           Case: 15-12157   Date Filed: 12/29/2015   Page: 1 of 12


                                                      [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-12157
                         Non-Argument Calendar
                       ________________________

                     D.C. Docket No. 1:15-cv-00268-AT



W. A. GRIFFIN, MD,

                                                      Plaintiff - Appellant,

                                  versus

GENERAL MILLS, INC.,

                                                      Defendant - Appellee.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                            (December 29, 2015)

Before MARTIN, JILL PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:
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       Proceeding pro se, Dr. W.A. Griffin appeals the dismissal of her complaint

under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29

U.S.C. § 1132(a). After careful consideration, we affirm. 1

                                                 I.

       Dr. Griffin, who operates a dermatology practice in Atlanta, Georgia, treated

a patient insured under a General Mills, Inc. health plan (the “Plan”).2 Dr. Griffin

is an out-of-network provider for the Plan. The insured executed an assignment

that “assign[ed] and convey[ed]” to Dr. Griffin “all medical benefits and/or

insurance reimbursement, if any, otherwise payable to me for services rendered

from [Dr. Griffin] . . . , regardless of [Dr. Griffin’s] managed care network




       1
          Dr. Griffin’s motions for (1) a three-judge panel and a published opinion and (2)
expedited consideration, a three-judge panel, and a published opinion are also pending before us.
We deny her motions. Her requests for a three-judge panel are moot because our rules provide
that she is entitled to a three-judge panel. See 11th Cir. R. 34-2, 34-3(e). As regards her requests
for a published opinion, our rules provide that “[a]n opinion shall be unpublished unless a
majority of the panel decides to publish it.” 11th Cir. R. 36-2. In this case, the panel decided not
to publish. Our rules do permit a party to file a motion requesting that a previously unpublished
order be published but provide that the motion shall be granted only if the panel unanimously
agrees to publish. 11th Cir. R. 36-3. Construing Dr. Griffin’s motions as requesting publication
under Rule 36-3, the request is premature, and we deny it. Finally, we deny her request for
expedited consideration as moot.
       2
          At the motion to dismiss stage, we accept the well-pleaded allegations in the complaint
as true and view them in the light most favorable to Dr. Griffin. See Chaparro v. Carnival
Corp., 693 F.3d 1333, 1335 (11th Cir. 2012). We also consider the Plan and Summary Plan
Description, which General Mills submitted to the district court with its motion to dismiss.
Although Dr. Griffin did not attach these documents to her complaint, we may consider them
because they are central to the complaint and their contents are not in dispute. See Harris v. Ivax
Corp., 182 F.3d 799, 802 n.2 (11th Cir. 1999).
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participation status.” Legal Assignment of Benefits (Doc. 1).3 The assignment

further stated that it was “valid for all administrative and judicial review under . . .

ERISA.” Id.

      The Plan is a General Mills-sponsored, self-funded group health benefit plan

governed by ERISA. General Mills serves as the plan administrator. Plan

documents show that Blue Cross Blue Shield of Minnesota (“BCBSMN”) is the

claims and appeals administrator for the Plan. General Mills delegated to

BCBSMN the day-to-day administration of medical benefits under the Plan,

including the discretionary authority to determine whether a claim is payable. An

anti-assignment provision in the Plan bars participants from voluntarily assigning

benefits under the Plan. See Plan at 26 (Doc. 4-2) (“[B]enefits payable to a

Covered Person under a Participating Plan . . . may not be voluntarily sold,

transferred, alienated, or assigned.”).

      Dr. Griffin treated one patient insured under the Plan and alleges that she

was required to submit claims and appeals to Blue Cross Blue Shield Georgia

(“BCBSGA”), even though BCBSMN was the claims administrator. According to

Dr. Griffin, BCBSMN and the other independent Blue Cross Blue Shield

Companies, including BCBSGA, agreed to participate in the national “Blue Card

Program.” The Blue Card Program requires providers to file claims and appeals


      3
          Citations to “Doc.” refer to docket entries in the district court record in this case.
                                                   3
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with the Blue Cross company based where the services were provided, not with the

Blue Cross company that serves as the claims administrator. Accordingly, Dr.

Griffin submitted her claim for the insured to BCBSGA.

      Dr. Griffin alleges that the claim was underpaid by $92. She filed with

BGBSGA a level one administrative appeal regarding this claim. With her

administrative appeal, Dr. Griffin requested at least ten categories of documents

from BCBSGA. She also demanded that BCBSGA notify her whether the Plan

contained an anti-assignment clause, warning that if it failed to do so, she would

argue in litigation that the anti-assignment clause was unenforceable. BCBSGA

responded and denied the appeal. Dr. Griffin then filed a level two administrative

appeal with BCBSGA again requesting broad categories of documents and asking

whether the Plan contained an anti-assignment clause. Neither BCBSGA nor

BCBSMN responded to the level two appeal. Neither BCBSGA nor BCBSMN

provided Dr. Griffin with any of the documents she requested with her appeals or

disclosed that the Plan had an anti-assignment provision.

      Dr. Griffin sued General Mills in federal court, bringing ERISA claims for

failure to provide Plan documents and breach of contract. She sought

approximately $92 for unpaid services, more than $89,000 in penalties, and

declaratory relief. General Mills moved to dismiss the complaint. While the

motion to dismiss was pending, Dr. Griffin sought leave to amend her complaint to


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add an additional claim based upon co-fiduciary liability under ERISA. The

district court granted the motion to dismiss and denied the motion to amend,

concluding that Dr. Griffin lacked statutory standing under ERISA based on the

Plan’s anti-assignment provision. Accordingly, the district court dismissed the

case without prejudice. This appeal followed. 4

                                              II.

       Although courts have long applied the label of “statutory standing” to the

basis for decisions such as the district court’s here, that Dr. Griffin lacked standing

under ERISA, the Supreme Court has cautioned that this label is “misleading”

because the court is not deciding whether there is subject matter jurisdiction but

rather whether the plaintiff “has a cause of action under the statute.” Lexmark

Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1387-88 & n.4

(2014) (internal quotation marks omitted). Put differently, we understand the

district court’s decision that Dr. Griffin lacked statutory standing to be a

determination that she failed to state a claim under Federal Rule of Civil Procedure

12(b)(6). See City of Miami v. Bank of Am. Corp., 800 F.3d 1262, 1273-74 (11th

Cir. 2015).




       4
         After Dr. Griffin filed her notice of appeal, General Mills filed a motion seeking
$3,361.05 in attorney’s fees under ERISA. The motion remains pending before the district court
and is not before us on appeal.
                                              5
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      “We review de novo the district court’s grant of a Rule 12(b)(6) motion to

dismiss for failure to state a claim, accepting the complaint’s allegations as true

and construing them in the light most favorable to the plaintiff.” Chaparro v.

Carnival Corp., 693 F.3d 1333, 1335 (11th Cir. 2012) (internal quotation marks

omitted). To survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to “state a claim to relief that is plausible on its

face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “[N]aked

assertions devoid of further factual enhancement” or “[t]hreadbare recitals of the

elements of a cause of action, supported by mere conclusory statements, do not

suffice.” Ashcroft v. Iqbal, 566 U.S. 662, 678 (2009) (internal quotation marks

omitted). Upon review of dismissals for failure to state a claim, “[p]ro se

pleadings are held to a less stringent standard than pleadings drafted by attorneys

and are liberally construed.” Bingham v. Thomas, 654 F.3d 1171, 1175 (11th Cir.

2011) (internal quotation marks omitted).

                                           III.

      Section 502(a) of ERISA provides that only plan participants and plan

beneficiaries may bring a private civil action to recover benefits due under the

terms of a plan, to enforce rights under a plan, or to recover penalties for a plan

administrator’s failure to provide documents. 29 U.S.C. § 1132(a)(1), (c). This

provision also limits the right to sue for breach of fiduciary duty to plan


                                            6
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participants, plan beneficiaries, plan fiduciaries, and the Secretary of Labor. Id.

§ 1132(a)(2). Additionally, only plan participants, plan beneficiaries, and plan

fiduciaries may bring a civil action to obtain equitable relief to redress a practice

that violates ERISA or the terms of a plan. Id. § 1132(a)(3). As we have

explained, “[h]ealthcare providers . . . are generally not ‘participants’ or

‘beneficiaries’ under ERISA and thus lack independent standing to sue under

ERISA.” Physicians Multispecialty Grp. v. Health Care Plan of Horton Homes,

Inc., 371 F.3d 1291, 1294 (11th Cir. 2004).

      There is, however, an exception to this general rule that healthcare providers

have no right of action under section 502(a). We have recognized that

“[h]ealthcare providers may acquire derivative standing . . . by obtaining a written

assignment from a ‘beneficiary’ or ‘participant’ of his right to payment of benefits

under an ERISA-governed plan.” Id; see also Cagle v. Bruner, 112 F.3d 1510,

1515 (11th Cir. 1997) (explaining that “neither the text of § 1132(a)(1)(B) nor any

other ERISA provision forbids the assignment of health care benefits provided by

an ERISA plan”). Although ERISA does not prohibit a plan participant or

beneficiary from assigning benefits to her provider, we have held that an anti-

assignment provision in a plan, which limits or prohibits a plan participant or

beneficiary from assigning her right to payment of benefits, is valid and

enforceable. Physicians Multispecialty Grp., 371 F.3d at 1296. Accordingly,


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when a plan contains an unambiguous anti-assignment provision, a plan participant

or beneficiary may not assign benefits to a healthcare provider, meaning the

healthcare provider cannot acquire a cause of action under section 502(a). Id.

                                                A.

       In this case, the insured’s assignment purported to transfer to Dr. Griffin the

right to payment of benefits. We have recognized that when a patient assigns to a

provider the right to payment for medical benefits, he also conveys the right to file

an action under section 502(a) of ERISA for unpaid benefits. See Conn. State

Dental Ass’n v. Anthem Health Plans, Inc., 591 F.3d 1337, 1352-53 (11th Cir.

2009). Thus, if enforceable, the assignment transferred to Dr. Griffin the right to

bring a cause of action under section 502(a) for unpaid benefits. 5 Because the

Plan’s anti-assignment provision bars the insured’s voluntarily assignment of

benefits to Dr. Griffin, we conclude that the assignment is void. The district court

did not err in dismissing Dr. Griffin’s ERISA action for failure to state a claim

because she lacked a cause of action under section 502(a) of ERISA.

       Dr. Griffin argues that the assignment is valid because the anti-assignability

provision is unenforceable under Georgia law. She relies on a Georgia statute

stating that “whenever . . . [a] self-insured health benefit plan . . . , which is issued
       5
          Although the assignment transferred to Dr. Griffin the insured’s right to sue under
section 502(a) of ERISA for unpaid benefits, the assignment contained no provision transferring
the insured’s right to assert claims for breach of fiduciary duty or civil penalties. Because the
insured never assigned to Dr. Griffin the right to bring such claims, she lacks derivative standing
to bring these claims under section 502 of ERISA.
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or administered by a person licensed under this title provides that any of its

benefits are payable to a participating or preferred [licensed] provider of health

care services,” the plan must also “pay such benefits either directly to any similarly

licensed nonparticipating or nonpreferred provider who has rendered such services,

has a written assignment of benefits, and has caused written notice of such

assignment to be given . . . or jointly to such nonparticipating or nonpreferred

provider and to the insured.” O.C.G.A. § 33-24-54(a). These benefit payments

must be sent “directly to the provider who has the written assignment.” Id. The

statute guarantees that if benefits are payable to preferred or participating providers

under a self-insured plan, the plan must also pay benefits to non-participating or

non-preferred healthcare providers to whom patients have assigned their rights.

Even assuming that section 33-24-54 applies to a Plan for which BCBSMN, not

BCBSGA, is the claims administrator, nothing in the statute explicitly prohibits a

health benefits plan from barring assignment. Thus, we fail to see how section 33-

24-54(a) renders an anti-assignment provision unenforceable and decline to hold

that the statute implicitly bars anti-assignment provisions.6


       6
         Other states have expressly prohibited anti-assignment clauses. See, e.g., Ala. Code
§ 27-1-19(b) (“[T]he contract providing coverage to an insured may not exclude the right of
assignment of benefits . . . .”); Colo. Rev. Stat. § 10-16-317.5(a) (stating that a “contract issued
pursuant to the provisions of this article shall not prohibit a subscriber under the contract from
assigning, in writing, benefits under the contract to a licensed hospital or other licensed health
care provider for services provided to the subscriber which are covered under the contract”); Me.
Rev. Stat. Ann. tit. 24, § 2332-H (“All contracts providing benefits for medical or dental care on
an expense-incurred basis must contain a provision permitting the insured to assign benefits for
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                                                 B.

       Dr. Griffin argues that General Mills cannot rely on the anti-assignment

provision because BCBSGA failed to notify her of the provision after she asked

whether the Plan contained such a term. Liberally construed, Dr. Griffin’s

argument is that because BCBSGA failed to disclose the anti-assignment term,

General Mills either is equitably estopped from relying on the anti-assignment term

or has waived it. We disagree.

       Under ERISA equitable estoppel applies only when “the plaintiff can show

that (1) the relevant provisions of the plan at issue are ambiguous, and (2) the plan

provider or administrator has made representations to the plaintiff that constitute an

informal interpretation of the ambiguity.” Jones v. Am. Gen. Life & Acc. Ins. Co.,

370 F.3d 1065, 1069 (11th Cir. 2004). Because the anti-assignment provision is

unambiguous, equitable estoppel cannot apply here.

       We have “left open the question of whether waiver principles might apply

under the federal common law in the ERISA context.” Witt v. Metro. Life Ins. Co.,


such care to the provider of the care.”); N.H. Rev. Stat. Ann. § 420-B:8-n (requiring insurance
contracts to “contain a provision permitting the enrollee to assign any benefits provided for
medical or dental care on an expense-incurred basis to the provider of care”); Tenn. Code Ann.
§ 56-7-120 (“[W]henever any policy of insurance issued in this state provides for coverage of
health care rendered by a provider . . . , the insured or other persons entitled to benefits under the
policy shall be entitled to assign these benefits to the healthcare provider and such rights must be
stated clearly in the policy.”); Va. Code Ann. § 38.2-3407.13 (prohibiting insurers from
“refus[in]g to accept or make reimbursement pursuant to an assignment of benefits made to a
dentist or oral surgeon by an insured, subscriber or plan enrollee”). Georgia law contains no
such provision.

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772 F.3d 1269, 1279 (11th Cir. 2014). But even if we assume that waiver could

apply in the ERISA context, Dr. Griffin has failed to plead sufficient facts to show

that General Mills waived the anti-assignment provision. “[W]aiver is the

voluntary, intentional relinquishment of a known right.” Id. (internal quotation

marks omitted). We have explained that waiver may be express or implied, but to

find implied waiver, “the acts, conduct, or circumstances relied upon to show

waiver must make out a clear case.” Dooley v. Weil (In re Garfinkle), 672 F.2d

1340, 1347 (11th Cir. 1982).

      Dr. Griffin has neither alleged nor explained how General Mills intentionally

relinquished its rights under the anti-assignment provision. In fact, she alleged no

interaction or communication with General Mills before she filed this lawsuit.

Although she alleged that BCBSGA failed to inform her of the anti-assignment

provision during the administrative process, even liberally construing her pleadings

and accepting her allegations as true, we find these allegations insufficient to

establish a “clear case” that General Mills intentionally and voluntarily

relinquished its rights under the anti-assignment provision. Id.

                                         IV.

      We conclude that the Dr. Griffin failed to state a claim because she failed to

allege facts sufficient to support a cause of action under § 502(a) of ERISA.




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Accordingly, the district court committed no error in dismissing her complaint

against General Mills. 7

       AFFIRMED.




       7
         Dr. Griffin also argues that the district court erred in denying her motion to amend her
complaint to add an additional claim under ERISA. We review the district court’s denial of a
motion to amend a complaint for abuse of discretion, but we review de novo whether the
proposed amendment to the complaint would be futile. See Harris v. Ivax Corp., 182 F.3d 799,
802-03 (11th Cir. 1999). Because of the anti-assignment provision, Dr. Griffin has no cause of
action under ERISA; thus, the proposed amendment would be futile, and the district court
properly denied the motion to amend.
                                                12
