              Case: 12-14569     Date Filed: 04/22/2013   Page: 1 of 7


                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 12-14569
                             Non-Argument Calendar
                           ________________________

                      D.C. Docket No. 9:11-cv-81351-DMM



BRIAN FOX,

                                                          Plaintiff - Appellant,

                                       versus

BLUE CROSS AND BLUE SHIELD OF FLORIDA INC.,

                                                          Defendant - Appellee.

                           ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         ________________________

                                  (April 22, 2013)

Before CARNES, BARKETT and KRAVITCH, Circuit Judges.

PER CURIAM:

      Brian Fox appeals the district court’s dismissal of his claim that Blue Cross

and Blue Shield of Florida, Inc., (Blue Cross) failed to disclose information
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required by the Employee Retirement Income Security Act of 1974 (ERISA), 29

U.S.C. § 1024(b)(4). Fox also appeals the district court’s grant of summary

judgment in favor of Blue Cross on whether Blue Cross paid the proper benefit

amount under Fox’s employee welfare benefit plan (Plan). After careful review,

we affirm.

                                                I.

       In 2008, Fox underwent brain surgery performed by an out-of-network

physician. Under the terms of Fox’s Plan, Blue Cross agreed to pay 100% of the

“Allowed Amount” for the surgery. The Plan defines “Allowed Amount” for an

out-of-network physician as “the lesser of the Provider’s actual charge or an

amount established by [Blue Cross] based on several factors,” including the charge

reimbursable by Medicare for the services performed. 1

       The actual charge for Fox’s surgery was $29,000, but Blue Cross calculated

the Allowed Amount as $2,729.48, leaving Fox responsible for the difference. Fox

appealed this decision to Blue Cross’s appeals department. Blue Cross reviewed

Fox’s case, verified that it had properly calculated and paid the Allowed Amount,

and concluded that Fox was not entitled to any additional payment. On July 23,

2008, Blue Cross sent Fox a letter explaining the reasons for its denial of his

1
  Fox argues vigorously that “Allowed Amount” means only the provider’s actual charge. But
the partial quotation of the Plan’s definition, which he takes out of context to support this
reading, plainly contradicts the Plan’s actual language. We therefore do not further address this
frivolous argument.


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appeal. Fox then requested copies of all relevant documents Blue Cross used to

make the decision. Blue Cross responded with documentation verifying that it had

paid 100% of the Allowed Amount but did not furnish documents explaining how

it calculated the Allowed Amount or how it had verified that the Allowed Amount

had been correctly calculated.

      Fox sued, alleging that Blue Cross: (1) violated the Plan by failing to pay

the full amount of the actual charge; and (2) violated the disclosure requirements of

29 U.S.C. § 1024(b)(4) by failing to provide documentation about how it

calculated the Allowed Amount, subjecting Blue Cross to a daily statutory penalty

as the plan administrator under 29 U.S.C. § 1132(c)(1).

      Upon Blue Cross’s motion, the district court dismissed Fox’s disclosure

claim, finding that Blue Cross was not subject to the penalty because it was not the

plan administrator. Fox’s payment claim proceeded to discovery. Blue Cross

moved for summary judgment on this claim and submitted the affidavit of Dr.

Barry Schwartz, which explained, for the first time, that Blue Cross determined the

Allowed Amount based on Medicare billing rates for the services Fox received.

The district court rendered summary judgment in Blue Cross’s favor, relying on

this explanation to conclude that Blue Cross properly calculated and paid the

Allowed Amount under the Plan. This is Fox’s appeal.




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                                           II.

      We review the dismissal of a claim under Federal Rule of Civil Procedure

12(b)(6) de novo, “accepting the allegations in the complaint as true and construing

them in the light most favorable to the plaintiff.” Lobo v. Celebrity Cruises, Inc.,

704 F.3d 882, 887 (11th Cir. 2013). 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal

quotation marks omitted). “Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.” Id.

      Under ERISA, plan administrators must, “upon written request of any

participant or beneficiary, furnish a copy of the latest updated summary, plan

description, and the latest annual report, any terminal report, the bargaining

agreement, trust agreement, contract, or other instruments under which the plan is

established or operated.” 29 U.S.C. § 1024(b)(4). Failure to comply with this

disclosure requirement within 30 days subjects the plan administrator to a daily

statutory penalty. See id. § 1132(c)(1).

      The district court concluded that Blue Cross was not the plan administrator

and therefore not subject to § 1132(c)(1). Fox argues this conclusion was in error.

Blue Cross responds that, even assuming it was a plan administrator, the

documents Fox requested in his complaint – those that Blue Cross relied on to



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calculate and verify the Allowed Amount – are not subject to disclosure under

§ 1024(b)(4). We agree. Fox argues only that these documents qualify as “other

instruments under which the plan is established or operated” and must therefore be

disclosed. But that provision “encompasses formal or legal documents under

which a plan is set up or managed.” Faircloth v. Lundy Packing Co., 91 F.3d 648,

653 (4th Cir. 1996), quoted with approval in Cotton v. Mass. Mut. Life Ins. Co.,

402 F.3d 1267, 1274 n.8 (11th Cir. 2005). Because the documents Blue Cross used

to calculate and verify the Allowed Amount are not such documents, Blue Cross’s

failure to disclose them did not violate § 1024(b)(4), and the district court correctly

dismissed Fox’s claim. See id.; cf. Brown v. J.B. Hunt Transp. Servs., Inc., 586

F.3d 1079, 1088 (8th Cir. 2009) (“Nothing in [ERISA] requires plan administrators

to disclose claims manuals to plan participants.”).

                                          III.

      “We review a trial court’s grant of a motion for summary judgment de novo,

viewing the record and drawing all reasonable inferences in the light most

favorable to the non-moving party.” Sims v. MVM, Inc., 704 F.3d 1327, 1330 n.2

(11th Cir. 2013). Summary judgment is proper where “there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). “We may affirm the district court’s grant of summary

judgment on any legal ground supported by the record, regardless of whether the



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district court relied on that ground.” Walden v. Ctrs. for Disease Control &

Prevention, 669 F.3d 1277, 1283 (11th Cir. 2012).

      Fox contends that Blue Cross’s decision to pay less than the actual charge

for his surgery was improper. We follow a six-step process to review a benefits

decision. Capone v. Aetna Life Ins. Co., 592 F.3d 1189, 1195 (11th Cir. 2010).

The first step is to “[a]pply the de novo standard to determine whether the claim

administrator’s benefits-denial decision is ‘wrong’ (i.e., the court disagrees with

the administrator’s decision); if it is not, then end the inquiry and affirm the

decision.” Id. (internal quotation marks omitted).

      We need not proceed beyond the first step here. The Plan provides that, for

out-of-network services, Blue Cross will pay 100% of the Allowed Amount, which

is defined as the lesser of the provider’s actual charge or an amount established by

Blue Cross based on factors enumerated in the Plan, including the amount

Medicare pays for certain services. Evidence in the administrative record –

namely, the letter Blue Cross sent to Fox on July 23 and the documentation Blue

Cross sent Fox in response to his request – indicates that Blue Cross paid 100% of

the Allowed Amount. Fox provides no evidence to counter this assertion. He

therefore cannot show, as he must to survive summary judgment, a genuine dispute

that Blue Cross’s benefits-denial decision was wrong under the Plan. See Dietz v.

Smithkline Beecham Corp., 598 F.3d 812, 815 (11th Cir. 2010) (“Once the movant



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adequately supports its motion [for summary judgment], the burden shifts to the

nonmoving party to show that specific facts exist that raise a genuine issue for

trial.”). The district court therefore properly rendered summary judgment in favor

of Blue Cross.2

                                                IV.

       In sum, the district court properly dismissed Fox’s disclosure claim and

correctly concluded that Blue Cross was entitled to summary judgment.

       AFFIRMED.




2
  Fox contends that it was improper for the district court to rely on Dr. Schwartz’s affidavit about
how the Allowed Amount was calculated because it was outside the administrative record. Even
without this affidavit, however, Blue Cross offered other evidence, the validity of which Fox did
not contest in the district court, that it paid 100% of the Allowed Amount. Fox has therefore
forfeited this argument. See Ledford v. Peeples, 657 F.3d 1222, 1258 (11th Cir. 2011)
(explaining that a party who does not raise an argument in the district court forfeits his right to
raise it on appeal except in limited circumstances not present here).


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