercise of federal jurisdiction. In our view, § 8902(m)(l), which makes no reference to a federal right of action or to federal jurisdiction, is simply a limited preemption clause that the instant dispute does not trigger. Reading § 8902(m)(

l) as conferring federal jurisdiction over contract disputes between private parties strains the language of the provision and undermines the presumption against federal preemption that should guide our analysis in this case. See Gerosa v. Savasta & Co., Inc., 329 F.3d 317, 323 (2d Cir.2003) (noting that there is an “assumption that Congress does not intend to supplant state law” (citation and internal quotation marks omitted)). Two independent conditions must be satisfied in order to trigger preemption under § 8902(m)(1).

First, preemption only occurs when the FEHBA contract terms at issue “relate to the nature, provision, or extent of coverage or benefits.” 5 U.S.C. § 8902(m)(1). Second, federal law may only preempt state or local laws if those laws “relate[ ] to health insurance or plans.” Id.

Empire completely ignores the existence of this second condition, arguing erroneously that because the contract provisions at issue relate to benefits, they necessarily supersede “all state law.” Without any showing that the dispute implicates a specific state law or state common-law principle “relating] to health insurance,” § 8902(m)(1) does not authorize federal preemption of state law in this case.

Judge Raggi argues in dissent that the case satisfies the second condition for § 8902(m)(1) preemption on the ground that the phrase “state or local law ... which relates to health insurance or plans” encompasses laws of general application that make absolutely no reference to health insurance or plans but are used in a given case to “construe or enforce” FEH-BA plans. Post at 158. In our view, this reading of § 8902(m)(1) renders the second limiting condition meaningless.

This is because every state or local law applied to a dispute satisfying the first condition (that is, every state law applied to a dispute involving a contract term relating to coverage or benefits) will ipso facto affect the construction or enforcement of that term. Thus, under the dissent’s reasoning, FEHBA contract terms will preempt every state or local law so long as the first requirement is satisfied. This strips the second limiting condition of any force whatsoever. Judge Raggi contests this characterization of her analysis, explaining that under her

interpretation, the second limiting condition might still impose meaningful limits on preemption “where general state or local law affects FEHBA coverage or benefits only tangentially, without attempting to construe or enforce those plan terms.” Post at 158. Even in such circumstances, however, the second limiting condition would likely have no meaning that is independent and distinct from the first limiting condition, which requires that the contract terms at issue specifically relate to health coverage in order for preemption to occur. 5 U.S.C. § 8902(m)(1).

In other words, under the circumstances described by Judge Raggi, in which FEHBA coverage is only affected “tangentially,” it is highly unlikely that either condition for § 8902(m)(1) preemption will be met. Thus, Judge Raggi’s argument does not explain how the second limiting condition carries any independent meaning. Perhaps, under Judge Raggi’s

interpretation, the second condition might have independent meaning in a dispute that (1) centers on contract terms specifically relating to health coverage but (2) does not involve the enforcement or construction of those contract terms. We find it difficult, however, to imagine such a ease. In defense of her position, Judge Raggi observes that many Supreme Court and Second Circuit cases construe the term “relates to” quite broadly. See post at 156-57. The cases she cites, however, are not directly applicable because they did not involve FEHBA.

As this Court, our sister circuits and the Supreme Court have all recognized, the precise meaning of the vague term “relates to” depends on the larger statutory context. See, e.g., Gerosa, 329 F.3d at 323 (stating that “ERISA’s nearly limitless ‘relates to’ language offers no meaningful guidelines to reviewing judges,” and that we must therefore “ ‘go beyond the unhelpful text ... and look instead to the objectives of the ERISA statute as a guide to the scope of the state law that Congress understood would survive’ ” (quoting New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins.

Co., 514 U.S. 645, 655-56, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995))); Roach v. Mail Handlers Benefit Plan, 298 F.3d 847, 850 (9th Cir.2002) (“ ‘[Rjelates to’ must be read in the context of the presumption that in fields of traditional state regulation the historic police powers of the States [are] not to be superseded by [a] Federal Act unless that was the clear and manifest purpose of Congress.

Here, this means that we must presume that Congress did not intend [FEHBA] to preempt the quintessentially state-law standards of reasonable medical care, because § 8902(m)(1) does not indicate a clear and manifest intent to preempt this area of state law.” (second and third alterations in original) (citations and internal quotation marks omitted)). The Supreme Court has specifically warned against overly-broad

interpretations of the term, noting that “[i]f ‘relate[s] to’ were taken to extend to the furthest stretch of its indeterminacy, then for all practical purposes pre-emption would never run its course, for really, universally, relations stop nowhere.” Travelers Ins. Co., 514 U.S. at 655, 115 S.Ct. 1671 (alteration, citation and internal quotation marks omitted). To define “relate[s] to” so broadly “would be to read Congress’s words of limitation as mere sham, and to read the presumption against pre-emption out of the law whenever Congress speaks to the matter with generality.” Id. We should be especially reluctant to rely on ERISA-based precedent to justify an expansive

interpretation of FEHBA’s preemption provision, given the fundamental differences between ERISA and FEHBA. ERISA is significantly more comprehensive than FEHBA, in that it contains multiple preemption provisions and a detailed civil enforcement scheme intended to completely supplant state law. See Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 54, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987). The Supreme Court has relied heavily on ERISA’s civil enforcement provisions, as well as those provisions’ unambiguous legislative history, to support holdings that broadly construe ERISA’s preemptive reach.

See Davila, 124 S.Ct. at 2500 (stating that the Court’s understanding of ERISA’s preemptive effect is informed by the “overpowering federal policy” embodied in ERISA’s civil enforcement provision, which was intended to create “an exclusive federal remedy”); Pilot Life, 481 U.S. at 55, 107 S.Ct. 1549 (quoting the ERISA Conference Report’s statement that all suits to enforce benefits rights “are to be regarded as arising under the laws of the United States” (emphasis omitted)); see also Ingersoll-Rand Co. v.

McClendon, 498 U.S. 133, 138, 111 S.Ct. 478, 112 L.Ed.2d 474 (1990) (noting that ERISA’s “deliberately expansive language was designed to establish pension plan regulation as exclusively a federal concern” (citation and internal quotation marks omitted)); Pilot Life, 481 U.S. at 46, 107 S.Ct. 1549 (noting ERISA sponsors’ emphasis on the “breadth and importance of [ERISA’s] preemption provisions”).

Given ERISA’s comprehensive civil enforcement mechanisms and a legislative history “fully confirm[ing]” that ERISA’s remedies were meant to be exclusive, Pilot Life, 481 U.S. at 54, 107 S.Ct. 1549, we reject Empire’s and Judge Raggi’s suggestion that we should rely on ERISA-related precedent to determine the preemptive reach of FEHBA. See Ingersoll-Rand Co., 498 U.S. 133, 111 S.Ct. 478, 112 L.Ed.2d 474; Devlin v. Transp. Communications Int’l Union, 173 F.3d 94, 98 (2d Cir.1999). The non-ERISA cases on which Judge Raggi relies in her dissent similarly fail to justify the excessively broad

interpretation of “relate to” that she favors. In Coregis Insurance Co. v. American Health Foundation, Inc., 241 F.3d 123 (2d Cir.2001), for example, the issue was whether certain lawsuits were “related to” a company’s financial failure within the meaning of an insurance policy. We noted that the “[l]awsuits are related to the Companies’ financial failure by the very wording of the complaints, which explicitly refer to, discuss, and seek redress for that failure.” Id. at 131.

In the instant case, neither Empire nor Judge Raggi has cited any state law that “explicitly refer[s] to” or “diseuss[es]” health insurance or plans. Coregis’s rationale therefore does not apply. To the extent we should rely on case law interpreting preemption provisions appearing in other statutes, we find American Airlines, Inc. v. Wolens, 513 U.S. 219, 115 S.Ct. 817, 130 L.Ed.2d 715 (1995), more relevant and more instructive.

Wolens involved the Airline Deregulation Act (ADA), which bars states from “ ‘enactflng] or enforcing] any law relating to [air carrier] rates, routes, or services.’ ” Id. at 221-22, 115 S.Ct. 817 (quoting 49 U.S.C.App. § 1305(a)(1), now codified as amended at 49 U.S.C. 41713(b)). The plaintiffs in Wol-ens were airline customers who brought state law claims for consumer fraud and breach of contract after the airline retroactively took away their frequent flyer miles.

The Supreme Court held that the consumer fraud claims, which were brought under a state statute, were preempted, but that the breach of contract action was not. The airline had argued that in passing the ADA, Congress provided that questions of the airline’s rights and obligations would be matters of federal and not state law. The Court disagreed, stating: [It is not] plausible that Congress meant to channel into federal courts the business of resolving, pursuant to judicially fashioned federal common law, the range of contract claims relating to airline rates, routes, or services.

The ADA contains no hint of such a role for the federal courts. In this regard, the ADA contrasts markedly with the ERISA, which does channel civil actions into the federal courts, under a comprehensive scheme detailed in the legislation, designed to promote prompt and fair claims settlement. Id. at 232, 115 S.Ct. 817 (citation and internal quotation marks omitted). Adopting this same reasoning, we do not believe that FEHBA reveals a congressional objective to resolve all manner of breach of contract suits relating to the Service Benefit Plan in federal court.

CONCLUSION If Congress intended for this case to be heard in federal court, it could have created a private right of action for suits against FEHBA beneficiaries; it could have vested jurisdiction over these claims in the federal courts; or it could have included an affirmative grant of authority to the federal courts -to create a body of federal common law. Congress did none of these things. The preemption provision does not manifest an intent to supplant all state law with federal common law in cases involving FEHBA-authorized contract provisions.

Section 8902(m)(

l) plainly establishes that only state laws “relat[ing] to health insurance or plans” are subject to preemption. We decline Empire’s suggestion that we read this phrase out of the provision. Moreover, even if federal law is likely to preempt McVeigh’s defenses and thereby to affect the outcome of the case, this is insufficient to create federal jurisdiction. The well-pleaded complaint rule requires that the complaint itself arise under federal law in order for there to be federal jurisdiction. See Briarpatck Ltd., 373 F.3d at 304. Empire’s claims are breach-of-contract claims arising under state law.

There is no indication that state law conflicts meaningfully with or is inadequate to achieve the federal interest in this case. Accordingly, we AFFIRM the district court’s ruling that Empire’s claims arise under state law. . The contract is negotiated between OPM and BCBSA. Federal employees like Joseph McVeigh do not enter into a contract for health benefits with BCBSA or any other Blue Cross and Blue Shield entity, but instead enroll in the Plan pursuant to the contract between BCBSA and OPM.

While OPM is a party to the FEHBA contract, we emphasize that the dispute in this case is between two private parties: Empire and Denise Finn McVeigh. . The provision provides in relevant part: If another person or entity ... causes you to suffer an injury or illness, and if we pay benefits for that injury or illness, you must agree to the following: • All recoveries you obtain (whether by lawsuit, settlement, or otherwise), no matter how described or designated, must be used to reimburse us in full for benefits we paid.

Our share of any recovery extends only to the amount of benefits we have paid or will pay to you or, if applicable, to your heirs, administrators, successors, or assignees. . In Boyle, the Court did not refer to the well-pleaded complaint rule because jurisdiction was based on the parties’ diversity. See 487 U.S. at 502, 108 S.Ct. 2510. . Nothing in this analysis contravenes our decision in Woodward, 164 F.3d 123. Woodward did not go so far as to hold that satisfaction of Boyle provides federal question jurisdiction.

Instead, it held that where the plaintiff fails to satisfy Boyle there is clearly no basis for federal question jurisdiction. There is nothing in the case that precludes us from clarifying that, even in cases in which Boyle is satisfied, courts must still ask the secondary question of whether the federal common law issue appears on the face of the plaintiff's well-pleaded complaint. .

Section 8902(m)(

l) provides: The terms of any contract under this

chapter 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)(l). . In arguing that the contract terms constitute law, Empire relies on Marcus, in which this Court found that federal tariffs filed by AT & T with the FCC were themselves federal law. See 138 F.3d at 56.

Marcus, however, relied on an entire body of law standing for the proposition that "federal tariffs are the law, not mere contracts.” Id. (citation and internal quotation marks omitted). There is no comparable case law surrounding FEHBA-authorized contracts. Moreover, AT & T was required by law to file the tariffs that were at issue in Marcus.

This makes the tariffs fundamentally different from a FEHBA contract, which the government does not impose but rather negotiates with willing insurance companies. .Notably, FEHBA does contain a provision authorizing federal jurisdiction over FEHBA-related civil actions or claims "against the United States.” 5 U.S.C. § 8912 (emphasis added). Of course, the grant of federal jurisdiction over one category of claims does not necessarily strip federal courts of their jurisdiction over another category of claims. See Verizon Maryland, Inc. v. Pub. Serv.

Comm’n, 535 U.S. 635, 643-44, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002). Nevertheless, § 8912 does demonstrate that Congress considered jurisdictional issues in enacting FEHBA and did not hesitate expressly to confer federal jurisdiction where it found it necessary to do so. The OPM has also moved to expand federal jurisdiction. As noted by our dissenting colleague, the OPM modified FEHBA regulations in 1995 to provide that legal actions seeking review of final action by the OPM for a denial of health benefits "must be brought against OPM and not against the carrier or carrier’s subcontractors.” 5 C.F.R. § 890.107.

Read together with 5 U.S.C. § 8912, the new regulation ensures that suits brought by beneficiaries for denial of benefits will land in federal court. There is, however, no analogous regulation opening federal courts to insurance carriers seeking reimbursement from beneficiaries. . We agree with Empire that the District Court erroneously relied on a version of the preemption provision that is no longer in effect. See Empire HealthChoice Assur., 2003 WL 22171693, at *3. Even applying the proper provision, however, Empire's argument fails. .

The suit will certainly trigger FEHBA’s preemption provision at a later stage if McVeigh defends herself by reference, for example, to a state health insurance law. Such a possibility of preemption, however, is insufficient to establish federal jurisdiction. As discussed in

Section B, supra, the well-pleaded complaint rule precludes a party from invoking federal jurisdiction merely because it anticipates a defense that will be preempted by federal law. Briarpatch Ltd.., 373 F.3d at 304; see also Davila, 124 S.Ct. at 2494; City of Rome, 362 F.3d at 177. If McVeigh does not defend in reliance upon some state law relating to health insurance, or in reliance on some state common law principle that would clearly run counter to federal policy, then state law could resolve whether McVeigh has breached her obligations. See Wallis v. Pan Am.

Petroleum Corp., 384 U.S. 63, 71, 86 S.Ct. 1301, 16 L.Ed.2d 369 (1966) (finding no authority to fashion federal common law where “there has been no showing that state law is not adequate to achieve” the federal interest). . If Congress had not wished to limit the types of state laws subject to preemption, it could have quite easily provided that "federal law shall govern the

interpretation and enforcement of contract terms under this

chapter which relate to the nature, provision, or extent of coverage or benefits.” . Judge Raggi’s discussion of ERISA-related precedent on this point does not support her argument, because ERISA contains no provision that is analogous to the first limiting condition contained in 5 U.S.C. § 8902(m)(l). See post at 158 (citing Mackey v. Lanier Collection Agency & Serv., Inc., 486 U.S. 825, 841, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988); New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 660-661, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995)); 29 U.S.C. § 1144(a).

Thus, while the cases cited by Judge Raggi demonstrate that § 8902(m)(l)’s second condition, as she interprets it, might impose meaningful limits on preemption, they do not demonstrate that the second condition imposes any limits not already imposed by the first condition. . Judge Raggi explains that "relate to” is "synonymous with the phrases 'in connection with,’ 'associated with,’ 'with respect to,’ and 'with reference to.' ” Post at 157. The Supreme Court, however, has recognized the limited usefulness of such

definitions. In Travelers Insurance Co., a case involving ERISA, the Court wrote: [We must determine] whether the surcharge laws have a "connection with” the ERISA plans, and here an uncritical literalism is no more help than in trying to construe "relate to.” For the same reasons that infinite relations cannot be the measure of pre-emption, neither can infinite connections.

We simply must go beyond the unhelpful text and the frustrating difficulty of defining its key term, and look instead to the objectives of the ERISA statute as a guide to the scope of the state law that Congress understood would survive. 514 U.S. at 656, 115 S.Ct. 1671. . Furthermore, Judge Raggi may overstate , the degree to which FEHBA's preemption provision is similar to ERISA’s.

In comparing the wording of the two provisions, Judge Raggi omits mention of the first limiting condition of 5 U.S.C. § 8902(m)(1), which requires' that the preempting contract term “relate to ... [health] coverage or benefits.” See post at 158. ERISA’s provision contains no analogous requirement. See 29 U.S.C. § 1144(a); see also note 11, supra. . Judge Raggi also cites Celotex Corp. v. Edwards, 514 U.S. 300, 115 S.Ct. 1493, 131 L.Ed.2d 403 (1995) and Kamagate v. Ashcroft, 385 F.3d 144 (2d Cir.2004). See post at 157.

In interpreting the term "relate to” in Celotex, however, the Supreme Court did not have to contend with the general presumption against federal preemption. On the contrary, the Court analyzed the term with the understanding that "Congress intended to grant comprehensive jurisdiction to the bankruptcy courts so that they might deal efficiently and expeditiously with all matters connected with the bankruptcy estate.” Id. at 308, 115 S.Ct. 1493 (emphasis added) (citations and internal quotation marks omitted).

Kamagate also fails to support Judge Raggi’s argument because it involved a context in which Congress intended to give the term "relate to” an expansive meaning. See Kamagate, 385 F.3d at 154 ("Congress intended to give inclusive meaning in the immigration laws to the phrase 'relating to.’ ”) (quoting In re Beltran, 20 I. & N. Dec. 521, 525-26 (B.I.A.1992)). The Eighth Circuit precedent discussed by Judge Raggi is also distinguishable, see post at 160, because the case involved state law principles that were established in the context of health insurance and that were found to be inconsistent with FEHBA.

See MedCenters Health Care v. Ochs, 26 F.3d 865, 866-67 (8th Cir.1994) (citing Westendorf v. Stasson, 330 N.W.2d 699, 703 (Minn.1983)). . Judge Raggi correctly notes that the ADA, unlike ERISA and FEHBA, was aimed at encouraging competition rather than uniformity. See post at 158-59. Nevertheless, in distinguishing the ADA from ERISA, the Wolens court relied heavily on ERISA’s civil enforcement scheme. 513 U.S. at 232, 115 S.Ct. 817. If this is the key factor distinguishing the ADA from ERISA, then FEHBA would seem to resemble the former more than the latter. .

Judge Raggi cites a House Report stating that the purpose of the 1998 FEHBA amendments was, in part, to "strengthen the case for trying FEHB program claims disputes in Federal courts rather than State courts” and to "completely displace State or local law relating to health insurance or plans.” H.R.Rep. No. 105-374, at 9, 16 (1997); see post at 156. Notably, the Report refers to displacing state and local law "relating to health insurance or plans," and not to generally applicable state law that may have an effect on benefits or coverage in some cases. Id. at 16. (emphasis added).

As for the language that relates to bringing claims in federal court, it is something of a mystery what the authors of the report meant by "strengthen the case.” This ambiguous wording seems to imply a recognition that the 1998 amendments did not guarantee federal jurisdiction. Given that

(1) section 8902(m)(

l) is by its plain and unambiguous terms a preemption provision and not a grant of jurisdiction, and (2) the legislative history provides only limited and equivocal support for a contrary conclusion, we do not find that the committee reports cited by Judge Raggi support her broad reading of § 8902(m)(l). See Padilla v.

Rumsfeld, 352 F.3d 695, 718 (2d Cir.2003) ("If the plain language is unambiguous, judicial inquiry ends, except in rare and exceptional circumstances; and legislative history is instructive only upon the most extraordinary showing of contrary intentions.” (citation and internal quotation marks omitted)), rev'd on other grounds, - U.S. -, 124 S.Ct. 2711, 159 L.Ed.2d 513 (2004). The 1998 amendments certainly do expand the preemptive reach of FEHBA, but § 8902(m)(1) remains a preemption clause, not a grant of federal jurisdiction.