Case 3:11-cv-00405-JHS Document 90 Filed 07/18/14 Page 1 of 13
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
`
`MICHAEL V. PELLICANO,
`
`Plaintiff,
`
`v.
`
`OFFICE OF PERSONNEL MANAGEMENT,
`
`Defendant.
`
`CIVIL ACTION
`NO. 11-405
`
`Slomsky, J.
`
`July 18, 2014
`
`OPINION
`
`I.
`
`INTRODUCTION
`
`Before the Court is a Motion for Reconsideration ("Motion") filed by pro se Plaintiff
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`Michael Pellicano ("Plaintiff''). (Doc. No. 81.) Plaintiff asks this Court to reconsider its March
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`26, 2014 Order ("Order") (Doc No. 73), adopting the Report and Recommendation of Magistrate
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`Judge Carlson (Doc. No. 67), and granting the Office of Personnel Management's ("OPM's" or
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`"Defendant's") Motion for Summary Judgment. (Doc. No. 62.) Plaintiff argues that his Motion
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`should be granted in order to prevent manifest injustice. Defendant submits that Plaintiff fails to
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`establish a valid reason to support his request for reconsideration. The Court agrees with
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`Defendant. For reasons that follow, Plaintiff's Motion for Reconsideration (Doc. No. 81) will be
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`denied.
`
`11.
`
`BACKGROUND
`
`The following statement of facts, adopted by this Court in the Order, is taken from the
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`Magistrate Judge's Report and Recommendation:
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`1
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`

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`Case 3:11-cv-00405-JHS Document 90 Filed 07/18/14 Page 2 of 13
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`The plaintiff, Mr. Pellicano, was an enrollee in the Service Benefit Plan (SBP), an
`[sic] federal employee health care benefit plan overseen by OPM under the
`Federal Employee Health Benefit Act, (FEHBA) 5 U.S.C. § 8901. (Doc. 54, OPM
`admin. Record, pp.1-1124) Sometime in 2008, Pellicano filed a prior approval
`request with the local Blue Cross Blue Shield (BCBS) Plan administering his
`benefit plan in Pennsylvania, Pennsylvania Blue Cross Blue Shield.
`In this
`request, Pellicano sought full reimbursement for payment of a specific piece of
`durable medical equipment, a device called a Functional Electrical Stimulation
`(FES) cycle ergonometer. @, p. 44, 71-74.)
`
`This request then set in motion a protracted journey through various health care
`bureaucracies. At the outset, upon receipt of Pellicano's request the local
`Pennsylvania Blue Cross Blue Shield Plan determined that the provider for this
`particular piece of durable medical equipment was located in Baltimore,
`Maryland. Accordingly, Pennsylvania Blue Cross Blue Shield advised Pellicano
`to submit a prior approval request to CareFirst Blue Cross Blue Shield
`(CareFirst), which was responsible for such requests in Maryland. (Id.) Pellicano
`followed this direction and submitted a request for prior approval with CareFirst,
`which initially denied the claim as non-covered on January 26, 2009. (Id., p. 65.)
`
`[Mr.] Pellicano challenged this coverage determination in a letter dated March 6,
`2009, and requested reconsideration of the carrier's denial of the claim. [Id., pp.
`55-57.] One month later, on April 7, 2009, CareFirst responded to Pellicano's
`request. In this response CareFirst explained that the claim had been processed
`with an incorrect rejection code, stated that Medicare was Pellicano's primary
`insurer,
`informed Pellicano that his federal benefit plan provided secondary
`coverage, and advised Pellicano that "[y]ou must submit a claim for this charge to
`Medicare. After Medicare has paid, please send your claim for benefits to your
`Local Blue Cross and Blue Shield Plan or the Plan serving the area where the
`services were rendered." (Id. pp.58.)
`
`Thus, CareFirst's April 2009 response directed Pellicano to take another
`bureaucratic journey[.] Specifically, to secure reimbursement Pellicano was
`If his appeal was denied by
`required to first file an appeal with Medicare.
`Medicare he was then permitted to appeal to the Blue Cross Blue Shield carrier as
`a secondary health insurer.
`(Id.) CareFirst then completed the bureaucratic
`process of addressing Pellicano's initial claim by reprocessing the claim under a
`new claim number and denying the claim for the correct reason. @, p. 66.)
`
`Undeterred, Pellicano launched two parallel efforts to secure reimbursement of
`this medical expense. First, on or about July 6, 2009, Pellicano sought
`reconsideration of the denial of this claim. (Id., p. 59.) In addition, Pellicano
`attempted to comply with the directions he received from CareFirst that he
`exhaust any claims first through Medicare, by submitting a Medicare denial
`benefit statement and Medicare appeal denial letter indicating that Medicare
`denied the claim for the this [sic] durable medical equipment. (Id., pp. 59-63.)
`
`2
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`

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`Case 3:11-cv-00405-JHS Document 90 Filed 07/18/14 Page 3 of 13
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`This Medicare appeal decision found that the Functional Electrical Stimulation
`(FES) cycle ergonometer was not covered by Medicare because "the motorized
`cycle system [he] purchased is categorized as exercise equipment. Medicare does
`not provide reimbursement for equipment that is not primarily medical in nature."
`(Id., p. 61.)
`
`On September 23, 2009, after considering information submitted by Pellicano and
`receiving requested medical documentation from Pellicano's medical providers,
`CareFirst issued its decision on reconsideration[,] finding that the Functional
`Electrical Stimulation (FES) cycle ergonometer met the criteria for covered
`durable medical equipment and was medically necessary for Pellicano's condition.
`(Id., pp. 2-4.) Accordingly, Pellicano was informed that the claim was found to be
`reimbursable but was advised that CareFirst would only pay the claim using 65%
`of the billed charge as the Plan allowance. (Id., p. 4.) This letter also stated that a
`check had been issued to Pellicano in the amount of $13,435.05 -- 65% of the
`billed amount -- and that Pellicano's total responsibility for the claim was
`$20,697.00. (Id.)
`
`Dissatisfied with this decision, Pellicano filed an appeal of this decision with
`OPM on December 2, 2009. (Id., pp. 1-16.) In this appeal, Pellicano challenged
`the amount that was paid on the claim, specifically, disputing the decision to
`allow reimbursement of only 65% of this equipment expense. (Id.) On appeal,
`Pellicano raised a twofold claim, arguing first that nothing in the health benefit
`plan justified a reduced 65% reimbursement rate for this expense. In addition,
`Pellicano provided redacted copies of two other redacted Explanation of Benefit
`(EOB) forms which appeared to have approved full reimbursement of similar
`devices in the past. (Id., pp. 10, 12.) According to these copies, it appeared that
`the billed charge amount was the amount used as the Plan allowance, although the
`Explanations of Benefits letters did not reflect precisely what services or supplies
`were at issue on those specific claims. Nor did the forms explain the nature of the
`claimant's medical justification for this equipment. iliU
`
`On December 29, 2009, the [sic] CareFirst, in tum, provided OPM with an
`Explanation of Denial Report (EOD Report), explaining the history of this
`particular denied claim. (Id., pp. 43-48.) In this report, CareFirst explained that
`"[t]he Plan does not have an established allowance for the FES cycle ergometer
`and, a Medicare allowance was not available. Therefore, the default Medicare
`allowance was 60% of the billed charges. The Local Plan policy is to allow 65%
`of the charges, in the absence of an established allowance." (Id., p. 46.)
`
`Having received this information from the carrier, on February 22, 2010, OPM
`issued a final agency decision which upheld the carrier's actions. (llh, p. 225.) In
`this decision OPM explained that the applicable provisions in the 2008 plan
`brochure relating to Mr. Pellicano contained a formula for calculating the [p]lan
`allowance that applied to physicians and other health care professionals that do
`not contract with the local Blue Cross Blue Shield Plan. This provision stated that
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`3
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`

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`Case 3:11-cv-00405-JHS Document 90 Filed 07/18/14 Page 4 of 13
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`the non-participating provider allowance generally is equal to "the greater of
`1) the Medicare participating fee schedule amount for the service or supply in the
`geographic area in which it was performed or obtained (or 60% of the billed
`charge if there is no equivalent Medicare fee schedule amount) or 2) 100% of the
`2008 Usual, Customary and Reasonable (UCR) amount for the service or supply
`in the geographic area in which it was performed or obtained." (Id., p. 1085.)
`However, according to OPM's February 2010 decision, "[t]here is not a (usual,
`customary and reasonable payment amount] UCR or Medicare fee schedule
`amount for the DME in question." Therefore, in the absence of either a set
`Medicare fee schedule or a usual, customary and reasonable payment amount for
`this particular equipment, OPM concluded that "CareFirst ... policy is to provide
`benefits at 65 percent of the billed amount, when there is no established
`allowance." (Id., p. 225.)
`
`OPM also addressed Mr. Pellicano's claims that the Plan brochure supported the
`use of 100% of the billed amount as the Plan allowance and his assertion that
`other plan members had received full reimbursement for similar equipment by
`explaining that "(t]here is not a UCR [usual, customary and reasonable payment
`schedule] or Medicare fee schedule amount for the DME in question. Therefore,
`the Plan provided benefits as indicated above. Also we cannot direct the Plan to
`provide benefits based on information that you submitted of other BCBS
`enrollees. Our decision is based solely on the Plan's contract and its application to
`your disputed claim." (Id.)
`
`Following the filing of this lawsuit, at OPM's request we remanded this matter to
`the agency for further consideration and fact-finding. On remand, OPM sought an
`additional report from the carrier, (id., pp. 1098-1100), and invited Mr. Pellicano
`to submit information relating to the issues on remand. Mr. Pellicano declined
`this request, fut, pp.1106-07), but CareFirst provided additional documentation
`which explained that:
`
`The Plan does not have a UCR for the FES cycle ergometer
`because it is considered to be exercise equipment and is therefore a
`non-covered item as described in the Service Benefit Plan
`brochure. When situations arise through the disputed claims
`process and individual consideration is given, the Plan must price
`the claim on an Individual Consideration (IC) basis, meaning local
`Plan policies determine, based on claims processing guidelines, the
`allowance for an item that is an exclusion of the policy; this is
`called IC pricing. For the 2008 benefit period IC pricing was 65%
`of the billed amount of a provider's service. Because the provider
`is non-participating with the Plan, this amount was then compared
`to the Medicare Fee Schedule, or 60% of the billed amount in the
`absence of a Medicare Fee Schedule amount. For the item in
`dispute, there is no Medicare Fee Schedule amount, because they
`also consider this a non-covered item. Therefore, within the non-
`
`4
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`

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`Case 3:11-cv-00405-JHS Document 90 Filed 07/18/14 Page 5 of 13
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`participating provider allowance guidelines, 65% of the billed
`amount is greater than 60% of the billed amount. Thus the Plan
`utilized 65% of the billed amount for processing purposes. A copy
`of the Plan's policy for 2008 IC Pricing has been included.
`
`[kt, pp.1112-13.]
`
`With respect to the redacted Explanation of Benefit forms submitted with
`Pellicano's appeal, the CareFirst explained that:
`
`It is not possible for the Plan to determine whether the other
`Explanations of Benefits (EOBs) referenced by the member, one
`for services in 2008 and one for services in 2006, for other
`members were for the same type of DME. Without the member
`identification numbers and/or claim numbers we cannot make this
`the same
`In addition, if the equipment is
`determination.
`reimbursement was made in error and allowing the charges at
`100% of the billed amount was done in error and was not in
`accordance with the IC pricing policies for 2008.
`
`(Id., p. 1113.)
`
`The carrier also provided OPM a copy of the referenced Plan policy for 2008
`Individual Consideration (IC) pricing, which stated that for durable medical
`equipment acquired prior to 2011, "the allowance for the procedure code should
`be 65% ofthe charge .... " [Id., pp. 1116-17.]
`
`On July 24, 2012, OPM issued a revised final agency decision in this matter,
`reaffirming its prior decision that the carrier correctly used 65% of the billed
`charge as the payment for the durable medical equipment in question. [Id., pp.
`1119-24.] In its July 2012 decision, OPM explained that:
`
`The Plan does not have an established UCR for the FES cycle
`ergometer because it is non-covered exercise equipment. When
`these cases are disputed, and individual consideration is given, the
`Plan prices the claim on an Individual Consideration (IC) basis
`using the CareFirst Plan's policy for determining the allowance.
`For 2008, the IC pricing was 65% of the charge, or $13,453.05.
`This pricing policy was effective since 2002, until it was revised
`for 2011. This amount was compared to 60% of the billed charge,
`or $12,418.20, since there is no Medicare Fee Schedule MFS
`amount for the equipment, to determine the NPA. Based on this
`comparison, the NPA was 65% of the billed charge since it is
`greater than 60%. The Plan provided benefits at 100% of the NPA,
`instead of 75%, because the coinsurance is waived when Medicare
`Part B is the primary payer as indicated on page 111 of the BCBS
`
`5
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`

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`Case 3:11-cv-00405-JHS Document 90 Filed 07/18/14 Page 6 of 13
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`Service Benefit Plan brochure. You are responsible for the
`difference between the Plan allowance and billed amount as
`indicated on page 43 of the 2008 brochure. Copies of the
`applicable 2008 BCBS brochure pages are enclosed.
`
`The OPM July 2012 decision letter went on to address Pellicano's contention that
`other plan members had received full reimbursement of these expenses, stating:
`
`The CareFirst Plan indicated it is not possible to determine whether
`the 2006 and 2008 claims for other members were for the same
`type of equipment. The CareFirst Plan could not make the
`determination without member identification numbers and/or claim
`numbers. Additionally, if the equipment is the same, the payment
`of 100% of the billed charge was made in error and was not in
`accordance with the Care first [sic] Plan's IC pricing policy for
`2008.
`
`[Id.,pp.1119-20.]
`
`(Doc. No. 67 at 3-11.)
`
`III.
`
`STANDARD OF REVIEW
`
`"[F]ederal courts have a strong interest in the finality of judgments," and therefore grant
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`motions for consideration sparingly. Continental Cas. Co. v. Diversified Indus., 884 F. Supp.
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`937, 943 (E.D. Pa. 1995). Where the movant is "ask[ing] the Court to rethink what [it] had
`
`already thought through," reconsideration will be denied. Glendon Energy Co. v. Bor. of
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`Glendon, 836 F. Supp. 1109, 1122 (E.D. Pa. 1993) (citation and internal quotation marks
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`omitted). Similarly, this Court has consistently held that "mere dissatisfaction with the Court's
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`ruling is not a proper basis for reconsideration." Boardakan Rest. LLC v. Atl. Pier Assocs., LLC,
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`No. 11-5676, 2013 WL 5468264 (E.D. Pa. Oct. 2, 2013) (internal citation and quotation marks
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`omitted).
`
`A motion for reconsideration will only be granted on one of three grounds: 1) there has
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`been an intervening change in controlling law; 2) new evidence, which was not previously
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`6
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`

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`Case 3:11-cv-00405-JHS Document 90 Filed 07/18/14 Page 7 of 13
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`available, has become available; or 3) it is necessary to correct a clear error of law or to prevent
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`manifest injustice. Blue Mountain Mushroom Co. v. Monterey Mushroom, Inc., 246 F. Supp. 2d
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`394, 399 (E.D. Pa. 2002) (quoting Smith v. City of Chester, 155 F.R.D. 95, 96-97 (E.D. Pa.
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`1994)).
`
`A motion for reconsideration "addresses only factual and legal matters that the court may
`
`have overlooked." Glendon Energy Co., 836 F. Supp. at 1122. "When a motion for
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`reconsideration raises only a party's disagreement with a decision of the court, that dispute
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`should be dealt with in the normal appellate process, not on a motion for reargument." Database
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`Am., Inc. v. Bellsouth Adver. & Pub. Corp., 825 F. Supp. 1216, 1220 (D.N.J. 1993) (citing
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`Florham Park Chevron, Inc. v. Chevron U.S.A., Inc., 680 F. Supp. 159, 163 (D.N.J.1988))
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`(internal quotation marks omitted).
`
`IV.
`
`PLAINTIFF'S MOTION FOR RECONSIDERATION WILL BE DENIED
`
`Here, Plaintiff argues that his Motion for Reconsideration should be granted in order to
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`prevent manifest injustice. 1 (Doc. No. 81 at 15.) A "manifest injustice" is "an error in the trial
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`court that is direct, obvious, and observable, such as a defendant's guilty plea that is involuntary
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`or that is based on a plea agreement that the prosecution rescinds." Black's Law Dictionary 982
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`(8th ed. 2007). To prove that a manifest injustice exists, the moving party is required to show
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`that the perceived injustice is clearly apparent to the point where it is nearly incontrovertible.
`
`See Pac. Gas & Elec. Co. v. United States, 74 Fed. Cl. 779, 785 (Fed. Cl. 2006). This is a heavy
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`burden, requiring the movant to show that the record is "so patently unfair and tainted that the
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`error is manifestly clear to all who view it." Teri Woods Pub., L.L.C. v. Williams, No. 12-
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`1 Plaintiff does not argue that there has been a change in the controlling law, nor has he submitted
`new evidence. Consequently, the first and second grounds for reconsideration will not be
`considered.
`
`7
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`

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`Case 3:11-cv-00405-JHS Document 90 Filed 07/18/14 Page 8 of 13
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`04854, 2013 WL 6388560 (E.D. Pa. Dec. 6, 2013) (citing In re Titus, 479 B.R. 362, 367-68
`
`(Bankr.W.D. Pa. 2012)).
`
`Plaintiff argues that the Court's Order was based on several factual errors that must be
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`corrected in order to prevent injustice. Specifically, the errors alleged by Plaintiff include:
`
`1) OPM's failure to obtain all relevant documents before making its final decision; 2) the fact
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`that OPM's final decision relied on CareFirst's 2008 pricing policy; and 3) the lack of deference
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`to the other EOBs in the record. (Doc. No. 81.) Further, Plaintiff argues that ifthe Court denies
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`his Motion, then the Court should grant him discovery. (Id. at 15.) Each of Plaintiff's arguments
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`will be discussed in turn. 2
`
`2 In addition to the more substantive factual disputes, Plaintiffs Motion also takes issue with the
`characterization of OPM' s February 22, 2010 decision as "final" and Plaintiffs December 17,
`2008 request for reimbursement as a "prior approval request." These issues were disposed of
`by this Court as noted in the Opinions below:
`
`Pursuant to the FEHBA regulations, all responses by OPM to a
`request to review a decision by a primary service provider
`constitute "final decisions." 5 C.F.R. §§ 890.104(d)-(e). To the
`extent Plaintiffs objection to the term "initial" is correct, the Court
`will sustain the objection.
`
`However, using the term "initial" does not change the Court's
`reasoning on the outcome of the case. See e.g., Ryan v. United
`States, No. 10-1425, 2010 WL 3516840, at *2 (M.D. Pa. Aug. 10,
`2010).
`
`(Doc No. 35 at 7-8.)
`
`[Plaintiff] argues that Blue Cross Blue Shield never advised him to
`submit the prior approval request, although he admits that he
`ultimately did send the request to CareFirst. Like the statements
`asserted in Plaintiff's other objections, this statement is not
`supported by the record and, even if it was, it does not amount to a
`genuine issue of material fact.
`
`(Doc. No. 73 at 13.)
`
`8
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`

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`Case 3:11-cv-00405-JHS Document 90 Filed 07/18/14 Page 9 of 13
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`A. The Record Relied Upon By OPM For Its Final Decision Includes The
`Documents Plaintiff Claims Are Necessary For The Agency To Make a Proper
`Decision
`
`Plaintiffs first argument, that OPM "acted irrationally" when conducting the 2009
`
`administrative review because it failed to obtain the 2008 pricing policy or the EOBs showing
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`higher payouts to other plan members, has already been considered by this Court. (Doc. No. 84
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`at 2.) In fact, upon initial review of this case, the Court agreed that the record below was
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`incomplete and remanded the matter back to OPM "for further administrative proceedings and
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`the development of a full and complete record of its decision." (Doc. No. 21at3.) Yet,
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`paradoxically, Plaintiff argues that the decision to remand "was based on erroneous
`
`conclusions," and "clearly biased and arbitrary." (Doc. No. 81 at 12.)
`
`In order to adequately review an agency's decision, a court must have the full and
`
`complete administrative record at its disposal. See Sec. & Exch. Comm'n v. Chenery Corp., 318
`
`U.S. 80, 94 (1943) ("The courts cannot exercise their duty ofreview unless they are advised of
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`the considerations underlying the action under review."). Moreover, the Federal Employee
`
`Health Benefit Act limits the scope of judicial review of an action brought against OPM "to the
`
`record that was before OPM when it rendered its decision .... " 5 C.F.R. § 890.107(d)(l).
`
`"[T]he process of review requires that the grounds upon which the administrative agency acted
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`b[ e] clearly disclosed and adequately sustained." Chenery Corp., 318 U.S. at 94. The 2008
`
`pricing policy that Plaintiff claims was crucial to determining his plan allowance was included in
`
`the BCBS Service Benefit Plan and was made part of the record during OPM's July 24, 2012
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`final administrative review. (Doc. No. 54-9 at 965-1096.) The 2006 and 2008 EOBs of other
`
`Because the Court has previously addressed these two issues, and because their resolution has no
`bearing on the outcome of this case, Plaintiff has not established that a reconsideration of these
`issues would prevent manifest injustice.
`
`9
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`

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`Case 3:11-cv-00405-JHS Document 90 Filed 07/18/14 Page 10 of 13
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`plan members were also a part of the record and were considered by OPM in their final decision.
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`(Doc. No. 54-10 at 1113.)
`
`Thus, Plaintiff has failed to establish that reconsideration of this issue would prevent
`
`manifest injustice. Indeed, as noted above, the Court has cured the issue of an incomplete record
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`by ordering further fact gathering and administrative review. Accordingly, this issue does not
`
`warrant reconsideration.
`
`B. The 2008 CareFirst Policy Was Properly Part Of The Record Below
`
`Next, Plaintiff argues that OPM's 2012 decision should not have relied on CareFirst's
`
`2008 policy because it is "self-serving" and "generated after the fact." (Doc. No. 81 at 8.)
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`Plaintiff challenges the authenticity of the policy because it was not made part of the record until
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`2011. To prevent manifest injustice, according to Plaintiff, the record should be reconsidered
`
`without the policy. Again, the Court has already addressed this issue thoroughly in its most
`
`recent Opinion on the matter, stating:
`
`First, the fact that the 2008 policy may have been turned over later
`in the remand process is not substantial enough to alter the
`outcome of this case. This document was turned over prior to the
`administrative agency's revised agency decision on July 24, 2012.
`Therefore, the document is properly a part of the record in this
`case, and the Magistrate Judge was obligated to review it. Second,
`there is no evidence to support the notion that this document is
`inauthentic.
`
`(Doc. No. 73 at 13.)
`
`Presently, Plaintiff offers no evidence, new or otherwise, that would indicate that the
`
`policy in the record is not an accurate copy of the 2008 policy. Plaintiff fails to establish that yet
`
`another review of this issue would prevent manifest injustice. Furthermore, this issue will not be
`
`reconsidered because it is clear that Plaintiff is "ask[ing] the Court to rethink what [it] had
`
`10
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`

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`Case 3:11-cv-00405-JHS Document 90 Filed 07/18/14 Page 11 of 13
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`already thought through ... ". Glendon Energy Co., 836 F. Supp. at 1122 (citation and internal
`
`quotation marks omitted).
`
`C. The Evidence Of Other Plan Member Benefits Was Properly Considered
`
`Plaintiff also argues that the Court should reconsider its Order and review the 2006 and
`
`2008 EOBs that were part of the record, as well as the letter from Restorative Therapies Inc.
`
`("RTI")-the company that sold the equipment to Plaintiff- which was not part of the record.
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`These claims have also been dealt with in prior proceedings.
`
`Defendant, in its final decision, considered the redacted EOBs that Plaintiff submitted. In
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`fact, OPM sought remand "to seek further clarification from the carrier regarding the redacted
`
`EOBs." (Doc. No. 64 at 4.) Defendant was informed by BCBS that:
`
`The CareFirst Plan indicated it is not possible to determine whether
`the 2006 and 2008 claims for other members were for the same
`type of equipment. The CareFirst Plan could not make the
`determination without member identification numbers and/or claim
`numbers. Additionally, if the equipment is the same, the payment
`of 100% of the billed charge was made in error and was not in
`accordance with the Care first [sic] Plan's IC pricing policy for
`2008.
`
`(Doc. No. 67 at 9.)
`
`The RTI letter, however, was sent to Plaintiff and, therefore, outside the record before
`
`OPM and not subject to review by the agency or the Court.
`
`On this issue, as with the others, Plaintiff has not shown that the record that is "patently
`
`unfair and tainted with error," but rather he is again "ask[ing] the Court to rethink what [it] had
`
`already thought through." Teri Woods Pub., L.L.C., 2013 WL 6388560; Glendon Energy Co.,
`
`836 F. Supp. 1122 (citation and internal quotation marks omitted). Consequently, Plaintiff has
`
`failed to demonstrate the necessity for reconsideration of this issue.
`
`11
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`

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`Case 3:11-cv-00405-JHS Document 90 Filed 07/18/14 Page 12 of 13
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`D. Plaintiff Is Not Entitled To Discovery, Which Was Properly Denied
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`Finally, Plaintiff claims that if this Court fails to grant his Motion for Reconsideration,
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`then the Court must grant Plaintiff discovery. Plaintiff asseverates that further discovery is
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`necessary to correct errors in the record, as well as to prevent manifest injustice. Plaintiff argues
`
`that OPM did not provide the full factual record. (Doc. No. 81 at 14.) To illustrate his point,
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`Plaintiff expounds a slew of e-mail, testimony, faxes, and congressional inquiries that are absent
`
`from the record.
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`As Defendant has correctly reasoned, "[Plaintiff] has no right to discovery in this case.
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`An action brought against OPM to recover on a claim for health benefits is limited to the record
`
`that was before OPM when it rendered its decision." (Doc. No. 71) (citing 5 C.F.R.
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`890.107( d)(3)).
`
`Plaintiff was provided with a copy of the record that OPM compiled in making its
`
`decision, rendering his request for discovery moot. The Third Circuit has already made clear that
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`"in an action challenging administrative action under the Administrative Procedures Act, 5
`
`U.S.C. §§ 701 et seq., the administrative record ordinarily cannot be supplemented." NVE, Inc.
`
`v. Dep't of Health and Human Servs., 436 F.3d 182, 189 (3d Cir. 2006) (citing Camp v. Pitts, 411
`
`U.S. 138, 142 (1973)) (internal quotation marks omitted).
`
`Where the agency's decision is challenged based on the arbitrary and capricious standard
`
`of review, such as here, "the focal point for judicial review should be the administrative record
`
`already in existence, not some new record made initially in the reviewing court." Id.
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`Accordingly, Plaintiff is not entitled to discovery.
`
`V.
`
`CONCLUSION
`
`For the foregoing reasons, Plaintiff's Motion for Reconsideration will be denied. An
`
`appropriate Order follows.
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`Case 3:11-cv-00405-JHS Document 90 Filed 07/18/14 Page 13 of 13
`IN THE UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
`
`MICHAEL V. PELLICANO,
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`Plaintiff,
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`v.
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`OFFICE OF PERSONNEL MANAGEMENT,
`INSURANCE OPERATIONS,
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`Defendant.
`
`CIVIL ACTION
`NO. 11-405
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`ORDER
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`AND NOW, this 18th day of July 2014, upon consideration of Plaintiff's Motion for
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`Reconsideration (Doc. No. 81), Defendant's Brief in Opposition (Doc. No. 82), Plaintiff's Reply
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`(Doc. No. 84), and in accordance with the Opinion issued this day, it ORDERED that Plaintiff's
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`Motion for Reconsideration (Doc. No. 81) is DENIED.
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`BY THE COURT: