United States District Court, D. Montana, Great Falls Division
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS
Morris, United States District Court Judge
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
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).
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.
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.
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.
ORDERED that Judge Johnston's Findings and
Recommendations (Doc. 30) is ADOPTED IN FULL.
FURTHER ORDERED that Plaintiff Alan Owens's Motion to