concurring:
I join with Judge Luttig insofar as he holds that the district court erred in determining that West Virginia’s provider tax was preempted by section 8909(f). I further agree that the case before us is readily distinguishable from Health Maint. Org. of New Jersey v. Whitman, 72 F.3d 1123 (3d Cir.1995), and Travelers Ins. Co. v. Cuomo, 14 F.3d 708 (2d Cir.1993), for the reason he ascribes: the taxes in those cases were imposed on carriers, not providers, in contravention of federal law. Here, the West Virginia provider tax is imposed on the gross receipts of providers, and is in no way aimed at carriers. In light of a plain reading of section 8909(f), the provider tax is not subject to preemption. The mere fact that a provider may opt to pass through the cost it bears to carriers, including FEHBP carriers, does not, in my judgment, transform the West Virginia provider tax into an illicit indirect imposition of a state tax upon the FEHBP Fund.