                                                           NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               _____________

                                   No. 14-1832
                                  _____________

    AMERICAN CHIROPRACTIC ASSOCIATION, on its own behalf and in a
              representational capacity on behalf of its members;
 STEVEN G. CLARKE, D.C., individually, and on behalf of all other similarly situated
                           Doctors of Chiropractic;
  CAROL A. LIETZ, individually, and on behalf of all other similarly situated health
                            insurance subscribers,

                                                      Appellants

                                         v.

             AMERICAN SPECIALTY HEALTH INCORPORATED;
             AMERICAN SPECIALTY HEALTH NETWORKS, INC;
           CONNECTICUT GENERAL LIFE INSURANCE COMPANY;
                       CIGNA CORPORATION
                       ______________________

            APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                        (D.C. Civ. Action No. 2-12-cv-07243)
               District Judge: Honorable Nitza I. Quinones Alejandro
                            _______________________

                            Argued: November 19, 2014
                            _______________________

         Before CHAGARES, HARDIMAN, and SHWARTZ, Circuit Judges

                            (Filed: September 11, 2015 )

D. Brian Hufford, Esq. [ARGUED]
Jason S. Cowart, Esq.
Zuckerman Spaeder
1185 Avenue of the Americas
31st Floor
New York, NY 10036

Anthony F. Maul, Esq.
Suite 201
68 Jay Street
Brooklyn, NY 11201

Catherine Pratsinakis, Esq.
Steven A. Schwartz, Esq.
Chimicles & Tikellis
361 West Lancaster Avenue
One Haverford Centre
Haverford, PA 19041

Joe R. Whatley, Jr. Esq.
Whatley, Drake & Kallas
1540 Broadway
37th Floor
New York, NY 10036

      Counsel for the Appellants

Joshua B. Simon, Esq. [ARGUED]
Warren Haskel, Esq.
Frank M. Holozubiec, Esq.
William H. Pratt, Esq.
Kirkland & Ellis
601 Lexington Avenue
New York, NY 10022

Michael P. Daly, Esq.
Richard M. Haggerty, Jr., Esq.
Drinker, Biddle & Reath
18th & Cherry Streets
One Logan Square, Suite 2000
Philadelphia, PA 19103

Andrew Z. Edelstein, Esq.
Elizabeth D. Mann, Esq.
Mayer Brown
                                   2
355 South Grand Avenue
Suite 3800
Los Angeles, CA 90071

Charles A. Rothfeld, Esq.
Mayer Brown
1999 K. Street, N.W.
Washington, DC 20006

Francine F. Griesing, Esq.
Kathryn G. Legge, Esq.
Griesing Law
1717 Arch Street
Suite 360
Philadelphia, PA 19103

       Counsel for the Appellees
                          _____________________________

                                       OPINION*
                             _____________________________

SHWARTZ, Circuit Judge.

       The District Court dismissed this putative class action against American Specialty

Health, Inc. and American Specialty Health Networks, Inc. (collectively, “ASHN”) and

Cigna Corporation and Connecticut General Life Insurance Company (collectively,

“CIGNA”), for alleged violations of the Employee Retirement Income Security Act of

1974 (“ERISA”) related to claims processing and benefit determinations. For the reasons

set forth herein, we affirm in part, vacate in part, and remand for further proceedings.

                                             I1




       *
        This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
                                             3
       CIGNA issues ERISA-governed health insurance plans, oversees coverage

decisions, and provides for payment or reimbursement of benefits to its subscribers.

CIGNA “delegate[s]” to ASHN, a network of more than 21,000 chiropractors that

contracts with health plans, the responsibility for administering its chiropractic-related

insurance claims. JA 54.

       Carol A. Lietz is a subscriber to a CIGNA plan,2 who received chiropractic

services from a chiropractor within the CIGNA network. Lietz’s chiropractor submitted

a claim to ASHN for reimbursement for these services. Although Lietz’s chiropractor

received $88.00, the “Explanation of Benefits” form (“EOB”) Lietz received from

CIGNA stated that the amount billed to her account, and hence applied to her deductible,

was $127.28. Lietz alleges that nothing in the EOB stated that her account would be

billed for more than the $88.00 her provider received. Lietz complained to her

chiropractor about the charge. When he asked ASHN to explain why he received less

than the $127.28 reported to Lietz, ASHN simply told him that he was reimbursed in

accordance with the fee schedule set forth in his contract with ASHN and that any other

agreements concerning the transaction were confidential.




       1
         Because we are reviewing orders dismissing claims based upon Fed. R. Civ. P.
12(b)(1) for lack of standing and 12(b)(6) for failure to state a claim and no other
evidence was provided, we draw these facts from the complaint and assume they are true.
In re Schering Plough Corp. Intron/Temodar Consumer Class Action, 678 F.3d 235, 243
(3d Cir. 2012).
       2
         The Court granted CIGNA’s motion to supplement the record with an affidavit
asserting that Lietz was not a participant in her ERISA-governed CIGNA plan after the
Complaint was filed.
                                              4
       Steven G. Clarke is a chiropractor with High Street Rehabilitation, LLC, whose

patients include those covered by CIGNA health plans. He accepts assignments from

CIGNA insureds that authorize him to receive payment from CIGNA for the services he

provides. The “Assignment of Benefits” (“AOB”) forms state:

              I authorize payment of medical benefits to High Street
              Rehabilitation, LLC for all services rendered. I understand
              that I am financially responsible for all charges whether or
              not they are paid by insurance (commercial, worker’s
              compensation, auto, etc.). In the event of an unpaid balance, I
              am aware that my bill will be sent to the collection agency
              and that I will be held responsible for any and all charges
              incurred, including attorney fees.
JA 78. He contends that this AOB grants him “standing to pursue the ERISA claims.”

JA 48. He alleges that ASHN and CIGNA did not pay him the amounts to which he was

entitled and seeks, among other things, reimbursement for his services.3

       The American Chiropractic Association (“ACA”) is a national association of

chiropractors that seeks to “promote the chiropractic profession and the services of

Doctors of Chiropractic for the benefit of patients they serve.” JA 50. ACA does this by,

among other things, assisting chiropractors and patients who “have been negatively

impacted by improper insurance company policies and procedures.” JA 50.




       3
        Clarke also alleged that the AOB entitled him to obtain other equitable relief but
he withdrew that claim during oral argument. See Oral Argument at 3:42, N. Jersey
Brain & Spine Ctr. v. Aetna, Inc. (No. 14-2101), available at
http://www2.ca3.uscourts.gov/oralargument/audio/14-
2101NJBrainSpineCenterv.Aetna.mp3. As a result, the summary of the Complaint omits
references to the equitable relief he sought.
                                             5
       Lietz, Clarke, and ACA filed a three-count putative class action complaint alleging

that ASHN and CIGNA violated ERISA. Count I is an ERISA benefits claim under 29

U.S.C. § 1132(a)(1)(B). It targets, among other things, CIGNA and ASHN’s allegedly

false and misleading EOBs that “reported a billed amount that was different from the

amount actually billed by the provider[] and where the allowed amount was different

from the allowed amount reported to the provider.” JA 114-15. Lietz seeks to enjoin

CIGNA and ASHN from “pursuing the[se] policies,” and Clarke and Lietz seek

“reimburse[ment of] benefits which were denied or reduced as a result of such policies.”

JA 116. Lietz and ACA also seek “declaratory and injunctive relief” to enforce the plan

terms and to “clarify their rights to future benefits.” JA 116.

       Count II is an ERISA breach of fiduciary duty claim under 29 U.S.C. § 1132(a)(3).

It alleges that CIGNA and ASHN breached their fiduciary duties under ERISA through

“falsification of EOBs” and “various ASHN policies which are designed to discourage

the provision of chiropractic care.” JA 116. Lietz and ACA seek “appropriate equitable

relief,” including the removal of CIGNA and ASHN as fiduciaries of their ERISA plans.

JA 117.

       Count III alleges that CIGNA and ASHN have violated various state anti-

discrimination, prompt pay, and “utilization management” statutes for which ACA alone

seeks “appropriate declaratory and injunctive relief.” JA 117.

       The District Court dismissed the complaint pursuant to Fed. R. Civ. P. 12(b)(1)

and 12(b)(6) for lack of statutory standing and for failure to state a claim. As to Lietz, the


                                              6
District Court held that she failed to show that she exhausted the administrative remedies

set forth in CIGNA’s plan or that doing so would be futile. As to Clarke, the District

Court held that he lacked standing because the AOB assigned him only the right to

receive reimbursement from his patient’s insurance carrier, not the right to “pursue

litigation under ERISA.” Am. Chiropractic Ass’n v. Am. Specialty Health Inc., 14 F.

Supp. 3d 619, 628 (E.D. Pa. 2014). Finally, as to ACA, the District Court held that it

lacked associational standing because it failed to show that any of its members had

standing in their own right and that its claims would not require their individualized

participation.

                                             II4

       We conduct plenary review of an order dismissing a complaint under Rule

12(b)(1) for lack of standing and 12(b)(6) for failure to state a claim. In re Schering

Plough Corp. Intron/Temodar Consumer Class Action, 678 F.3d 235, 243 (3d Cir. 2012).

When reviewing both types of dismissals, we “must accept as true all material allegations

set forth in the complaint, and must construe those facts in favor of the nonmoving

party.” Id. We will address Lietz’s, Clarke’s, and ACA’s claims in turn.

                                             III

                                             A




       4
        The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction
under 28 U.S.C. § 1291.
                                              7
       The District Court dismissed Lietz’s claims for failing to exhaust her

administrative remedies or to show that she should be excused from having to exhaust

them. Except in limited circumstances, we “will not entertain an ERISA claim unless the

plaintiff has exhausted the remedies available under the plan.” Harrow v. Prudential Ins.

Co. of Am., 279 F.3d 244, 249 (3d Cir. 2002) (quotation marks omitted). Exhaustion is a

judicially created “nonjurisdictional prudential” requirement, Metro. Life Ins. Co. v.

Price, 501 F.3d 271, 279 (3d Cir. 2007), that plaintiffs must satisfy for ERISA benefits

claims but not for claims arising from violations of ERISA’s substantive provisions, such

as breach of fiduciary duty claims, Zipf v. Am. Tel. & Tel. Co., 799 F.2d 889, 891-93 (3d

Cir. 1986). The ERISA exhaustion requirement is an affirmative defense, so the

defendant bears the burden of proving failure to exhaust. Price, 501 F.3d at 280; Paese v.

Hartford Life & Accident Ins. Co., 449 F.3d 435, 446 (2d Cir. 2006).5

       Here, the District Court erred by shifting the burden onto Lietz to establish that

she had exhausted her administrative remedies instead of requiring CIGNA and ASHN to

demonstrate that she had not. See, e.g., Price, 501 F.3d at 280 (citing Paese, 449 F.3d at

446). It cannot be conclusively established from the complaint whether Lietz failed to

adequately pursue her administrative remedies or whether it would have been futile for

her to have done so given the allegations that the defendants misled her about the benefits

       5
         Because the exhaustion defense often requires consideration of materials outside
the pleadings and is thus typically resolved on summary judgment, see, e.g., Harrow, 279
F.3d at 249-52, it is not generally the basis for dismissal under Rule 12(b)(6). Whether
failure to exhaust “may be the basis for dismissal for failure to state a claim depends on
whether the allegations in the complaint suffice to establish that ground, not on the nature
of the ground in the abstract.” Jones v. Bock, 549 U.S. 199, 215 (2007).
                                             8
she was receiving and employed a uniform policy of denying similar benefits requests.

We will therefore vacate the District Court’s dismissal of Lietz’s claims in Count I.6

       The District Court also erred in dismissing Count II on exhaustion grounds. Count

II purports to assert a claim for breach of fiduciary duty under 29 U.S.C. § 1132(a)(3).

As stated above, we generally apply the exhaustion requirement only to a claim “for a

denial of ERISA benefits,” not to one “arising from violations of [ERISA’s] substantive

statutory provisions.” Harrow, 279 F.3d at 252. While it is true that the exhaustion

requirement may still apply where an ERISA benefits claim is merely “recast” or

“artfully plead[ed]” as one for breach of fiduciary duty, id. at 252-53, the District Court

did not conduct this analysis.7 Thus, we are left to conclude that the District Court

simply applied its exhaustion ruling to a cause of action for which exhaustion may not

have been required. For these reasons, we will vacate the dismissal of Count II.

       This, however, does not end our discussion concerning Lietz’s claims. After this

appeal was filed, CIGNA supplemented the record asserting that Lietz is no longer a


       6
          Nothing herein bars the parties from addressing exhaustion via summary
judgment motions.
        7
          An ERISA fiduciary duty claim is “actually” one for benefits “where the
resolution of the claim rests upon an interpretation and application of an ERISA-
regulated plan rather than upon an interpretation and application of ERISA.” Harrow,
279 F.3d at 254 (quotation marks omitted); compare id. at 254-55 (classifying plaintiff’s
challenge to denial of coverage for Viagra prescriptions a benefits claim rather than a
breach of fiduciary duty claim), with In re Unisys Corp. Retiree Med. Benefit ERISA
Litig., 57 F.3d 1255, 1264 (3d Cir. 1995) (“[W]hen a plan administrator affirmatively
misrepresents the terms of a plan or fails to provide information when it knows that its
failure to do so might cause harm, [it] has breached its fiduciary duty . . . .”). We leave
for the District Court to decide whether Count II states a breach of fiduciary claim, is
actually one for benefits, or neither.
                                              9
participant in a CIGNA plan. As a result, there is a question as to whether she is entitled

to pursue her requests for declaratory or injunctive relief. We will therefore remand to

the District Court to decide whether she remains a CIGNA participant or beneficiary and,

if not, whether that renders moot her claims seeking declaratory or injunctive relief. See

Harrow, 279 F.3d at 249.

                                               B

       We next review the dismissal of Clarke’s reimbursement claim for lack of

standing. A plaintiff must have “constitutional, prudential, and statutory standing” to

bring a civil action under ERISA. Leuthner v. Blue Cross & Blue Shield of Ne. Pa., 454

F.3d 120, 125 (3d Cir. 2006). ERISA allows a “participant [in] or beneficiary” of an

ERISA plan to bring a civil action to “recover benefits due to him under the terms of his

plan, to enforce his rights under the terms of the plan, or to clarify his rights to future

benefits under the terms of the plan.” 29 U.S.C. § 1132(a)(1)(B). A medical provider

may also “obtain standing to sue by assignment from a plan participant.” CardioNet, Inc.

v. CIGNA Health Corp., 751 F.3d 165, 176 n.10 (3d Cir. 2014).

       Here, Clarke received an assignment from his patients “authoriz[ing] payment of

medical benefits to High Street Rehabilitation, LLC for all services rendered.”8 JA 78.

We recently held that an assignment of the right to payment also assigns the right to




       8
        For the reasons set forth in note 3, supra, Clarke is deemed to have withdrawn his
requests for declaratory and injunctive relief under Count I and for any relief under Count
II.
                                               10
enforce that right by bringing suit under ERISA to collect money owed.9 N. Jersey Brain

& Spine Ctr. v. Aetna, Inc., No. 14-2101, --- F.3d --- (3d Cir. Sept. 11, 2015). Such an

assignment “serves the interest of patients by increasing their access to care” and reduces

the likelihood of medical providers “billing the beneficiary directly and upsetting his

finances.” CardioNet, 751 F.3d at 179 (quotation marks omitted). Moreover, the right to

enforce recognizes that, as compared to patients, most providers “are better situated and

financed to pursue an action for benefits owed for their services.” Conn. State Dental

Ass’n v. Anthem Health Plans, Inc., 591 F.3d 1337, 1352-53 (11th Cir. 2009) (quotation

marks omitted).

       While Clarke’s assignment made clear that the patient remained “financially

responsible for all charges whether or not they are paid by insurance,” JA 78, this does

not mean that the assignment did not give him the right to take steps to collect payment

       9
         Our ruling is consistent with those reached by our sister circuit courts.
Montefiore Med. Ctr. v. Teamsters Local 272, 642 F.3d 321, 330-32 (2d Cir. 2011)
(holding that the medical provider’s having been assigned the “right to reimbursement”
from its patients “forms the ERISA-related basis for legal action regarding those claims
for reimbursement” (quotation marks omitted)); Conn. State Dental Ass’n v. Anthem
Health Plans, Inc., 591 F.3d 1337, 1352 (11th Cir. 2009) (“Our own cases confirm that
assignment of the right to payment is enough to create standing.”); Tango Transp. v.
Healthcare Fin. Servs. LLC, 322 F.3d 888, 894 (5th Cir. 2003) (“denying derivative
standing to health care providers would harm participants or beneficiaries because it
would discourage providers from becoming assignees and possibly from helping
beneficiaries who were unable to pay them up-front” (quotation marks omitted)); I.V.
Servs. of Am., Inc. v. Inn Dev. & Mgmt., Inc., 182 F.3d 51, 54 n.3 (1st Cir. 1999)
(“Benefits Assignment Form” at issue “easily clears th[e] low hurdle” of ERISA standing
notwithstanding that form allegedly “only assigned” plan participant’s right to “receive
payments, not her other rights, including the right to file suit”); Misic v. Bldg. Serv.
Emps. Health & Welfare Trust, 789 F.2d 1374, 1376, 1379 (9th Cir. 1986) (finding
derivative standing for dentist who “provided dental services to beneficiaries of the trust,
who in return assigned Dr. Misic their rights of reimbursement from the trust”).
                                             11
from the patient’s insurer.10 As other courts have held, a patient’s continued

responsibility to pay her provider amounts not covered by the insurance carrier is not a

basis to vitiate the assignment. See, e.g., Tango Transp. v. Healthcare Fin. Servs. LLC,

322 F.3d 888, 889, 892-93 (5th Cir. 2003). It is fair “to expect that a patient who

receives medical care will be required to pay for it,” Montefiore Med. Ctr. v. Teamsters

Local 272, 642 F.3d 321, 330 (2d Cir. 2011), and that “[i]f provider-assignees cannot

[obtain an assignment to] sue the ERISA plan for payment, they will bill the participant

or beneficiary directly for the insured medical bills.” Cagle v. Bruner, 112 F.3d 1510,

1515 (11th Cir. 1997) (per curiam). Thus, the AOB affords Clarke standing to sue his




       10
         We note that Clarke’s AOB assigns him the right to sue his patient’s insurance
company—presumably depriving the patient of this right—and the right to seek payment
from his patient. It does not, however, require Clarke to first seek payment from the
insurance company. Thus, the AOB could place the patient in the position of being sued
for payment by the doctor but being precluded from obtaining reimbursement from the
insurance company because she gave that right to the doctor. Because this appeal
concerns Clarke’s invocation of the AOB only to sue CIGNA and ASHN, we need not
address whether this scenario vitiates the assignment.
                                            12
patients’ insurers for reimbursement for services he provided,11 and we will therefore

vacate the order dismissing Clarke’s claims for reimbursement under Count I.12

                                             C

       Finally, we examine the District Court’s dismissal of ACA’s claims for lack of

associational standing. Generally, an association or organization “may” have standing to

sue “where (1) the organization itself has suffered injury to the rights and/or immunities it

enjoys; or (2) where it is asserting claims on behalf of its members and those individual

members have standing to bring those claims themselves.” Blunt v. Lower Merion Sch.

Dist., 767 F.3d 247, 279 (3d Cir. 2014). When an association or organization sues on

behalf of its members—as here—“it is claiming that it has representational standing.” Id.

An entity has associational or representational standing when:

              (a) its members would otherwise have standing to sue in their
              own right; (b) the interests it seeks to protect are germane to
              the organization’s purpose; and (c) neither the claim asserted
              nor the relief requested requires the participation of individual
              members in the lawsuit.

       11
          Clarke also has Article III standing to pursue this relief, as he alleges that he
sustained an injury in fact by the defendants’ failure to fully pay for the services he
rendered that he contends were covered by the CIGNA plan. See Spinedex Physical
Therapy USA Inc. v. United Healthcare of Ariz., Inc., 770 F.3d 1282, 1287-91 (9th Cir.
2014) (holding that medical provider had Article III standing under form assigning its
patients’ “rights and benefits” even though medical provider “ha[d] not sought payment
from its assigning patients for any shortfall” prior to bringing suit); N. Cypress Med. Ctr.
Operating Co., Ltd. v. Cigna Healthcare, 781 F.3d 182, 193-94 (5th Cir. 2015) (following
Spinedex and noting that “[t]he fact that the patient assigned her rights elsewhere does
not cause them to disappear” so as to deprive provider–assignee Article III standing).
       12
          Because Clarke’s assignment places him in the shoes of his CIGNA-insured
patients, Clarke must satisfy any applicable pre-suit conditions before suing for
reimbursement, such as exhaustion. We leave for the District Court to determine whether
Clarke has done so or should be excused from doing so.
                                             13
Addiction Specialists, Inc. v. Twp. of Hampton, 411 F.3d 399, 405 (3d Cir. 2005)

(quoting Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977)).

       To meet the first prong, the association must allege facts demonstrating that its

members “would have standing in their own right.” Goode v. City of Phila., 539 F.3d

311, 325 (3d Cir. 2008). In practice, this means that the association “must ‘make specific

allegations establishing that at least one identified member had suffered or would suffer

harm.’” Blunt, 767 F.3d at 280 (quoting Summers v. Earth Island Inst., 555 U.S. 488,

498 (2009)). Under the second prong, the interests that the association seeks to protect

must be germane to its purpose. Under the third prong, the association must demonstrate

that neither its claims nor its requested relief “requires the participation of individual

members in the lawsuit.” Hunt, 432 U.S. at 343. While the need for “some” level of

individual participation “does not necessarily bar associational standing,” Pa. Psychiatric

Soc’y v. Green Spring Health Servs., Inc., 280 F.3d 278, 283 (3d Cir. 2002), such

standing is permitted only where the claims do not require “a fact-intensive-individual

inquiry,” id. at 286. Because claims for monetary relief often require such an individual

inquiry, associations “generally” cannot sue for monetary damages. Id. at 284; United

Food & Commercial Workers Union Local 751 v. Brown Grp., Inc., 517 U.S. 544, 546

(1996). Where associations seek injunctive or declaratory relief, however, participation

of the individual members “may be unnecessary.” Pa. Psychiatric Soc’y, 280 F.3d at 284

n.3.



                                              14
       Applying these considerations, we conclude that ACA lacks associational

standing. Although Clarke, an individual member, has standing, he only seeks monetary

reimbursement for services he provided to CIGNA-insured patients. The scope of his

standing thus permits him to seek a type of relief that associations generally are not

permitted to pursue on their members’ behalf. Blunt, 767 F.3d at 289 (finding no

associational standing where “individual student plaintiffs are seeking monetary

reimbursement” such that “organizational representation of th[em would be] insufficient

without their personal participation in this litigation”). Because ACA has not shown that

any of its members possess standing to seek non-monetary relief, ACA lacks

representational standing and the District Court correctly dismissed its ERISA and state

law claims. Goode, 539 F.3d at 325.13

                                             IV

       For the foregoing reasons, we will: (1) with respect to Count I, vacate the order

dismissing Lietz’s claims and Clarke’s claims for reimbursement and remand, but affirm

the order dismissing ACA’s claims; (2) with respect to Count II, vacate the order

dismissing Lietz’s claims and remand, but affirm the order dismissing Clarke’s and

ACA’s claims; and (3) with respect to Count III, affirm the order dismissing ACA’s

claims.




       13
          The District Court declined to exercise supplemental jurisdiction over the state
law claims ACA alleged in Count III, 28 U.S.C. § 1367(c). We may affirm this dismissal
“on any ground supported by the record,” Tourscher v. McCullough, 184 F.3d 236, 240
(3d Cir. 1999), and do so here.
                                             15
