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Broselow v. Fisher

February 11, 2003

PETER BROSELOW, ON HIS OWN BEHALF AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; MARY A. BROUGHTON, ON HER OWN BEHALF AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; ALFONSO BROUGHTON, ON HIS OWN BEHALF AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, APPELLANTS
v.
D. MICHAEL FISHER, ATTORNEY GENERAL; FEATHER O. HOUSTON, SECRETARY OF THE PENNYSLVANIA DEPARTMENT OF PUBLIC WELFARE; PEG DIERKERS, DEPUTY SECRETARY FOR PUBLIC WELFARE FOR MEDICAL ASSISTANCE PROGRAMS; CITIBANK N.A.



Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil Action No. 00-cv-00493) District Judge: Honorable Louis H. Pollak

Before: Roth, Ambro and RENDELL,*fn1 Circuit Judges

The opinion of the court was delivered by: Roth, Circuit Judge

As amended February 20, 2003.

PETER BROSELOW, ON HIS OWN BEHALF AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; MARY A. BROUGHTON, ON HER OWN BEHALF AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; ALFONSO BROUGHTON, ON HIS OWN BEHALF AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, APPELLANTS
v.
D. MICHAEL FISHER, ATTORNEY GENERAL; FEATHER O. HOUSTON, SECRETARY OF THE PENNYSLVANIA DEPARTMENT OF PUBLIC WELFARE; PEG DIERKERS, DEPUTY SECRETARY FOR PUBLIC WELFARE FOR MEDICAL ASSISTANCE PROGRAMS; CITIBANK N.A.

Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil Action No. 00-cv-00493) District Judge: Honorable Louis H. Pollak

Antonio Ponvert, III, Esquire (Argued) Koskoff, Koskoff & Bieder, PC 350 Fairfield Avenue, 5th Floor Bridgport, CT 06604

Edward B. McDaid, Esquire McDaid, Flum & Bloom 2001 Market Street Two Commerce Sq., 32nd Floor Philadelphia, PA 19103 Counsel For Appellants

Mike Fisher Attorney General Joel M. Ressler (Argued) Chief Deputy Attorney General Chief, Tobacco Enforcement Section Office of Attorney General 15th Floor, Strawberry Square Harrisburg, PA 17120 Counsel For Appellees

Before: Roth, Ambro and RENDELL,*fn1 Circuit Judges

The opinion of the court was delivered by: Roth, Circuit Judge

PRECEDENTIAL

Argued on August 1, 2002

OPINION OF THE COURT

In 1998, a number of States, including the Commonwealth of Pennsylvania, settled their lawsuits against the major tobacco companies. Under the Tobacco Settlement, the Tobacco Companies agreed to pay the Commonwealth of Pennsylvania more than $11 billion. Plaintiffs, a class of Pennsylvania Medicaid recipients who have various smoking-related illnesses, believe that a provision of the Medicaid Act, 42 U.S.C. S 1396k, entitles them to part of the Tobacco Settlement. They contend that the Commonwealth recovered the Tobacco Settlement funds under an assignment from them. Accordingly, they assert that pursuant to the provisions of S 1396k(b) they are individuals to whom the remainder of the amount collected should be paid.

The District Court dismissed plaintiffs' action against the Commonwealth, finding that the Eleventh Amendment barred the suit. We will affirm that ...


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