Norvell v. Blue Cross and Blue Shield Association

Filing 56

ORDER ONE REPORT AND RECOMMENDATIONS. IT IS HEREBY ORDERED that the Report and Recommendation entered on February 2, 2016 (Dkt. 51 ) is ADOPTED IN ITS ENTIRETY and the Defendants' Motions (Dkt. 10 , 27 ) are GRANTED and the case is DISMISSED. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (km)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
BRUCE NOVELL,
Plaintiff,

Case No. 1:16-CV-00195-EJL-REB

v.
BLUE CROSS AND BLUE SHIELD
ASSOCIATION; BLUE CROSS OF
IDAHO HELATH SERVICE, INC.;
SPECIAL AGENTS MUTUAL
BENEFIT ASSOCIATION;
DIRECTOR, OFFICE OF PERSONNEL
MANAGEMENT; SECRETARY,
DEPARTMENT OF HEALTH AND
HUMAN SERVICES; and
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,

ORDER ON REPORT AND
RECOMMENDATION

Defendants.
On February 2, 2017, Chief United States Magistrate Ronald E. Bush issued a
Report and Recommendation (“Report”), recommending that Defendants’ Motion to
Dismiss and Motion for Judgment on the Pleadings be granted. (Dkt. 51.)1 Any party may
challenge the Magistrate Judge’s proposed recommendation by filing written objections
within fourteen 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

1 The Magistrate Judge also issued an Order on several other motions. (Dkt. 52.)

ORDER ON REPORT AND RECOMMENDATION- 1

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. 53.) The Defendants responded to the objections and the matter is ripe for
this Court’s 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 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 has also
reviewed the entire Report and record for clear error. The Court finds as follows.

ORDER ON REPORT AND RECOMMENDATION- 2

DISCUSSION
The factual and procedural background of this case are correctly stated in the Report
and this Court adopts the same. (Dkt. 51.) 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. 1.) Defendants’ Motions seek to dismiss this
case based on standing, ripeness, sovereign immunity, res judicata, and/or collateral
estoppel. The Report concludes the case should be dismissed because Plaintiff has failed
to establish standing and because the action is procedurally barred as the allegations,
claims, and injuries raised here are identical to those brought in a prior action where
Plaintiff also failed to establish standing. (Dkt. 51.)
Plaintiff filed a response to the Report challenging its characterization of his claims.
(Dkt. 53.) Plaintiff further argues he has established an injury in fact for standing purposes;
i.e. the continued failure by Defendants to provide information to plan enrollees, in
particular with regard to the definitions of “inpatient” and “outpatient” care and
information needed in order for consumers to choose the best plan for their circumstances.
(Dkt. 53.) Plaintiff also objects to the conclusion that the claims are barred by res judicata.
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. Having done so, this Court
ORDER ON REPORT AND RECOMMENDATION- 3

agrees with the Report=s discussion of the law, analysis, conclusions, and recommendation.
The Court finds the Report correctly characterizes the facts, circumstances, allegations, and
claims made in this case as well as those made in the prior case. Plaintiff has again failed
to show an injury in fact in this case which leaves him without standing to bring this action.
Moreover, Plaintiff is procedurally barred from relitigating the standing question. The
Complaint in this case makes the same allegations and raises the same claims and injuries
as in the prior case which was dismissed for lack of standing. For the reasons stated in the
Report, which this Court adopts in its entirety, the Court finds the Defendants’ Motion to
Dismiss and Motion for a Judgment on the Pleadings 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 February 2, 2016 (Dkt. 51) is ADOPTED IN ITS
ENTIRETY and the Defendants’ Motions (Dkt. 10, 27) are GRANTED and the case is
DISMISSED.
March 02, 2017

ORDER ON REPORT AND RECOMMENDATION- 4