     Case: 13-30264       Document: 00512377543         Page: 1     Date Filed: 09/18/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        September 18, 2013

                                     No. 13-30264                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



VICTORIA HAMANN, individually and on behalf of the decedent, Dean
Hamann; NICOLE HAMANN, individually and on behalf of the decedent,
Dean Hamann; JESSICA HAMANN, individually and on behalf of the
decedent, Dean Hamann; SARAH HAMANN, individually and on behalf of
the decedent, Dean Hamann; NATALIE HAMANN, individually and on
behalf of the decedent, Dean Hamann,


                                                                  Plaintiffs - Appellants

v.

INDEPENDENCE BLUE CROSS; AMERIHEALTH ADMINISTRATORS,
INCORPORATED,


                                                                  Defendants - Appellees



                   Appeal from the United States District Court
                       for the Eastern District of Louisiana
                             USDC No. 2:12-CV-2545


Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                 No. 13-30264

      Plaintiffs Victoria Hamann, Nicole Hamann, Jessica Hamann, Sarah
Hamann, and Natalie Hamann, individually and on behalf of the decedent, Dean
Hamann, (the “Plaintiffs”) appeal the district court’s grant of Independence Blue
Cross and Amerihealth Administrators, Inc.’s (the “Defendants”) motion to
dismiss the Plaintiffs’ claims under ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)
(2006). We AFFIRM.
                                         I.
      Dean Hamann was diagnosed with chronic lymphocytic leukemia and later
developed myelodysplatic syndrome.           As a result, physicians treating Mr.
Hamann requested that the Defendants approve stem cell transplant (“SCT”)
therapy along with a trial study. Although Mr. Hamann’s benefits plan (“the
Plan”) covered SCT therapy, the Defendants denied the request because the Plan
excluded coverage for trial studies. In their denial of coverage, the Defendants
did not state that SCT therapy would be approved if requested without the trial
study.   Mr. Hamann’s doctors appealed the denial, again requesting SCT
therapy along with a trial study. The Defendants once again denied coverage,
stating the requested treatment was “experimental” and, therefore, not covered
under the Plan. Mrs. Hamann contacted Amerihealth Administrators—the
Plan’s administrators—directly and was told the Defendants denied coverage for
SCT therapy because it was not requested apart from the trial study, which
could not be covered under the Plan. Mr. Hamann’s doctors once again appealed
the denial of coverage, requesting SCT therapy combined with a trial study, or,
in the alternative, SCT therapy alone.
      This time, more than three months after the initial request, the
Defendants approved the SCT therapy but not the trial study. Unfortunately,
by the time the approval was granted, Mr. Hamann’s health had deteriorated.
Consequently, he could not undergo SCT therapy and died shortly thereafter.



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                                         No. 13-30264

      The Plaintiffs sued, alleging the Defendants violated their duty to fairly
and timely approve the benefits due Mr. Hamann under the Plan. The Plaintiffs
requested the full value of SCT therapy under ERISA § 502(a)(1)(B). They also
asserted a cause of action for survival and wrongful death under Louisiana Civil
Code articles 2315.1 and 2315.2.
      The Defendants filed a motion to dismiss, which the district court granted.
The district court held that the Plaintiffs’ state law claims were preempted by
ERISA and that § 502(a)(1)(B) does not allow individuals to recover the value of
the benefits due when the beneficiary never received the medical care.
      The Plaintiffs appealed, arguing that despite Mr. Hamman never having
received or paid for the requested treatment, §502(a)(1)(B) allows them to
recover the value of the SCT therapy as a “benefit owed” under the Plan.1
                                                II.
      We review de novo a district court’s grant of a motion to dismiss under
Federal Rule of Civil Procedure12(b)(6), “accepting all well-pleaded facts as true
and viewing those facts in the light most favorable to the plaintiffs.” Dorsey v.
Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008) (citation and internal
quotation marks omitted). “When there are well-pleaded factual allegations, a
court should assume their veracity and then determine whether they plausibly
give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
                                               III.
      Congress enacted ERISA to “protect . . . the interests of participants in
employee benefit plans and their beneficiaries.” 29 U.S.C. § 1001(b). ERISA
includes expansive preemption provisions, as well as a comprehensive legislative
scheme, including “an integrated system of procedures for enforcement.” Mass.
Mut. Life. Ins. Co. v. Russell, 473 U.S. 134,147 (1985). ERISA § 502(a)(1)(B)


      1
          Plaintiffs did not appeal the district court’s dismissal of their state-law claims.

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provides a cause of action to “a participant or beneficiary . . . 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.”
§ 1132(a)(1)(B). The Supreme Court has interpreted this statutory provision
narrowly, stating that it does not permit the recovery of extracontractual
damages or damages based on undue delay in administration of a disputed
claim. Russell, 473 U.S. at 144. Instead, a plain reading of this provision
provides that when a “participant or beneficiary believes that benefits promised
to him under the terms of the plan are not provided, he can bring suit seeking
provision of those benefits.” Aetna Health Inc. v. Davila, 542 U.S. 200, 210-11
(2004) (noting that when benefits are denied, the participant or beneficiary can
either pay for the treatment and then seek “reimbursement through a §
502(a)(1)(B) action, or . . . [seek] a preliminary injunction”).
      Importantly, the relief provided by § 502(a)(1)(B)—the right to sue to
receive benefits (or reimbursement for payments made)—is exclusive of other
remedies. See Russell, 473 U.S. at 145-47 (rejecting an argument that § 502(a)(1)
provides a damages remedy when undue delay causes harm to a beneficiary, and
holding that “[t]he federal judiciary will not engraft a remedy on a statute, no
matter how salutary, that Congress did not intend to provide” (citation and
quotation marks omitted)); Medina v. Anthem Life Ins. Co., 983 F.2d 29, 31 (5th
Cir. 1993) (“Had Congress intended to develop ERISA remedies additional to the
ones it specifically crafted, it has had ample opportunity to enact such
legislation. Since Congress has not translated its intent into law, we are loathe
to take this initiative on our own.”).
      Despite our settled precedent holding that the relief specifically provided
by ERISA is exhaustive, the Plaintiffs argue that § 502(a)(1)(B) also permits
recovery of the value of benefits that the Defendants should have approved and
paid for under the Plan.       We must reject the Plaintiffs’ position.       While

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                                       No. 13-30264

§ 502(a)(1)(B) allows beneficiaries and plan participants to recover benefits to
which they are entitled, it does not provide that beneficiaries can recover
benefits they did not, and now cannot, receive. As the Court stated in Davila,
the civil remedies provision allows an individual to recover the value of benefits
wrongly withheld only as reimbursement if he pays for the wrongfully denied
treatment. 542 U.S. at 211. There is nothing in § 502(a)(1)(B) to suggest that
this provision can be used to require the Defendants to pay the value of a benefit
that was never received.2 See Transamerica Mortg. Advisors, Inc. v. Lewis, 444
U.S. 11, 19 (1979) (“[W]here a statute expressly provides a particular remedy or
remedies, a court must be chary of reading others into it.”).
       Thus, the only available remedies against the Defendants in this case were
for Mr. Hamann to petition for the benefits or to pay for the treatment and seek
reimbursement under the plan.3 Davila, 542 U.S. at 211. While the Defendants’
approval of the SCT therapy tragically came too late for Mr. Hamann, we are
bound by the specific relief provided by Congress under § 502(a)(1)(B) and,
therefore, must AFFIRM the district court’s dismissal of the Plaintiffs’ claim.




       2
        The Ninth Circuit has held, in similar circumstances, that because the remedies
provided by ERISA § 502(a)(1)(B) are exhaustive, restitution is not available for a procedure
that could not be completed due to the administration delaying its approval. Bast v.
Prudential Ins. Co. of Am., 150 F.3d 1003, 1010 (9th Cir. 1998).
       3
         Based on the court’s reasoning in Erwin v. Texas Health Choice, L.C., 187 F. Supp.
2d 661 (N.D. Tex. 2002), the Plaintiffs urge that foreclosing this remedy provides an incentive
for insurance companies to deny claims for expensive services “because the patient likely
would not have enough resources to pay for the services on his own, and the plan
administrator would therefore escape responsibility for paying for the services in the event the
patient dies.” Id. at 669. We are without power to address this concern, because we are bound
by ERISA’s terms which do not provide the relief the Plaintiffs seek. See Medina, 983 F.2d at
31. It is for Congress to evaluate the policy arguments Plaintiffs make.

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