United States District Court, D. Idaho
DECISION AND ORDER RE: PLAINTIFF'S MOTION FOR ORDER
COMPELLING FEDERAL DEFENDANTS' DISCOVERY RESPONSE (DOCKET
NO. 70) FEDERAL DEFENDANTS' MOTION FOR PROTECTIVE ORDER
(DOCKET NO. 76) FEDERAL DEFENDANTS' MOTION TO DISMISS
PLAINTIFF'S FIFTH CLAIM FOR RELIEF (DOCKET NO. 85)
FEDERAL DEFENDANTS' MOTION TO STAY SUMMARY JUDGMENT
BRIEFING ON THE FIFTH CLAIM AND ANY PROCEEDINGS ON THE OTHER
CLAIMS (DOCKET NO. 87) PLAINTIFF'S MOTION FOR LEAVE TO
AMEND COMPLAINT (DOCKET NO. 100)
E. Bush Chief U.S. Magistrate Judge.
pending before the Court are the following motions: (1)
Plaintiff's Motion for Order Compelling Federal
Defendants' Discovery Response (Docket No. 70); (2)
Federal Defendants' Motion for Protective Order (Docket
No. 76); (3) Federal Defendants' Motion to Dismiss
Plaintiff's Fifth Claim for Relief (Docket No. 85); (4)
Federal Defendants' Motion to Stay Summary Judgment
Briefing on the Fifth Claim and Any Proceedings on the Other
Claims (Docket No. 87); and (5) Plaintiff's Motion for
Leave to Amend Complaint (Docket No. 100). Having carefully
considered the record and otherwise being fully advised, the
Court enters the following Memorandum Decision and Order:
AND PROCEDURAL BACKGROUND
Bruce Norvell was enrolled in the Service Benefit Plan (the
“Plan') - a nationwide health benefits plan created
pursuant to Federal Employee Health Benefit Act
(“FEHBA”), which authorizes Defendant U.S. Office
of Personnel Management (“OPM”) to enter into
contracts with private entities (“carriers”) to
offer insurance plans to federal employees, retirees, and
their dependents. See 5 U.S.C. § 8902(a); see also
Compl., ¶¶ 6-8 (Docket No. 1). The Plan is one such
plan and is created by a contract between OPM and Defendant
Blue Cross and Blue Shield Association (“BCBSA”),
the latter of which is the Plan's carrier and acts on
behalf of local Blue Cross and Blue Shield companies such as
Defendant Blue Cross of Idaho Health Service
(“BCI”) that, in turn, administer the Plan with
respect to health care services rendered in their individual
localities. See Compl., ¶¶ 7-8; see also
Norvell v. Office of Personnel Mgmt., et al., No.
1:14-cv-00421-BLW (D. Idaho) 9/23/15 Decision (“Norvell
I” decision”), pp. 2-3 (Docket No. 126).
here, Plaintiff's claims stem from heart ablation surgery
(a procedure covered by the Plan) and the resulting cost
share that he was initially charged. Specifically, Plaintiff
disagreed with the approximately $3, 800 cost share the Plan
first told him he would owe in connection with that surgery.
See Compl., ¶ 40-43; see also Norvell I Decision, p. 3;
Norvell Decl., ¶ j, attached as Ex. 7 to Compl. (Docket
No. 1, Att. 8). According to Plaintiff, the Plan's
original determination was based, in part, on the treatment
being incorrectly or ambiguously categorized as an
“outpatient” procedure, instead of
“inpatient” (with related expense allocations).
See generally Id. Plaintiff then challenged the
amount of the cost share through the mandatory administrative
appeal process, culminating with an administrative review by
OPM. See id.; see also 5 C.F.R. § 890.105(a), (e).
Ultimately, Plaintiff had his cost share reduced to $100. See
Compl., ¶ 44; see also Novell I Decision, p. 3; Norvell
Decl., ¶ j. But that did not end the matter; instead,
Plaintiff brought an action in this Court - Norvell I.
Norvell I, Plaintiff argued that a lack of definitions in the
FEHBA plans for the terms “inpatient” and
“outpatient” violates two separate laws: (1) an
FEHBA provision that requires FEHBA contracts to contain
“a detailed statement of benefits” that includes
“definitions of benefits as [OPM] considers necessary
or desirable” (see 5 U.S.C. § 8902(d)); and (2)
Public Health Service Act (“PHSA”) § 2715,
which requires the use of certain uniform definitions in
summary documents describing health plans (see 42 U.S.C.
§ 300gg-15). See Norvell I Decision, p. 4. Relatedly,
Plaintiff alleged that he was injured by the insufficient
definitions in five distinct ways, including purportedly
being “unable to compare various [FEHBA] policies
because their statements of benefits contain ambiguous
definitions.” See Id. at p. 6.
September 23, 2015, Chief U.S. District Judge B. Lynn Winmill
dismissed Norvell I for lack of subject matter jurisdiction
(specifically, for lack of standing), holding, among other
things, that “the inability to compare various plans
does not constitute an injury in fact” in part because
that “so-called injury is neither concrete nor
particularized.” Id. at p. 7; see also
Id. at p. 11 (“Having found that [Plaintiff]
has failed to establish that he has suffered an injury in
fact fairly traceable to the Defendants' conduct, which
could be redressed by judicial intervention, the Court
concludes that [Plaintiff] lacks standing. As such, this
Court lacks jurisdiction to entertain [Plaintiff's]
Complaint.”). Plaintiff appealed the dismissal. The
Ninth Circuit summarily affirmed Judge Winmill's decision
to dismiss the case. See Norvell v. Office of Personnel
Mgmt., et al., No. 15-35783, Order (9th Cir.
Feb. 25, 2016).
then filed this case - Norvell II - claiming, again, that
Defendants' failure to include and/or require definitions
of the terms “inpatient” and
“outpatient” in any of the 2016 FEHBA plans makes
it impossible for him and other consumers to make informed
decisions, to understand and compare health care coverages,
and to determine benefits and co-payment responsibilities.
Compare generally Norvell I Compl. (Docket No. 1), with
Norvell II Compl. (Docket No. 1) (both discussing PHSA and
FEHBA claims, failure to define terms “inpatient”
and “outpatient, ” and alleged injuries).
According to Plaintiff, “Judge Winmill did not
understand the nature of injury that [Plaintiff] alleged in
Norvell I” and, as a result, “[a] fresh look by
another judge would best serve the just determination of this
action.” Pl.'s Mot. to Deny Defs.' Request for
Reassign., p. 2 (Docket No. 23, Att. 1).
July/September 2016, all current Defendants moved to dismiss
this action (Norvell II), arguing that, under the
well-settled doctrines of standing, ripeness, sovereign
immunity, res judicata, and/or collateral estoppel, this
action should be dismissed. See generally Fed. Defs.'
Mot. to Dismiss (Docket No. 10); Non-Gov't Defs.'
Mot. for J. on the Pleadings and Joinder (Docket No. 27).
Alternatively, these Defendants submitted that this case must
be dismissed for lack of standing for the same reasons
articulated by Judge Winmill in Norvell I. See Id.
On February 2, 2017, the Court dismissed Norvell II, finding
that it was procedurally barred by Norvell I. See 2/2/17 Rpt.
& Recomm./MDO, pp. 7-8 (Docket Nos. 51-52)
(“Norvell II is nearly identical to Norvell I - the
allegations are the same and, importantly, the alleged
injuries are the same. And, the decision in Norvell I has
already determined that these allegations fail to establish
an injury in fact sufficient to incur standing. In short,
Plaintiff has not cured the jurisdictional defect; simply
put, he includes no new facts that would prevent application
of Novell I's holding that Plaintiff failed to establish
an injury in fact for this latest claim. Thus, Norvell I now
bars Plaintiff's claims in this action.”); see also
3/2/17 Order on Rpt. & Recomm. (Docket No. 56) (adopting
February 2, 2017 Report and Recommendation in its entirety);
3/2/17 J. (Docket No. 57).
appealed that decision, and the Ninth Circuit vacated the
Court's judgment and remanded the action for further
proceedings, concluding in relevant part:
The district court dismissed Norvell's action on the
alternate grounds of lack of Article III standing and issue
preclusion. However, Norvell alleged that he is unable to
predict the medical care that would be covered and to project
his copayments, and is therefore unable to understand and
compare health benefits plans. See 5 U.S.C. §
8907(a)-(b) (setting forth information that the Office of
Personnel Management shall make available to “enable
the individual to exercise an informed choice among the types
of [health benefits] plans.”). In a case decided after
the district court's ruling in this case, Robins v.
Spokeo, Inc., 867 F.3d 1108, 1113 (9th Cir.
2017), this court explained that in evaluating
plaintiff's claim of harm, the district court must
analyze “whether the statutory provisions at issue were
established to protect [plaintiff's] concrete interests
(as opposed to purely procedural rights), and if so, . . .
whether the specific procedural violations alleged . . .
actually harm, or present a material risk of harm to, such
In light of this intervening authority, we vacate the
judgment and remand for further proceedings. See Segal v.
Am. Tel. & Tel. Co.,606 F.2d 842, 845
(9th Cir. 1979) (noting exception to issue
preclusion where “[t]he issue is one of law and . . . a
new determination is warranted in order to take account of an
intervening change in the applicable legal context” and
noting that ...