Owens v. Blue Cross and Blue Shield of Montana
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 30 . IT IS FURTHER ORDERED that Plaintiff Alan Owenss Motion to Remand 15 is DENIED. Signed by Judge Brian Morris on 1/10/2017. (TLO)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
ORDER ADOPTING FINDINGS AND
HEALTH CARE SERVICE CORP.,
Plaintiff Alan Owens filed a Motion to Remand claiming that the Court
lacks jurisdiction over the matter at issue because the Federal Officer Removal
Statute does not apply and because federal common law does not govern the
insurance policy HCSC provided to Mr. Owens. (Doc. 13.) United States
Magistrate Judge John Johnston entered Findings and Recommendations in this
matter on December 16, 2016. (Doc. 30.) Neither party filed objections.
When a party makes no objections, the Court need not review de novo the
proposed Findings and Recommendations. Thomas v. Arn, 474 U.S. 140, 149-52
(1986). This Court will review Judge Johnston’s Findings and Recommendations,
however, for clear error. McDonnell Douglas Corp. v. Commodore Bus. Mach.,
Inc., 656 F.2d 1309, 1313 (9th Cir. 1981).
Judge Johnston recommended that the Court deny Mr. Owens’ Motion to
Remand. (Doc. 30 at 13.) Judge Johnston determined, however, that this action
lacks federal question jurisdiction. Judge Johnston cited to a United States
Supreme Court opinion in support of this conclusion. Empire HealthChoice
assurance, Inc. v. McVeigh, 547 U.S. 677 (2006). The Court in Empire held that
federal common law does not govern the insurance plan at issue in this case. Id.
Judge Johnston likewise concluded that federal common law does not govern the
Plan. This conclusion precludes federal question jurisdiction in this Court.
Judge Johnston determined that the Court possesses jurisdiction under the
Federal Officer Removal statute. (Doc. 30 at 8-12.) Under the Federal Officer
Removal Statute, Congress allows for the removal of civil actions against entities
acting under a federal officer or agency for, or relating to, any act the entity
commits under color of federal office. 28 U.S.C. § 1442(a)(1). The controlling
issue with respect to the statute’s applicability in this case is whether the defendant
acted under color of federal office. Judge Johnston concluded that HCSC acted
under the Office of Personnel Management (OPM), a federal agency. (Doc. 30 at
12.) Judge Johnston consequently determined that the Federal Officer Removal
Statute applies to the case at issue.
The Court has reviewed Judge Johnston’s Findings and Recommendations
for clear error. The Court finds no error in Judge Johnston’s Findings and
Recommendations, and adopts them in full. The Federal Officer Removal Statute
applies to, and allows for, the removal of this case to a federal court.
IT IS ORDERED that Judge Johnston’s Findings and Recommendations
(Doc. 30) is ADOPTED IN FULL.
IT IS FURTHER ORDERED that Plaintiff Alan Owens’s Motion to
Remand (Doc. 13) is DENIED.
DATED this 10th day of January, 2017.
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