                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                 FOR THE FOURTH CIRCUIT


VICTOR RIEMER; STEPHEN MARX;            
JANET MARX,
               Plaintiffs-Appellants,
                  v.                               No. 98-1136
COLUMBIA MEDICAL PLAN,
INCORPORATED,
              Defendant-Appellee.
                                        
           Appeal from the United States District Court
             for the District of Maryland, at Baltimore.
          Benson E. Legg, District Judge. (CA-96-2544-L)

                       Argued: January 25, 1999

                       Decided: August 8, 2002

   Before WIDENER and MURNAGHAN,* Circuit Judges, and
              HAMILTON, Senior Circuit Judge.



Remanded by unpublished per curiam opinion.


                              COUNSEL

ARGUED: Frank Paul Bland, Jr., TRIAL LAWYERS FOR PUBLIC
JUSTICE, Washington, D.C., for Appellants. Ralph S. Tyler,

  *Judge Murnaghan heard oral argument in this case but died prior to
the time the decision was filed. The decision is filed by a quorum of the
panel. 28 U.S.C. § 46(d).
2                RIEMER v. COLUMBIA MEDICAL PLAN
HOGAN & HARTSON, L.L.P., Baltimore, Maryland, for Appellee.
ON BRIEF: Sarah Posner, TRIAL LAWYERS FOR PUBLIC JUS-
TICE, Washington, D.C.; Kieron F. Quinn, Richard S. Gordon, LAW
OFFICE OF KIERON QUINN, Baltimore, Maryland; Bryant L.
Welch, BRYANT L. WELCH & ASSOCIATES, Potomac, Maryland;
Robert K. Jenner, FREEMAN & JENNER, P.C., Rockville, Mary-
land; Bruce M. Plaxen, Blaine Kolker, PLAXEN & ADLER, P.A.,
Columbia, Maryland, for Appellants. George Beall, Heather H.P.
Vovakes, HOGAN & HARTSON, L.L.P., Baltimore, Maryland, for
Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                             OPINION

PER CURIAM:

   Victor G. Riemer and Stephen and Janet Marx, members of Colum-
bia Medical Plan, brought suit in the Circuit Court of Howard County,
Maryland against Columbia Medical Plan claiming that Riemer had
received $10,000 as a result of an automobile accident and that the
Marxes had received $18,000 on behalf of their minor son as the
result of an automobile accident and that against such sums Columbia
Medical Plan had asserted subrogated interests as a result of medical
or health care treatment or services rendered by Columbia in connec-
tion with the said accidents. Riemer and Mr. and Mrs. Marx sued on
behalf of a class of all persons who "(1) are or have been members
or insureds of COLUMBIA MEDICAL PLAN; (2) have received
medical or health care treatment or services from COLUMBIA MED-
ICAL PLAN; and (3) have been notified by COLUMBIA MEDICAL
PLAN that it had a lien against or subrogation interest in any money
that the members or insureds had received from the third party."
Excluded from the class are federal government employees who are
insureds under contracts governed by the Federal Employee Health
Benefits Act, 5 U.S.C. § 8901 et seq., and also individuals who "hold
                  RIEMER v. COLUMBIA MEDICAL PLAN                     3
[employment] or have ever been" employees of Columbia Medical
Plan and spouses, children, siblings and children of such individuals.

   Maryland statutes in effect at the time barred such subrogated
rights. See Md. Health-General Code Ann. § 19-701, 710. Section 19-
701(f)(3) provided "except for any co-payment or deductible arrange-
ment (an HMO) is compensated only on a predetermined periodic rate
basis," and § 19-710(o) provided that "individual enrollees and sub-
scribers and health maintenance organizations shall not be liable to
any health care provider for any covered services provided to the
enrollee or subscriber."

   Columbia removed the case to the district court claiming federal
question jurisdiction and claimed that the Maryland statutory provi-
sions preventing subrogation were preempted by ERISA. After a
series of motions, hearings and argument, the district court entered the
order which is appealed from, A. 190, which in effect granted Colum-
bia’s motion to dismiss for the claims of the class of persons who are
covered by Columbia plans coming under ERISA, and remanded to
the state court the claims of the class of persons whose Columbia
plans are not covered by ERISA.

   We have encountered several difficulties in the consideration of
this case, the principal one of which is that we are unable to ascertain
with any degree of reasonable certainty to which class, if any, of
plaintiffs involved in this case, the named plaintiffs, Victor Riemer,
Stephen Marx and Janet Marx, belong. Even if it may be assumed
from their notice of appeal, because they have appealed, that they are
members of an employee benefit plan governed by ERISA, 29 U.S.C.
§§ 1001, et seq., we cannot determine from the record whether they
are members of an ERISA plan which would permit subrogation by
Columbia or which would not permit subrogation by Columbia. That
difference is demonstrated by the case of FMC Corp. v. Holliday, 498
U.S. 52 (1990), in which the Court held that self-funded ERISA plans
were not deemed to be the business of insurance under the deemer
clause of ERISA, 29 U.S.C. § 1144(b)(2)(B), while an insured
employee benefit plan under ERISA may be regulated by State law.
29 U.S.C. § 1144(b)(2)(A). And there are different types of self-
funded plans. Cf. American Medical Security Inc., et al. v. Bartlett,
etc., 111 F.3d 358 (4th Cir. 1997), and also Health South Rehabilita-
4                 RIEMER v. COLUMBIA MEDICAL PLAN
tion Hospital v. American National Red Cross, et al., 101 F.3d 1005
(4th Cir. 1996).

   As noted, what kind of plan, if any, other than a Columbia Medical
Plan, to which the named plaintiffs belong is not shown by the record
with any degree of reasonable certainty. In that connection we also
note that there has been no order under Fed. R. Civ. P. 23(c)(1) deter-
mining whether the case is to be maintained as a class action. Neither
has there been any description of any class, unless it be in the order
appealed from, describing as a putative class of plaintiffs those whose
membership in the health care plan of the defendant Columbia is not
governed by ERISA. While this order bears on the case, the question
is whether Columbia is entitled to subrogation rights on account of
certain payments it has made on account of certain medical expenses
of certain of its members, not merely whether or not the Columbia
Medical Plan is an employee benefit plan under ERISA.

   The case must be remanded to the district court for further proceed-
ings which will include, at least, ascertaining the relation of each of
the named plaintiffs to the Columbia Medical Plan. Are they employ-
ees of employers whose employee benefit plans include Columbia
Medical Plan as medical benefits insurance, or is Columbia Medical
Plan an administrator of a self-funded employee benefit plan, or are
they individuals who have subscribed to Columbia Medical Plan for
medical benefits insurance, or is there some other relation the named
plaintiffs have to Columbia Medical Plan?

   At this point, it is worthwhile to note that "[a] litigant must be a
member of a class which he or she seeks to represent at the time the
class action is certified by the district court." Holt v. Moore, 541 F.2d
460, 462 (4th Cir. 1976), quoting Sosna v. Iowa, 419 U.S. 393, 403
(1975).

                                                           REMANDED
