Argued: May 1, 2019
from the United States District Court for the Western
District of Tennessee at Memphis. No. 2:17-cv-02793-Thomas L.
Parker, District Judge.
Flanagan, CONSUMER WATCHDOG, Los Angeles, California, for
Kim, REED SMITH LLP, Washington, D.C., for Appellee.
Flanagan, CONSUMER WATCHDOG, Los Angeles, California, Edith
M. Kallas, WHATLEY KALLAS, LLP, New York, New York, Alan M.
Mansfield, WHATLEY KALLAS, LLP, San Diego, California, Jerry
Martin, Seth M. Hyatt, BARRETT JOHNSTON MARTIN &
GARRISON, LLC, Nashville, Tennessee, for Appellant.
Kim, REED SMITH LLP, Washington, D.C., Bryan M. Webster,
Abraham Judson Souza, REED SMITH LLP, Chicago, Illinois, for
Before: GUY, SUTTON, and NALBANDIAN, Circuit Judges.
SUTTON, CIRCUIT JUDGE.
similarly situated people differently goes to the heart of
invidious discrimination. But treating differently situated
people differently usually counts as equal justice under law.
Today's case involves the second scenario in the context
of an application of the antidiscrimination provisions of the
Affordable Care Act.
Doe receives HIV medicine through a health care plan
administered by BlueCross BlueShield of Tennessee. Although
Doe would like to pick up his medicine at his local pharmacy,
his plan requires him, and anyone else who uses certain
high-cost drugs, to get his medicine by mail or at a
specialty pharmacy. Frustrated by that requirement, Doe sued
BlueCross for discriminating against him on the basis of
disability and for breaching their contract. The district
court rejected the claims as a matter of law. We affirm.
Doe is HIV-positive and takes Genvoya to keep his condition
under control. While advances in HIV/AIDS research continue
to improve treatment for the disease, the most effective
medicines can be expensive. Doe receives health insurance
from BlueCross. Happily for him, the plan covers Genvoya.
for him, BlueCross imposes requirements on where individuals
obtain the medication. Doe originally bought Genvoya from his
local pharmacy. But after February 2017, the pharmacy told
him that BlueCross wouldn't pay for the medication there
any longer. BlueCross requires beneficiaries to obtain
specialty medicines-usually high-cost medicines for chronic
and serious diseases-from a specialty pharmacy network if
they want to pay in-network (read lower) prices. That meant
Doe could fill the HIV prescription only through mail order
or by picking it up at certain brick-and-mortar pharmacies.
So long as Doe used the specialty pharmacy network, his
co-pay for each monthly batch of Genvoya ...