Bruce A. Norvell v. Blue Cross and Blue Shield Association;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRUCE A. NORVELL,
Plaintiff-Appellant,
v.
BLUE CROSS AND BLUE SHIELD
ASSOCIATION; et al.,
Defendants-Appellees.
No. 17-35239
D.C. No. 1:16-cv-00195-EJL-REB
MEMORANDUM*
Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Submitted October 23, 2017**
Before: McKEOWN, WATFORD, and FRIEDLAND, Circuit Judges.
Bruce A. Norvell appeals pro se from the district court’s judgment
dismissing his action seeking declaratory and injunctive relief regarding terms
defined in his health care plans. We have jurisdiction under 28 U.S.C. § 1291. We
review de novo. Braunstein v. Ariz. Dep’t of Transp., 683 F.3d 1177, 1184 (9th
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
OCT 30 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Cir. 2012) (lack of standing); San Remo Hotel L.P. v. San Francisco City &
County, 364 F.3d 1088, 1094 (9th Cir. 2004) (issue preclusion). We vacate and
remand.
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 interests.”
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

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in the applicable legal context” and noting that “[i]ssue preclusion has never been
applied to issues of law with the same rigor as to issues of fact”).
Norvell’s request to prepare or review this court’s order, set forth in his
opening and reply briefs, is denied.
Blue Cross and Blue Shield Association, Blue Cross of Idaho Health
Service, and Special Agent Mutual Benefit Association’s motion to take judicial
notice (Docket Entry No. 12), is denied as unnecessary.
The parties shall bear their own costs on appeal.
VACATED and REMANDED.

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