           Case: 15-12137   Date Filed: 12/30/2015   Page: 1 of 11


                                                      [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-12137
                         Non-Argument Calendar
                       ________________________

                     D.C. Docket No. 1:15-cv-00170-AT



W. A. GRIFFIN, MD,

                                                      Plaintiff-Appellant,

                                 versus

FOCUS BRANDS, INC.,

                                                      Defendant-Appellee.

                       ________________________

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

                            (December 30, 2015)

Before MARTIN, JILL PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:
                Case: 15-12137        Date Filed: 12/30/2015       Page: 2 of 11


       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 FOCUS Brands, 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




       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 request
for a published opinion, our rules provide that “[a]n opinion shall be unpublished unless a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 Group Master Contract
between FOCUS Brands and the claims administrator, Blue Cross Blue Shield of Georgia, and
the Certificate Booklet regarding the Plan, which FOCUS Brands 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).
                                                 2
                 Case: 15-12137         Date Filed: 12/30/2015        Page: 3 of 11


network participation status.” Legal Assignment of Benefits (Doc. 8-1).3 The

assignment further stated that it was “valid for all administrative and judicial

review under . . . ERISA.” Id.

      FOCUS Brands sponsors the Plan, which is a group health benefit plan

governed by ERISA, and serves as the plan administrator. Blue Cross Blue Shield

of Georgia (“BCBSGA”) serves as the Plan’s claims administrator to review and

decide claims and appeals under the Plan. An anti-assignment provision in the

Plan documents bars participants from assigning benefits under the Plan without

written permission from BCBSGA. See Certificate Booklet at 5, 95 (Doc. 6-1)

(“Benefits available under this [Plan] are not assignable by any Member without

obtaining written permission from [BCBSGA] . . . .”).

      Dr. Griffin submitted two claims to BCBSGA for services she provided to

the insured. She alleges BCBSGA improperly reduced the allowable charges for

her services. She filed with BGBSGA a level one administrative appeal,

challenging its calculation of allowable charges. 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.


      3
          Citations to “Doc.” refer to docket entries in the district court record in this case.
                                                   3
              Case: 15-12137     Date Filed: 12/30/2015    Page: 4 of 11


      When BCBSGA failed to respond to her appeal, Dr. Griffin telephoned. A

representative informed her that her appeal had been denied. Dr. Griffin then filed

with BCBSGA a level two administrative appeal. Shortly after she filed this

appeal, BCBSGA sent her a letter explaining that out-of-network providers have

no appeal rights under the Plan. BCBSGA neither provided Dr. Griffin with any of

the documents she requested with her level one appeal nor disclosed that the Plan

had an anti-assignment provision.

      Dr. Griffin sued FOCUS Brands in federal court, bringing ERISA claims for

unpaid benefits, breach of fiduciary duty, failure to provide Plan documents, and

breach of contract, seeking money damages, statutory penalties, and declaratory

relief. FOCUS Brands moved to dismiss the complaint. While the motion to

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

                                          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


                                           4
              Case: 15-12137      Date Filed: 12/30/2015     Page: 5 of 11


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).

      “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


                                            5
              Case: 15-12137     Date Filed: 12/30/2015    Page: 6 of 11


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).

                                          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

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


                                           6
              Case: 15-12137    Date Filed: 12/30/2015    Page: 7 of 11


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,

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




                                          7
                Case: 15-12137        Date Filed: 12/30/2015       Page: 8 of 11


bring a cause of action under section 502(a) for unpaid benefits. 4 But the Plan’s

unambiguous anti-assignment provision prohibits the assignment of benefits unless

BCBSGA has given written permission. See Certificate Booklet at 5, 95 (Doc. 6-

1) (“Benefits available under this [Plan] are not assignable by any Member without

obtaining written permission from [BCBSGA].”) Dr. Griffin has not pled that

BCBSGA ever gave such permission. Therefore, even though she alleged that the

insured assigned Plan benefits to her, the assignment is void.

       Dr. Griffin argues that the Plan’s anti-assignment provision is unenforceable

under Georgia law. She relies on a Georgia statute stating that “whenever an

accident and sickness insurance policy, subscriber contract, or self-insured health

benefit plan . . . 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
       4
          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.
                                                 8
                Case: 15-12137         Date Filed: 12/30/2015        Page: 9 of 11


preferred or participating providers under a plan, the plan must also pay benefits to

non-participating or non-preferred healthcare providers to whom patients have

assigned their rights. Nothing in the statute explicitly prohibits a health benefits

plan from barring assignment. Thus, we fail to see how section 33-24-54 renders

anti-assignment provisions unenforceable and decline to hold that the statute

implicitly bars anti-assignment provisions. 5

                                                 B.

       Dr. Griffin argues that FOCUS Brands 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,



       5
          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
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 certain 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.

                                                  9
             Case: 15-12137     Date Filed: 12/30/2015   Page: 10 of 11


FOCUS Brands 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.,

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 FOCUS Brands 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 FOCUS Brands

intentionally relinquished its rights under the anti-assignment provision. In fact,


                                          10
               Case: 15-12137        Date Filed: 12/30/2015       Page: 11 of 11


she alleged no interaction or communication with FOCUS Brands 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 FOCUS Brands intentionally and

voluntarily relinquished its rights under the anti-assignment provision. Id.6

                                               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.

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

against FOCUS Brands.7

       AFFIRMED.




       6
         We express no opinion about whether Dr. Griffin’s allegations would be sufficient to
plead that BCBSGA waived the anti-assignment provision, as that question is not before us.
       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 right of
action under ERISA; thus, the proposed amendment would be futile, and the district court
properly denied the motion to amend.
                                                11
