Norvell v. Blue Cross and Blue Shield Association

Filing 183

ORDER ADOPTING REPORT AND RECOMMENDATIONS. The Report and Recommendation entered on July 16, 2019 (Dkt. 178 ) is ADOPTED IN ITS ENTIRETY and the Defendants Motions (Dkts. 116 , 117 , 121 , 127 ) are GRANTED and the case is DISMISSED. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (alw)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
BRUCE NORVELL,
Plaintiff,
v.

Case No. 1:16-cv-00195-BLW
ORDER ADOPTING REPORT
AND RECOMMENDATION

BLUE CROSS AND BLUE SHIELD
ASSOCIATION; BLUE CROSS OF
IDAHO HEALTH SERVICES INC.;
SPECIAL AGENTS MUTUAL BENEFITS
ASSOCIATION; DIRECTOR, OFFICE OF
PERSONNEL MANAGEMENT; OFFICE
OF PERSONELL MANAGEMENT;
SECRETARY, DEPARTMENT OF
HEALTH AND HUMAN SERVICES;
DEPARTMENT OF HEALTH AND
HUMAN SERVICES; CLAIMS
ADMINISTRATION CORP.; CIGNA
HEALTH AND LIFE INSURANCE
COMPANY; CENTERS FOR MEDICARE
AND MEDICAID SERVICES; and FIRST
HEALTH LIFE AND HEALTH
INSURANCE COMPANY,
Defendants.

On July 16, 2019, Chief United States Magistrate Ronald E. Bush issued a
Report and Recommendation (“Report”), recommending that Defendants’ Motions
to Dismiss be granted. (Dkt. 178.) Any party may challenge the Magistrate
Judge’s proposed recommendation by filing written objections within fourteen

ORDER ADOPTING REPORT AND RECOMMENDATION - 1

days after being served with a copy of the Report. 28 U.S.C. § 636(b)(1)(C). The
district court must then “make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is
made.” Id. The district court may accept, reject, or modify in whole or in part, the
findings and recommendations made by the Magistrate Judge. Id.; see also Fed. R.
Civ. P. 72(b).
Plaintiff filed objections to the Report arguing it erred in its conclusions and
findings. (Dkt. 182.) Having reviewed the Plaintiff’s objections, the Court finds
the matter is ripe for its consideration. Fed. R. Civ. P. 72; Local Civ. R. 73.1.
STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court “may accept, reject, or
modify, in whole or in part, the findings and recommendations made by the
magistrate judge.” Where the parties object to a report and recommendation, this
Court “shall make a de novo determination of those portions of the report which
objection is made.” Id. Where, however, no objections are filed the district court
need not conduct a de novo review. To the extent that no objections are made,
arguments to the contrary are waived. See Fed. R. Civ. P. 72; 28 U.S.C. §
636(b)(1) (objections are waived if they are not filed within fourteen days of
service of the Report and Recommendation). “When no timely objection is filed,
the Court need only satisfy itself that there is no clear error on the face of the

ORDER ADOPTING REPORT AND RECOMMENDATION - 2

record in order to accept the recommendation.” Advisory Committee Notes to Fed.
R. Civ. P. 72 (citing Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th
Cir.1974)). In this case, Plaintiff filed objections and the Court has conducted a de
novo review of those portions of the Report as well as the record in this matter.
The Court finds as follows.
DISCUSSION
The factual and procedural background of this case are correctly stated in the
Report and the Court adopts the same. (Dkt. 178.) The dispute concerns the
Plaintiff’s claims seeking declaratory and injunctive relief against Defendants for
their alleged violations of certain federal statutes relating to health insurance
programs and plans; specifically, Defendants’ failure to provide information,
approval of unlawful plans, and otherwise failing to comply with the cited statutes.
(Dkt. 105.) Defendants’ Motions seek to dismiss this case based on lack of
standing, subject matter jurisdiction, agency discretion, lack of a private right of
action, and lack of a statutory violation. The Report concludes that the case should
be dismissed because Plaintiff has failed to establish standing. The Report further
concludes that, even if the Plaintiff had standing, the Plaintiff’s claims should be
dismissed for failure to state a claim upon which relief can be granted. Specifically,
the Report concludes that the relevant statutes do not confer a private right of
action upon the Plaintiff as against the Non-Federal Defendants. Further, the

ORDER ADOPTING REPORT AND RECOMMENDATION - 3

Report concludes that the Plaintiff’s claims against the Federal Defendants are
premised on decisions that are committed to agency discretion.
Plaintiff filed a response to the Report challenging its interpretation of the
relevant statutes and understanding of some facts. (Dkt. 182.) Plaintiff further
contests the Report’s standing analysis. The Plaintiff argues that the continued
failure by Defendants to define necessary terms, specifically “inpatient” care, and
the Plaintiff’s subsequent inability to choose the best plan, due to this lacking
information, is a sufficiently concrete injury to confer standing. (Dkt. 182.)
The Court has reviewed the Report de novo in light of the arguments made
by the Plaintiff in his response and objections. The Court has also conducted a de
novo review of the parties’ briefing on the Motions and the entire record herein.
The Ninth Circuit vacated the previous dismissal of this action and remanded for
consideration in light of its decision in Robins v. Spokeo, Inc., 867 F.3d 1108 (9th
Cir. 2017). (Dkt. 61) The Report carefully examined the standing analysis in
Robins, 867 F.3d at 113. This Court agrees with the Report’s analysis of Robbins
in its entirety. The Court finds the Report correctly characterizes the facts,
circumstances, allegations, and claims made in this case. The Plaintiff has failed to
show an injury-in-fact in this case which leaves him without standing to bring this
action. Moreover, the relevant statutes do not confer a private right of action upon
the Plaintiff to bring his claims against the Non-Federal Defendants. The agency

ORDER ADOPTING REPORT AND RECOMMENDATION - 4

decisions, upon which the Plaintiff’s claims against the Federal Defendants are
premised, are committed to agency discretion foreclosing judicial review. For the
reasons stated in the Report, which this Court adopts in its entirety, the Court finds
the Defendants’ Motions to Dismiss should be granted. In reaching this
conclusion, the Court is mindful of the fact that the Plaintiff is a pro se litigant.
Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014); Blaisdell v. Frappiea, 729
F.3d 1237, 1241 (9th Cir. 2013).
ORDER
NOW THEREFORE IT IS HEREBY ORDERED that the Report and
Recommendation entered on July 16, 2019 (Dkt. 178) is ADOPTED IN ITS
ENTIRETY and the Defendants’ Motions (Dkts. 116, 117, 121, 127) are
GRANTED and the case is DISMISSED.

DATED: August 16, 2019

_________________________
B. Lynn Winmill
U.S. District Court Judge

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