           Case: 15-12138   Date Filed: 12/29/2015   Page: 1 of 11


                                                      [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-12138
                         Non-Argument Calendar
                       ________________________

                     D.C. Docket No. 1:15-cv-00171-AT



W. A. GRIFFIN, MD,


                                              Plaintiff - Appellant,


                                  versus


HEALTH SYSTEMS MANAGEMENT, 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 Health Systems Management, 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




       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 motion. 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for a published opinion, our rules provide that “[a]n opinion shall be unpublished unless a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 Medical Benefit Booklet
regarding the Plan, which Health Systems Management submitted to the district court with its
motion to dismiss. Although Dr. Griffin did not attach this document to her complaint, we may
consider it because it is central to the complaint and its contents are not in dispute. See Harris v.
Ivax Corp., 182 F.3d 799, 802 n.2 (11th Cir. 1999).
                                                  2
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care network participation status.” Legal Assignment of Benefits (Doc. 1-1). 3 The

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

review under . . . ERISA.” Id.

      The Plan is a group health benefit plan governed by ERISA. Health Systems

Management sponsors the Plan 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 generally bars participants from assigning benefits

under the Plan. See Medical Benefit Booklet at 63 (Doc. 5-2) (“You cannot assign

your right to receive payment to anyone else, except as required by a ‘Qualified

Medical Child Support Order’ as defined by ERISA or any applicable state law.”).

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

the insured. She alleges BCBSGA underpaid these claims. She filed with

BGBSGA separate level one administrative appeals for both claims. With each

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

denied the appeals. She then filed with BCBSGA a level two administrative


      3
          Citations to “Doc.” refer to docket entries in the district court record in this case.
                                                   3
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appeal for each claim. BCBSGA denied one of the appeals and failed to respond

to the other. BCBSGA never 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 Health Systems Management in federal court, bringing

ERISA claims for unpaid benefits, breach of fiduciary duty, failure to provide Plan

documents, and breach of contract. She sought approximately $7,700 in unpaid

benefits, at least $186,000 in penalties, and declaratory relief. Health Systems

Management 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

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


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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

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




                                            5
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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

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


                                           6
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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, an

anti-assignment provision can bar a plan participant or beneficiary from assigning

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 from the Plan. 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




                                            7
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right to bring a cause of action under section 502(a) for unpaid benefits.4 But the

Plan’s anti-assignment provision bars the insured’s assignment to Dr. Griffin.

       The anti-assignment provision states “You cannot assign your right to

receive payment to anyone else, except as required by a ‘Qualified Medical Child

Support Order’ as defined by ERISA or any applicable state law.” Medical Benefit

Booklet at 63 (Doc. 5-2). Construing this provision to mean that the Plan must

permit assignments that are required by state law, Dr. Griffin argues that the anti-

assignment provision is inapplicable because Georgia law required the insureds to

assign their benefits to her. 5 She relies on a Georgia statute stating that 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

       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.
       5
         The anti-assignment provision could be interpreted in two ways. As Dr. Griffin asserts,
the provision may be read as allowing assignments required by (1) a Qualified Medical Child
Support Order, as that term is defined by ERISA, or (2) applicable state law. Alternatively, the
provision may be read as allowing assignments only when required by a Qualified Medical Child
Support Order, as that term is defined by either (1) ERISA or (2) applicable state law. Under the
second interpretation, the insured’s assignments to Dr. Griffin would be void because it was not
made pursuant to a Qualified Medical Child Support Order. We assume for purposes of this
appeal that the Plan permits assignments when required by state law.
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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 plan, the plan

must also pay benefits to non-participating or non-preferred healthcare providers to

whom patients have assigned their rights. But nothing in this statute requires an

insured to assign her benefits to a medical provider. 6 Accordingly, we conclude

that even though the insured assigned benefits to Dr. Griffin, the assignment is

void.

                                                 B.

        Dr. Griffin argues that Health Systems Management 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, Health Systems Management either is equitably estopped from relying on the

anti-assignment term or has waived it. We disagree.


        6
         Dr. Griffin makes an alternative argument that even if the Plan prohibits the
assignments, the anti-assignment provision is void under section 33-25-54. We reject this
argument for a related reason: nothing in this statute explicitly prohibits a health benefits plan
from barring assignments. We fail to see how section 33-24-54 renders an anti-assignment
provision unenforceable and decline to hold that the statute implicitly bars anti-assignment
provisions.
                                                  9
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      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). Even if the anti-assignment provision is

ambiguous, there is no evidence that Health Systems Management or BCBSGA

made any representation to Dr. Griffin informally interpreting the provision.

Accordingly, 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 Health Systems Management 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 Health Systems

Management intentionally relinquished its rights under the anti-assignment


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provision. In fact, she alleged no interaction or communication with Health

Systems Management 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 Health Systems Management intentionally and voluntarily relinquished its

rights under the anti-assignment provision. Id. 7

                                               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 Health Systems Management. 8

       AFFIRMED.




       7
         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.
       8
         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
