Pellicano v. The Office of Personnel Management

Filing 17

ORDER ADOPTING REPORT AND RECOMMENDATIONS ; ORDER REFERRING CASE to Magistrate Judge Joseph F. Saporito, Jr; ; ORDER STAYING CASE; granting 5 Motion to Remand; granting in part and denying in part 6 Motion to Dismiss; adopting 15 Report and Recommendations. counsel for the defendant shall apprise the court by letter every three (3) months of the status of the administrative proceedings.(See order for full details).Signed by Honorable Malachy E Mannion on 2/9/18. (bs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
MICHAEL V. PELLICANO,
Plaintiff
v.

:
:

CIVIL ACTION NO. 3:17-0698

:

THE OFFICE OF PERSONNEL
MANAGEMENT, INSURANCE
OPERATIONS, HEALTH
INSURANCE II,

(MANNION, D.J.)
(SAPORITO, M.J.)

:
:
:

Defendant
:
ORDER
Pending before the court is the report of Magistrate Judge Joseph F.
Saporito, Jr. (Doc. 15). The plaintiff has filed limited objections to Judge
Saporito’s report. (Doc. 16). Upon review, the plaintiff’s objections will be
overruled and Judge Saporito’s report will be adopted in its entirety.
As the record reflects, the plaintiff is a retired federal employee who was
disabled after suffering a spinal cord injury in 2002, which rendered him a
quadriplegic. He is enrolled in a health benefits plan, the NALC Health Benefit
Plan under the Federal Employees Health Benefits Act, (“FEHBA”), 5 U.S.C.
§8901, et seq. The plaintiff initiated the instant action seeking judicial review
of several OPM administrative decisions regarding his insurer’s denials of
coverage with respect to claims for durable medical equipment and medical
supplies, i.e. Claim No. Y15099009, Claim No. Y15035005, Claim No.

Y15205005, Claim No. Y15126013, and Claim No. Y16063002, contending
that each of these decisions was arbitrary and capricious. In response to the
plaintiff’s complaint, the defendant filed a motion to remand Claim Nos.
Y15099009 and Y16063002, (Doc. 5), and a separate motion to dismiss
Claims Nos. Y15035005, Y15205005 and Y15126013, (Doc. 6). Judge
Saporito recommends that the defendant’s motion to remand Claim Nos.
Y15099009 and Y16063002 be granted. He further recommends that the
defendant’s motion to dismiss be granted in part and denied in part.
Specifically, Judge Saporito recommends that claims Y15205005 and
Y15126013 be dismissed with prejudice as untimely and Claim No.
Y15035005 be remanded for reconsideration and further development of an
adequate record for judicial review. The plaintiff has filed objections only as
to Judge Saporito’s recommendation that Claim Nos. Y15099009, Y16063002
and Y15035005 be remanded.
When objections are timely filed to the report and recommendation of
a magistrate judge, the district court must review de novo those portions of
the report to which objections are made. 28 U.S.C. §636(b)(1); Brown v.
Astrue, 649 F.3d 193, 195 (3d Cir. 2011). Although the standard is de novo,
the extent of review is committed to the sound discretion of the district judge,
and the court may rely on the recommendations of the magistrate judge to the

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extent it deems proper. Rieder v. Apfel, 115 F.Supp.2d 496, 499 (M.D.Pa.
2000) (citing United States v. Raddatz, 447 U.S. 667, 676 (1980)).
For those sections of the report and recommendation to which no
objection is made, the court should, as a matter of good practice, “satisfy itself
that there is no clear error on the face of the record in order to accept the
recommendation.” Fed. R. Civ. P. 72(b), advisory committee notes; see also
Univac Dental Co. v. Dentsply Intern., Inc., 702 F.Supp.2d 465, 469 (M.D.Pa.
2010) (citing Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987)
(explaining judges should give some review to every report and
recommendation)). Nevertheless, whether timely objections are made or not,
the district court may accept, not accept, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. 28 U.S.C.
§636(b)(1); Local Rule 72.31.
The plaintiff does not object to Judge Saporito’s recommendation that
Claim Nos. Y15205005 and Y15126013 be dismissed with prejudice. The
court finds no clear error of record as to Judge Saporito’s recommendation
regarding these claims. The report and recommendation will therefore be
adopted in this regard.
With regard to the remand of Claim Nos. Y15099009, Y16063002 and
Y15035005, the plaintiff does not argue anything in his objections to Judge

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Saporito’s report that he did not argue previously in response to the
defendant’s motion to remand. In considering the plaintiff’s arguments, as well
as applicable case law discussing remand of an action to an administrative
agency, Judge Saporito concluded that remand is appropriate in this matter.
The court agrees with the sound reasoning which led to Judge Saporito’s
conclusion. To this extent, and for the reasons articulated in Judge Saporito’s
report and recommendation, it will be adopted.
NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
(1)

the plaintiff’s limited objections to the report and
recommendation of Judge Saporito, (Doc. 16), are
OVERRULED;

(2)

the report and recommendation of Judge Saporito, (Doc.
15), is ADOPTED IN ITS ENTIRETY;

(3)

the defendant’s motion to remand, (Doc. 5), is GRANTED;

(4)

the defendant’s motion to dismiss, (Doc. 6), is GRANTED
IN PART AND DENIED IN PART;

(5)

Claim Nos. Y15205005 and Y15126013 are DISMISSED
WITH PREJUDICE;

(6)

Claim Nos. Y15099009, Y16063002 and Y15035005 are
REMANDED to OPM for reconsideration and development

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of an adequate record for judicial review;
(7)

the instant action is STAYED pending the outcome of the
administrative proceedings on remand; and

(8)

counsel for the defendant shall apprise the court by letter
every three (3) months of the status of the administrative
proceedings.

(9)

the matter is remanded to Judge Saporito.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge

Date: February 9, 2018
O:\Mannion\shared\ORDERS - DJ\CIVIL ORDERS\2017 ORDERS\17-0698-01.wpd

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