           Case: 15-13525    Date Filed: 01/12/2016   Page: 1 of 12


                                                       [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                              No. 15-13525
                          Non-Argument Calendar
                        ________________________

                     D.C. Docket No. 1:15-cv-00569-AT



W. A. GRIFFIN,

                                                       Plaintiff-Appellant,

                                  versus

VERIZON COMMUNICATIONS, INC.,

                                                       Defendant-Appellee.

                        ________________________

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

                             (January 12, 2016)

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.

                                                    I.

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

two patients insured under a Verizon Communications Inc. (“Verizon”) health plan

(the “Plan”). 1 Dr. Griffin is an out-of-network provider for the Plan. The patients

executed assignments 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 participation status.” Legal Assignment of Benefits (Doc. 1-1). 2 The

assignments further stated that they were “valid for all administrative and judicial

review under . . . ERISA.” Id.

       Verizon sponsors the Plan, which is a group health benefit plan governed by

ERISA, and serves as the plan administrator. The Plan includes two options for

coverage, one of which offers coverage for out-of-network providers and one that

       1
          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 Summaries of
Coverage, which Verizon 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 the
documents 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
           Citations to “Doc.” refer to docket entries in the district court record in this case.
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does not. Blue Cross Blue Shield of Georgia (“BCBSGA”) serves as the Plan’s

claims administrator to review and decide claims and appeals under the Plan. Plan

documents generally prohibit the assignment of benefits without written consent:

      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 or federal law. . . . The
      coverage and any benefits under the plan are not assignable by any
      covered member without the written consent of the plan, except as
      provided above.

Summary of Coverage for Exclusive Provider Network Option at 41 (Doc. 8-5);

Summary of Coverage for PPO Plus at 49 (Doc. 8-6). Even though Plan

documents generally bar assignments, BCBSGA is authorized to make payments

directly to healthcare providers for covered services.

      Dr. Griffin provided emergency services to an insured who had no out-of-

network coverage. When she submitted the claim to BCBSGA, it denied coverage.

She asserts that the denial was erroneous because the Affordable Care Act requires

BCBSGA to provide coverage for emergency services without regard to whether

the healthcare provider was an in-network provider. Dr. Griffin filed with

BCBSGA a level one administrative appeal, which was denied. She then filed a

level two administrative appeal. With the level two appeal, she requested at least

ten categories of documents from BCBSGA and demanded that BCBSGA notify

her whether the Plan contained an anti-assignment clause, warning that if it failed



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to do so, she would argue in litigation that the anti-assignment clause was

unenforceable. It appears BCBSGA never responded to the level two appeal.

       Dr. Griffin also provided medical services to a second insured under the Plan

who elected out-of-network coverage. Dr. Griffin submitted a claim to BCBSGA

for her services, which she alleges that BCBSGA underpaid. She filed with

BCBSGA a level one administrative appeal, which was denied. She then filed a

level two administrative appeal. Just as she did for the services provided to the

first insured, with her appeal, she requested documents from BCBSGA and

demanded that it notify her whether the Plan contained an anti-assignment clause,

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

In response, BCBSGA sent her the relevant summary of coverage and a plan

design document.3

       Dr. Griffin sued Verizon in federal court, bringing ERISA claims for unpaid

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

sought $8,158.06 in unpaid benefits, more than $119,000 in penalties, and

declaratory relief. Verizon 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

       3
          Dr. Griffin did not provide the district court with a copy of the Plan documents that
BCBSGA sent her and said nothing in her complaint about whether the documents disclosed the
anti-assignment provision. The Summaries of Coverage that Verizon filed with the district court
included the anti-assignment provision.
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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

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


                                           5
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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

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


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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, 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.




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                                               A.

       In this case, the insureds’ assignments purported to transfer to Dr. Griffin

their 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 assignments transferred to Dr. Griffin the right to

bring a cause of action under section 502(a) for unpaid benefits. 4 Because the anti-

assignment provision bars the assignments here, we hold that the insureds’

assignments to Dr. Griffin are void. 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 or federal law. . . . The coverage and any benefits
       under the plan are not assignable by any covered member without the
       written consent of the plan, except as provided above.

See, e.g., Summary of Coverage for Exclusive Provider Network Option at 41

(Doc. 8-5). Although the anti-assignment provision permits assignments when the

Plan gives written consent, there is no allegation or evidence that such permission

was given here.



       4
         Although the assignments transferred to Dr. Griffin the insured’s right to sue under
section 502(a) of ERISA for unpaid benefits, the assignments contained no provision transferring
the insureds’ right to assert claims for breach of fiduciary duty or civil penalties. Because the
insureds 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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       The provision permits assignments “required by a ‘Qualified Medical Child

Support Order’ as defined by ERISA or any applicable state or federal law.” Id.

Construing this provision to mean that the Plan must permit assignments that are

required by state or federal 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 “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

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

       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 or federal 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 or federal law. Under the second interpretation, the insureds’ assignments to Dr.
Griffin would be void because they were 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 or federal law.
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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

insureds assigned benefits to Dr. Griffin, the assignments are void.

                                                 B.

       Dr. Griffin argues that Verizon cannot rely on the anti-assignment provision

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

two administrative appeals whether the Plan contained such a term. 7 Liberally

construed, Dr. Griffin’s argument is that because BCBSGA failed to disclose the

anti-assignment term, Verizon 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


       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 anti-assignment
provisions unenforceable and decline to hold that the statute implicitly bars anti-assignment
provisions.
       7
          Dr. Griffin conceded in her complaint that BCBSGA sent her at least one Summary of
Coverage document after she filed a level two appeal. Her complaint makes no allegation (and
her brief does not detail) whether the Summary of Coverage document she received contained an
anti-assignment provision, like the one that Verizon filed. Because Dr. Griffin’s complaint
alleged that BCBSGA failed to provide her all the information she needed, which we liberally
construe to mean that she never received a Plan document disclosing the anti-assignment
provision, we accept as true for purposes of this appeal that BCBSGA failed to inform her of the
Plan’s anti-assignment provision.
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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 Verizon 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 Verizon 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 Verizon intentionally

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

interaction or communication with Verizon before she filed this lawsuit. Although

she argues on appeal that BCBSGA failed to inform her of the anti-assignment


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provision during the administrative appeal process, even liberally construing her

pleadings and accepting her allegations as true, we find these allegations

insufficient to establish a “clear case” that Verizon intentionally and voluntarily

relinquished its rights under the anti-assignment provision. Id.8

                                               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 Verizon. 9

       AFFIRMED.




       8
         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.
       9
         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.
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