           Case: 17-13113   Date Filed: 08/24/2018   Page: 1 of 5




                                                       [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-13113
                      ________________________

                    D.C. Docket No. 1:17-cv-00077-AT



W.A. GRIFFIN, MD,

                                                            Plaintiff-Appellant,

                                  versus

AETNA HEALTH INC.,
COVENTRY HEALTHCARE OF
GEORGIA, INC.,
                                                        Defendants-Appellees.


                      ________________________

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

                            (August 24, 2018)
                Case: 17-13113        Date Filed: 08/24/2018       Page: 2 of 5




Before TJOFLAT and JORDAN, Circuit Judges, and HINKLE, * District Judge.

HINKLE, District Judge:

       Dr. W.A. Griffin, a dermatologist, brought this action against Coventry

Healthcare of Georgia and a related entity, Aetna Health Inc., to collect statutory

penalties under the Employee Retirement and Income Security Act, 29 U.S.C.

§ 1001 et seq. The district court dismissed the action as outside the statute of

limitations. We affirm, but on other grounds. See Powers v. United States, 996

F.2d 1121, 1123 (11th Cir. 1993) (holding that a judgment may be affirmed on a

basis different from that adopted by the district court).

       Dr. Griffin’s claims arise out of treatment she provided to five patients, each

of whom was a member of an employer-sponsored health plan governed by

ERISA. Each patient assigned the right to benefits to Dr. Griffin, and Dr. Griffin

submitted a claim to Coventry for the cost of treatment. Dr. Griffin asserts that

Coventry was the plan administrator. Coventry paid a portion of each claim. Dr.

Griffin appealed and asked for a copy of the summary plan description. Coventry

did not provide the summary plan description and still has not done so.

       ERISA requires a “plan administrator” to provide a “summary plan

description” upon written request of a plan participant or beneficiary. 29 U.S.C.


       *
          Honorable Robert L. Hinkle, United States District Judge for the Northern District of
Florida, sitting by designation.
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§ 1024(b)(4). ERISA gives a plan participant or beneficiary a civil cause of action

against a plan administrator who fails to provide a summary plan description

within 30 days. Id. § 1132(a), (c). A plan participant or beneficiary may collect

monetary penalties from a noncomplying plan administrator of up to $100 per day.

Id.

      Dr. Griffin brought an earlier action under this statute against Coventry and

Aetna arising from the treatment of these same patients. There, too, Dr. Griffin

claimed that Coventry owed her statutory penalties for failing to provide a copy of

the summary plan description. The district court dismissed the claim, holding that

the patients did not assign their rights to sue under ERISA for statutory penalties.

See Griffin v. Aetna Health Inc., No. 1:15-cv-3750-AT (N.D. Ga. June 2, 2017).

The district court interpreted the assignments as conferring only the right to receive

benefits. Dr. Griffin did not appeal.

      After dismissal, Dr. Griffin obtained a second assignment from each patient

that explicitly conferred the right to sue for statutory penalties. Each new

assignment purported to “retroactively” convey the right to sue for statutory

penalties.

      The parties disagree on whether a person may “retroactively” assign rights

against a third person. But that framing of the issue misses the forest for the trees.




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The critical question is whether Coventry violated the statute by denying Dr.

Griffin’s request for the summary plan description. The answer is no.

      The explanation is this. When Dr. Griffin requested the summary plan

description, she had no right to it. The district court settled this issue in the earlier

lawsuit, and Dr. Griffin did not appeal. She does not challenge that ruling in this

case. The patients had a right to the document at the time of Dr. Griffin’s request,

but the patients did not request the document.

      This means that when Coventry failed to provide the summary plan

description to Dr. Griffin, Coventry did not violate the statute. Dr. Griffin later

obtained assignments of the right to request a copy, but she did not again request a

copy. So even if, as Dr. Griffin asserts, the new assignments conveyed any right

the patients had to statutory penalties, this makes no difference, because the

patients had no right to statutory penalties. They had never requested or been

denied a copy of the summary plan description.

       In sum, because Coventry did not fail to provide a copy of the summary plan

description in response to a request by a person who was entitled to a copy at the

time of the request, Coventry did not violate the statute. Coventry is not liable for

statutory penalties for violations it did not commit.




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      This holding makes it unnecessary to address the other grounds on which

Coventry and Aetna moved to dismiss. The statute of limitations for an ERISA

claim of this kind is borrowed from state law. Relying on circuit precedent, the

district court applied a one-year limitations period. See Harrison v. Digital Health

Plan, 183 F.3d 1235, 1238 n.1 (11th Cir. 1999); see also Cummings v. Wash. Mut.,

650 F.3d 1386, 1391 n.4 (11th Cir. 2011). Dr. Griffin asserts those decisions did

not survive the Georgia Supreme Court’s decision in Western Sky Financial v.

State ex rel. Olens, 300 Ga. 340, 793 S.E.2d 357 (2016). Because, as set out above,

this complaint was properly subject to dismissal on the merits, we need not decide

whether the limitations period for an ERISA claim for statutory penalties in

Georgia is one year, see O.C.G.A. § 9-3-28, or six years, see O.C.G.A. § 9-3-24, or

twenty years, see O.C.G.A. § 9-3-22. We also need not decide whether Coventry

was the plan administrator.

      For these reasons, the judgment dismissing this action is affirmed.




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