A May 26 FoxNews.com article falsely claimed that the Supreme Court has never affirmed the outcome and reasoning of an opinion written by Supreme Court nominee Judge Sonia Sotomayor that it has reviewed. The article stated: “Sotomayor has a record of being rebuffed by the high court. Of the six decisions she was a part of that came before the high court, five were reversed. In the sixth, the court disagreed with Sotomayor's reasoning.” In fact, in Empire Healthchoice Assurance, Inc. v. McVeigh (2005), the Supreme Court affirmed Sotomayor's majority opinion and its reasoning.

From Sotomayor's January 14, 2005, majority opinion in Empire Healthchoice Assurance, Inc. v. McVeigh:

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 administratrix 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 " 'significant[ly] conflict' " with “uniquely federal interest[s].” Boyle v. United Techs. Corp., 487 U.S. 500, 507, 508 (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.

[...]

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 “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 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.

From Justice Ruth Bader Ginsburg's majority opinion in Empire Healthchoice Assurance, Inc. v. McVeigh:

The Federal Employees Health Benefits Act of 1959 (FEHBA), 5 U. S. C. §8901 et seq. (2000 ed. and Supp. III), establishes a comprehensive program of health insurance for federal employees. The Act authorizes the Office of Personnel Management (OPM) to contract with private carriers to offer federal employees an array of health-care plans. See §8902(a) (2000 ed.). Largest of the plans for which OPM has contracted, annually since 1960, is the Blue Cross Blue Shield Service Benefit Plan (Plan), administered by local Blue Cross Blue Shield companies. This case concerns the proper forum for reimbursement claims when a plan beneficiary, injured in an accident, whose medical bills have been paid by the plan administrator, recovers damages (unaided by the carrier-administrator) in a state-court tort action against a third party alleged to have caused the accident.

FEHBA contains a preemption clause, §8902(m)(1), displacing state law on issues relating to “coverage or benefits” afforded by health-care plans. The Act contains no provision addressing the subrogation or reimbursement rights of carriers. Successive annual contracts between OPM and the Blue Cross Blue Shield Association (BCBSA) have obligated the carrier to make “a reasonable effort” to recoup amounts paid for medical care. App. 95, 125. The statement of benefits distributed by the carrier alerts enrollees that all recoveries they receive “must be used to reimburse the Plan for benefits paid.” Id., at 132; see also id., at 146, 152.

The instant case originated when the administrator of a Plan beneficiary's estate pursued tort litigation in state court against parties alleged to have caused the beneficiary's injuries. The carrier had notice of the state-court action, but took no part in it. When the tort action terminated in a settlement, the carrier filed suit in federal court seeking reimbursement of the full amount it had paid for the beneficiary's medical care. The question presented is whether 28 U. S. C. §1331 (authorizing jurisdiction over “civil actions arising under the ... laws ... of the United States”) encompasses the carrier's action. We hold it does not.

FEHBA itself provides for federal-court jurisdiction only in actions against the United States. Congress could decide and provide that reimbursement claims of the kind here involved warrant the exercise of federal-court jurisdiction. But claims of this genre, seeking recovery from the proceeds of state-court litigation, are the sort ordinarily resolved in state courts. Federal courts should await a clear signal from Congress before treating such auxiliary claims as “arising under” the laws of the United States.

[...]

The dissent describes this case as pervasively federal, post, at 1, and “the provisions ... here [as] just a few scattered islands in a sea of federal contractual provisions,” post, at 9. But there is nothing “scattered” about the provisions on reimbursement and subrogation in the OPM-BCBSA master contract. See supra, at 3-4. Those provisions are linked together and depend upon a recovery from a third party under terms and conditions ordinarily governed by state law. See infra, at 17.4 The Court of Appeals, whose decision we review, trained on the matter of reimbursement, not, as the dissent does, on FEHBA-authorized contracts at large. So focused, the appeals court determined that Empire has not demonstrated a “significant conflict ... between an identifiable federal policy or interest and the operation of state law.” 396 F. 3d, at 150 (Sack, J., concurring), quoting Boyle, 487 U. S., at 507)); see 396 F. 3d, at 140-141. Unless and until that showing is made, there is no cause to displace state law, much less to lodge this case in federal court.

As an appellate court judge, Sotomayor wrote the majority opinion in five cases that, as of today, have been decided by the Supreme Court. The Supreme Court reversed three of those five decisions. In two of those three reversals, at least three of the dissenting justices agreed with her holding.

• In an October 6, 2000, opinion in Malesko v. Correctional Services Corp. (CSC), Sotomayor held:

The district court did not explain why [FDIC v.] Meyer's holding regarding federal agencies precluded a Bivens claim against CSC, which is not a federal agency. Reviewing this question de novo, we now hold that a private corporation acting under color of federal law may be subject to a Bivens claim.

The Supreme Court reversed in Malesko v. Correctional Services Corp (2001), but Justices John Paul Stevens, David Souter, Ginsburg, and Stephen Breyer agreed with Sotomayor's holding in their dissent:

The parties before us have assumed that respondent's complaint has alleged a violation of the Eighth Amendment. The violation was committed by a federal agent -- a private corporation employed by the Bureau of Prisons to perform functions that would otherwise be performed by individual employees of the Federal Government. Thus, the question presented by this case is whether the Court should create an exception to the straightforward application of Bivens and Carlson, not whether it should extend our cases beyond their “core premise,” ante, at 9. This point is evident from the fact that prior to our recent decision in FDIC v. Meyer, 510 U.S. 471 (1994), the Courts of Appeals had consistently and correctly held that corporate agents performing federal functions, like human agents doing so, were proper defendants in Bivens actions.

Meyer, which concluded that federal agencies are not suable under Bivens, does not lead to the outcome reached by the Court today.

• In a January 25, 2007, opinion in Riverkeeper, Inc. v. U.S. Environmental Protection Agency, Sotomayor held, in relevant part:

Petitioners here challenge a rule promulgated by the Environmental Protection Agency (“the EPA” or “the Agency”) pursuant to section 316(b) of the Clean Water Act (“CWA” or “the Act”), 33 U.S.C. § 1326(b), that is intended to protect fish, shellfish, and other aquatic organisms from being

harmed or killed by regulating “cooling water intake structures” at large, existing power producing facilities.

For the reasons that follow, we conclude that the statute's “best technology available” [BTA] standard permits cost-effectiveness considerations to influence the choice among technologies whose performance does not essentially differ from the performance of the best-performing technology whose cost the industry reasonably can bear, but that the statute does not permit the EPA to choose BTA on the basis of cost-benefit analysis. As we explain below, however, the record is unclear as to the basis for the EPA's selection of the suite of technologies as BTA, and we therefore remand for clarification of the basis for the Agency's decision and potentially for a reassessment of BTA.

The Supreme Court reversed in Entergy Corp. v. Riverkeeper, Inc. (2008). However, Justices Stevens, Souter, and Ginsburg dissented, agreeing with Sotomayor:

Section 316(b) of the Clean Water Act (CWA), 33 U. S. C. §1326(b), which governs industrial powerplant water intake structures, provides that the Environmental Protection Agency (EPA or Agency) “shall require” that such structures “reflect the best technology available for minimizing adverse environmental impact.” The EPA has interpreted that mandate to authorize the use of cost-benefit analysis in promulgating regulations under §316(b). For instance, under the Agency's interpretation, technology that would otherwise qualify as the best available need not be used if its costs are “significantly greater than the benefits” of compliance. 40 CFR §125.94(a)(5)(ii)(2008).

Like the Court of Appeals, I am convinced that the EPA has misinterpreted the plain text of §316(b). Unless costs are so high that the best technology is not “available,” Congress has decided that they are outweighed by the benefits of minimizing adverse environmental impact. Section 316(b) neither expressly nor implicitly authorizes the EPA to use cost-benefit analysis when setting regulatory standards; fairly read, it prohibits such use.

As Media Matters for America has previously documented, some media outlets have advanced without challenge the charge that Sotomayor's reversals, which have been reported as three of five cases, or 60 percent, are “high.” But the Supreme Court has reversed more than 60 percent of the federal appeals court cases it considered each year since 2004.

From the May 26 FoxNews.com article:

Sotomayor has a record of being rebuffed by the high court. Of the six decisions she was a part of that came before the high court, five were reversed. In the sixth, the court disagreed with Sotomayor's reasoning.

Senior administration officials said they have no concerns about the reversal rate or Sotomayor's position in the firefighter case. But that and other cases are now ripe for analysis.