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IN RE LEWIS

April 28, 1981

In the Matter of the Application of Albert B. LEWIS, as Superintendent of Insurance of the State of New York, for an order to take possession of the property and rehabilitate Manhattan Health Plan, Inc.


The opinion of the court was delivered by: LEVAL

OPINION AND ORDER

This action was begun in New York State Supreme Court and removed by the defendant, the Secretary of the United States Department of Health and Human Services ("the Secretary"), to federal court. The Secretary moves to vacate a temporary restraining order entered in the state court on the application of plaintiff, the Superintendent of Insurance of the State of New York ("the Superintendent").

 The Superintendent moves to remand the action to the New York state court, and moves also for an injunction restraining the Secretary from revoking the Health Department's certification of Manhattan Health Plan.

 The facts are not in dispute. Manhattan Health Plan ("MHP") was a federally qualified health maintenance organization ("HMO"). Through 1979 and 1980 MHP's financial status was investigated, and in 1981 MHP was threatened with revocation of its federal qualification by reason of its inadequate financing. On March 6, 1981 MHP brought suit in this court to enjoin the Secretary from revoking its federal qualification, MHP, Inc. v. Schweiker, 81 Civ. 1312 (PNL). On March 13, 1981 I denied MHP's application for a temporary restraining order and preliminary injunction.

 On April 1, the Secretary's representative, the Director of the Office of Health Maintenance Organizations, revoked MHP's federal qualification.

 The same day the Superintendent of Insurance of the State of New York filed, in New York State Supreme Court, for an Order of Rehabilitation of MHP under Article 16 of New York State's Insurance Law. The state court adjudged MHP to be insolvent, and granted the Order of Rehabilitation, providing that the Superintendent was to take possession of MHP, conduct its business, and seek to remove the causes of its financial problems. The Order also enjoined all persons from doing or permitting to be done any act or thing which might waste MHP's assets.

 On April 6, 1981 in the New York State court the Superintendent applied for and was granted a temporary restraining order enjoining the Secretary from revoking MHP's federal qualification, or from giving effect to any revocation of qualification.

 The next day, April 7, the Secretary removed the entire rehabilitation proceedings to this court pursuant to 28 U.S.C. §§ 1441, 1442(a)(1) and 1446. The motions now pending were then made in this court.

 On April 13, at oral argument the parties agreed under 28 U.S.C. § 1441(c) to remand to state court the rest of the rehabilitation proceedings, not including the restraining order against the Secretary and the motions addressed to it.

 I conclude that the restraining order against the Secretary was properly removed to this court; the Superintendent's motion to remand it is denied. The temporary restraining order is hereby vacated, and the Superintendent's motion for a preliminary injunction against the Secretary is denied.

 Removal Jurisdiction

 The Superintendent contends the case was not properly removed to federal court. The Secretary primarily relies on 28 U.S.C. § 1442(a)(1) which provides:

 
(a) A civil action or criminal prosecution commenced in a State court against any of the following ...

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