`
`
`
`[PUBLISH]
`
`IN THE UNITED STATES COURT OF APPEALS
`
`FOR THE ELEVENTH CIRCUIT
`________________________
`
`No. 18-10417
`________________________
`
`D.C. Docket No. 1:17-cv-04656-AT
`
`versus
`
`W. A. GRIFFIN, MD,
`
`
`
`
`
`COCA-COLA REFRESHMENTS USA, INC.,
`UNITED HEALTHCARE INSURANCE COMPANY,
`
`
`
`UNITED HEALTHCARE OF GEORGIA, INC.,
`
`
`
`
`
`Plaintiff - Appellant,
`
`Defendants - Appellees,
`
`Defendant.
`
`
`________________________
`
`No. 18-10418
`________________________
`
`D.C. Docket No. 1:17-cv-04657-AT
`
`
`
`W. A. GRIFFIN, MD,
`
`
`
`
`USCA11 Case: 18-10417 Date Filed: 02/24/2021 Page: 2 of 26
`
`versus
`
`
`
`
`
`DELTA AIR LINES, INC.,
`UNITED HEALTHCARE INSURANCE COMPANY,
`
`
`
`UNITED HEALTHCARE PLAN OF GEORGIA, INC.,
`
`
`
`Plaintiff - Appellant,
`
`Defendants - Appellees,
`
`Defendant.
`
`________________________
`
`Appeals from the United States District Court
`for the Northern District of Georgia
`________________________
`
`(February 24, 2021)
`
`Before BRANCH and MARCUS, Circuit Judges, and UNGARO,∗ District Judge.
`
`BRANCH, Circuit Judge:
`
`Dr. Wakitha Griffin, a dermatologist in Atlanta, Georgia, has filed many
`
`appeals in this Court in recent years, all of which have involved her attempts to
`
`receive in-network payments despite being an out-of-network provider. Our other
`
`opinions have been unpublished; we choose to publish today in hopes of resolving
`
`this recurring litigation.
`
`
`∗ The Honorable Ursula Ungaro, United States District Court for the Southern District of
`Florida, sitting by designation.
`
`
`
`2
`
`
`
`USCA11 Case: 18-10417 Date Filed: 02/24/2021 Page: 3 of 26
`
`These consolidated appeals arise from Griffin’s treatment of two patients
`
`who were insured under two separate employee welfare benefit plans which are
`
`administered by United Healthcare (“United”). The Employee Retirement Income
`
`Security Act of 1974 (“ERISA”) covers both plans. Because Griffin does not have
`
`a contract with United whereby she provides services in exchange for
`
`reimbursement at a negotiated rate, she is an out-of-network provider under both
`
`plans. Generally, patients are reimbursed at lower rates when receiving healthcare
`
`services from out-of-network providers rather than in-network providers.
`
`Eschewing a contractual relationship with United and payment from her
`
`patients, Griffin instead requested that the two patients assign their benefits under
`
`their plans to her. They obliged. Griffin then attempted to collect from United the
`
`same payment that she would have received had she been an in-network provider.
`
`When United only paid her the benefits she was entitled to as an out-of-network
`
`provider, Griffin brought two separate lawsuits—one against Coca-Cola
`
`Refreshments, Inc. (“Coca-Cola”) and United and the other against Delta Air
`
`Lines, Inc. (“Delta”) and United (collectively, “Defendants”)—asserting various
`
`ERISA violations. The district court dismissed both cases for failure to state a
`
`claim because the plans’ anti-assignment clauses prevented Griffin from obtaining
`
`statutory standing under ERISA to sue on behalf of her patients. Griffin appealed
`
`both cases to this Court.
`
`
`
`3
`
`
`
`USCA11 Case: 18-10417 Date Filed: 02/24/2021 Page: 4 of 26
`
`These consolidated appeals raise an unsettled issue about whether an ERISA
`
`plan administrator or its claims agent may waive its right to rely on an anti-
`
`assignment provision in an ERISA-covered plan. We need not reach that issue,
`
`however. Even assuming that waiver is available in the ERISA context,
`
`Defendants did not waive their ability to assert the anti-assignment provisions as a
`
`defense. And regardless of waiver, Griffin’s lawsuit still fails to state a claim:
`
`United paid her in full, both under the terms of the patients’ assignments and the
`
`provisions of the healthcare plans. We therefore affirm the district court’s orders.
`
`I.
`
`Background
`
`Although these consolidated appeals implicate two distinct health benefit
`
`plans, patients, and assignments, the facts giving rise to Griffin’s claims in each
`
`case are largely the same. A few years ago, Griffin provided medical treatment for
`
`two patients: Patient J.J., who was insured under the Coca-Cola Plan, and Patient
`
`G.A., who was insured under the Delta Plan.1 United is the Coca-Cola Plan’s
`
`Claims Fiduciary and the Delta Plan’s Claims Administrator. Under the terms of
`
`both plans, Griffin is an “out of network” physician. Generally, the plans
`
`reimburse the beneficiary at a higher percentage when he visits an in-network
`
`physician rather than an out-of-network physician. For example, the Coca-Cola
`
`
`1 The Coca-Cola Company Benefits Committee is the Coca-Cola Plan Administrator and
`the Administrative Committee of Delta Air Line, Inc. is the Delta Plan Administrator.
`4
`
`
`
`
`
`USCA11 Case: 18-10417 Date Filed: 02/24/2021 Page: 5 of 26
`
`Plan provides that when a beneficiary has an office visit with an out-of-network
`
`physician, the plan pays 60 percent of the cost of service and the beneficiary pays
`
`40 percent. By contrast, if the beneficiary has an office visit with an in-network
`
`physician, the plan pays at least 80 percent.
`
`In exchange for medical treatment and in lieu of payment, the two patients
`
`executed an assignment of their plan benefits to Griffin. Both assignments are
`
`identical. By signing, the patient acknowledges that the document is “a direct legal
`
`assignment of my rights and benefits under this policy and designation of
`
`authorized representative” and “authorize[s] any plan administrator or fiduciary,
`
`insurer, and my attorney to release to such provider(s) any and all plan
`
`documents.” The assignment further provides that the patient has assigned “all
`
`medical benefits and/or insurance reimbursement, if any, otherwise payable to [the
`
`patient] for services rendered from such provider(s), regardless of such provider’s
`
`managed care network participation status.”
`
`Griffin believed that the assignments entitled her to full payment for her
`
`services, as if she were an in-network provider. She submitted claims to United,
`
`which she alleges United only partially paid. Griffin appealed United’s payment
`
`determinations. In her appeals, Griffin made numerous requests, including: (1)
`
`that United disclose the plan’s unambiguous anti-assignment provision, should the
`
`
`
`5
`
`
`
`USCA11 Case: 18-10417 Date Filed: 02/24/2021 Page: 6 of 26
`
`plan have one; (2) copies of the plan documents; and (3) the identification of the
`
`Plan Administrator.
`
`United denied each appeal and responded directly to the patients, copying
`
`Griffin on the communications. In each appeal denial, United explained that
`
`Griffin was not reimbursed the full amount of her charges because of the relevant
`
`plan’s provisions regarding out-of-network coverage and deductibles. United
`
`therefore upheld the payment determinations and did not address Griffin’s specific
`
`requests. Undeterred, Griffin submitted second level appeals for both claims and
`
`reiterated her requests. United again denied the appeals without addressing
`
`Griffin’s requests.
`
`
`
`After exhausting her administrative remedies, Griffin, proceeding pro se,
`
`filed two complaints in Georgia state court: one against United and Coca-Cola, for
`
`her treatment of Patient J.J., and the other against United and Delta, for her
`
`treatment of Patient G.A. The operative complaints are nearly identical and bring
`
`the same four claims: failure to pay plan benefits under 29 U.S.C. § 1132 (Count
`
`1), breach of fiduciary duty under 29 U.S.C. § 1104 (Count 2), failure to provide
`
`plan documents under 29 U.S.C. §§ 1024(b), 1104, and 1132(2) (Count 3); and
`
`breach of co-fiduciary duties under 29 U.S.C. § 1105(a)(2) (Count 4). Defendants
`
`removed both lawsuits to the United States District Court for the Northern District
`
`of Georgia and moved to dismiss Griffin’s complaints for failure to state a claim.
`
`
`
`6
`
`
`
`USCA11 Case: 18-10417 Date Filed: 02/24/2021 Page: 7 of 26
`
`Griffin was in familiar territory in the district court. In the last four years,
`
`Griffin has filed more than two dozen cases either directly in the Northern District
`
`of Georgia or in state court that were later removed to that district court.2 All
`
`involve Griffin seeking reimbursement from health plans through her patients’
`
`assignment of benefits.
`
`
`2 See Griffin v. Blue Cross and Blue Shield Healthcare Plan of Ga., Inc., et al, No. 1:14-
`cv-1610-AT (N.D. Ga. filed May 28, 2014); Griffin v. S. Co. Servs., Inc., No. 1:15-cv-0115-AT
`(N.D. Ga. filed Jan. 14, 2015); Griffin v. SunTrust Bank, Inc., No. 1:15-cv-0147-AT (N.D. Ga.
`filed Jan. 16, 2015); Griffin v. FOCUS Brands Inc., No. 1:15-cv-0170-AT (N.D. Ga. filed Jan.
`20, 2015); Griffin v. Health Sys. Mgmt., Inc., No. 1:15-cv-0171-AT (N.D. Ga. filed Jan. 20,
`2015); Griffin v. Lockheed Martin Corp., No. 1:15-cv-0267-AT (N.D. Ga. filed Jan. 28, 2015);
`Griffin v. Gen. Mills, Inc., No. 1:15-cv-0268-AT (N.D. Ga. filed Jan. 28, 2015); Griffin v.
`Oldcastle, Inc., No. 1:15-cv-0269-AT (N.D. Ga. filed Jan 28, 2015); Griffin v. Habitat for
`Humanity Int’l, Inc., No. 1:15-cv-0369-AT (N.D. Ga. filed Jan 28, 2015); Griffin v. Verizon
`Commc’ns, Inc., No. 1:15-cv-0569-AT (N.D. Ga. filed Feb. 26, 2015); Griffin v. Humana
`Employers Health Plan of Ga., Inc., No. 1:15-cv-3574-AT (N.D. Ga. filed Oct. 8, 2015); Griffin
`v. Aetna Health Inc., et al., No. 1:15-cv-3750-AT (N.D. Ga. filed Oct. 26, 2015); Griffin v. Gen.
`Elec. Co., No. 1:15-cv-4439-AT (N.D. Ga. filed Dec. 22, 2015); Griffin v. Navistar, Inc., No.
`1:16-cv-0190-AT (N.D. Ga. filed Jan. 21, 2016); Griffin v. Humana Employers Health Plan of
`Ga., Inc., No. 1:16-cv-0245-AT (N.D. Ga. filed Jan. 26, 2016); Griffin v. Coca-Cola Enters.,
`Inc., No. 1:16-cv-0389-AT (N.D. Ga. filed Feb. 9, 2016); Griffin v. Sevatec, Inc., No. 1:16-cv-
`0390-AT (N.D. Ga. filed Feb. 9, 2016); Griffin v. Cassidy Turley Com. Real Estate Servs.s, Inc.,
`No. 1:16-cv-0496-AT (N.D. Ga. filed Feb. 17, 2016); Griffin v. Americold Logistics, LLC, No.
`1:16-cv-0497-AT (N.D. Ga. filed Feb. 17, 2016); Griffin v. Applied Indus. Techs., Inc., No. 1:16-
`cv-0552-AT (N.D. Ga. filed Feb. 23, 2016); Griffin v. Areva, Inc., No. 1:16-cv-0553-AT (N.D.
`Ga. filed Feb. 23, 2016); Griffin v. FOCUS Brands, Inc., No. 1:16-cv-0791-AT (N.D. Ga. filed
`Mar. 10, 2016); Griffin v. Northside Hosp., Inc., No. 1:16-cv-1934-AT (N.D. Ga. filed June 10,
`2016); Griffin v. Crestline Hotels & Resorts, LLC, No. 1:16-cv-2022-AT (N.D. Ga. filed June 16,
`2016); Griffin v. Verizon Commc’ns, Inc., No. 1:16-cv-2639 (N.D. Ga. filed July 20, 2016);
`Griffin v. RightChoice Managed Care, Inc., et al, No. 1:16-cv-3102 (N.D. Ga. filed Aug. 23,
`2016); Griffin v. Aetna Health Inc., et al, No. 1:17-cv-00077 (N.D. Ga. filed Jan. 6, 2017);
`Griffin v. United Healthcare of Ga., Inc., et al, No. 1:17-cv-4561-AT (N.D. Ga. filed Nov. 13,
`2017); Griffin v.Coca-Cola Refreshments USA, Inc., et al, No. 1:17-cv-4656-AT (N.D. Ga. filed
`Nov. 20, 2017). Griffin v. Delta Air Lines, Inc., et al, No. 1:17-cv-4657-AT (N.D. Ga. Nov. 20,
`2017).
`
`
`
`7
`
`
`
`USCA11 Case: 18-10417 Date Filed: 02/24/2021 Page: 8 of 26
`
`Similar to her past claims, her allegations here focus on United’s failure to
`
`disclose to her whether the plans had anti-assignment provisions, even though she
`
`requested them in her claim appeals. And because Defendants did not provide her
`
`the plan documents containing those provisions, Griffin’s complaints allege that
`
`they cannot rely on them in defense of their lawsuit.
`
`
`
`In their motions to dismiss Griffin’s complaints, Defendants asserted that the
`
`plans’ anti-assignment provisions rendered the assignment of benefits void. The
`
`plans each contain anti-assignment provisions. 3 The Coca-Cola Plan provides:
`
`9.02 Assignment. If applicable, an Enrolled Person may authorize the
`Plan to directly pay the service provider or hospital that provided the
`Enrolled Person’s covered care and treatment. Except as provided in
`the foregoing sentence, and subject to Section 9.06 of this Plan
`relating to Qualified Medical Child Support Orders, an Enrolled
`Person may not assign or alienate any payment with respect to any
`Benefit which an Enrolled Person is entitled to receive from the Plan,
`and further, except as may be prescribed by law, no Benefits shall be
`subject to attachment or garnishment of or for an Enrolled Person’s
`debts or contracts, except for recovery of overpayments made on an
`Enrolled Person’s behalf by this Plan.
`
`Another section of the plan states, “While benefits payable at any time may be
`
`used to make direct payments to health care providers, no amount payable at any
`
`
`3 The Coca-Cola Plan has two operative plan documents: the Coca-Cola Company Health
`and Welfare Benefits Plan (“Wrap Document”) and the Summary Plan Descriptions and Benefit
`Policies (“SPD”). The SPD is incorporated by reference into the Plan through the Wrap
`Document. We refer to them together as the “Coca-Cola Plan.”
`The Delta Plan also has two operative plan documents: the Account-Based Healthcare
`Plan (“Wrap Document”) and the Summary Plan Descriptions and Benefit Policies (“SPD”).
`The SPD is incorporated by reference into the Plan through the Wrap Document. We refer to
`them together as the “Delta Plan.”
`
`
`
`8
`
`
`
`USCA11 Case: 18-10417 Date Filed: 02/24/2021 Page: 9 of 26
`
`time shall be subject in any matter to alienation by assignment of any kind. Any
`
`attempt to assign any such amount shall be void.” The Coca-Cola Plan further
`
`provides that beneficiaries “may not assign any rights or cause of action that [they]
`
`may have against a third-party to recover medical expenses without the express
`
`written consent of the Plan Administrator.”
`
`
`
`Similarly, the Delta Plan provides:
`
`13.07 Anti-Alienation of Benefits. Except as required by law, no
`benefit, payment or distribution under the Plan shall be subject to the
`claim of any creditor of the Participant, or to any legal process by any
`creditor of the Participant, or to any legal process by any creditor of
`the Participant, and the participant shall not have any right to alienate,
`commute, anticipate or assign (either at law or in equity) all or any
`portion of any benefit, payment or distribution under the Plan except
`to the extent provided herein; provided, however, a Participant may
`make a voluntary and revocable assignment, but only for such
`purposes as the Administrative Committee may from time to time
`specify.
`
`Another section of the plan states:
`
`Except as required by law, no benefit, payment or distribution under
`the plans will be subject to the claim of any creditor of a participant,
`or to any legal process by any creditor of the participant, and the
`participant will not have any right to alienate, commute, anticipate or
`assign all or any portion of any benefit, payment or distribution under
`the plans.
`
`However, a participant may make a voluntary and revocable
`assignment, but only for such purposes as the Plan Administrator may
`specify from time to time.
`
`The district court dismissed both of Griffin’s complaints for failure to state a
`
`
`
`claim. Regarding her suit against Delta and United, the district court found the
`
`
`
`9
`
`
`
`USCA11 Case: 18-10417 Date Filed: 02/24/2021 Page: 10 of 26
`
`Delta Plan’s anti-assignment provisions barred all of Griffin’s claims. In its order
`
`dismissing the suit against Coca-Cola and United, the district court similarly found
`
`the Coca-Cola Plan’s anti-assignment provisions indisputably barred Griffin’s
`
`claim for payment under the plan (Count 1). The court also found that, even if the
`
`language of the anti-assignment provisions did not bar the remaining non-payment
`
`claims (Counts 2, 3, and 4), the assignment itself did not include the right to bring
`
`those non-payment claims. Accordingly, she lacked derivative statutory standing
`
`to bring those claims as well. The district court did not address Griffin’s waiver
`
`arguments. Griffin appealed the district court’s orders to this Court.
`
`
`
`Griffin presents three issues on appeal. First, did the patients legally assign
`
`Griffin the right to bring the breach of fiduciary duty and statutory penalties claims
`
`(the “non-payment-related claims”) as well as benefit claims? Second, do the anti-
`
`assignment provisions apply to Griffin’s claims for underpayment of benefits
`
`and/or the non-payment claims? Third, if they do apply to some or all of the
`
`claims, are Defendants estopped from relying on the anti-assignment provisions or
`
`have they otherwise waived the right to assert them?
`
`We appointed Griffin counsel sua sponte and set this case for oral argument.
`
`After reviewing the record, the parties’ briefs, and oral argument, we affirm the
`
`lower court’s decisions.
`
`II.
`
`Standard of Review and ERISA
`
`
`
`10
`
`
`
`USCA11 Case: 18-10417 Date Filed: 02/24/2021 Page: 11 of 26
`
`The Court of Appeals reviews “de novo the district court’s grant of a motion
`
`to dismiss under [Federal Rule of Civil Procedure] 12(b)(6) for failure to state a
`
`claim, accepting the allegations in the complaint as true and construing them in the
`
`light most favorable to the plaintiff.” Lanfear v. Home Depot, Inc., 679 F.3d 1267,
`
`1275 (11th Cir. 2012) (quoting Ironworkers Local Union 68 v. AstraZeneca
`
`Pharm., LP, 634 F.3d 1352, 1359 (11th Cir. 2011)).
`
`ERISA, which governs this case, sets the minimum standards for employee
`
`benefit plans, such as the healthcare plans at issue here. See 29 U.S.C. §§ 1001,
`
`1002. Section 502(a) of ERISA creates federal causes of action for recovery of
`
`benefits under such plans. See 29 U.S.C. § 1132(a)(1)(B) (“A civil action may be
`
`brought . . . by 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[.]”). ERISA also allows
`
`participants to bring actions under section 502(a) against plan fiduciaries for
`
`breach of fiduciary duty. 29 U.S.C. § 1104. In addition, section 405(a) of ERISA
`
`imposes co-fiduciary liability on all plan fiduciaries in certain circumstances. Id..
`
`§ 1105. Finally, ERISA requires plan administrators, upon request, to provide plan
`
`information to participants and allows for participants to seek statutory penalties
`
`for a plan’s failure to do so. Id. § 1132(c)(1). Critically, to maintain an action
`
`under ERISA, a plaintiff must have standing to sue under the statute. Physicians
`
`
`
`11
`
`
`
`USCA11 Case: 18-10417 Date Filed: 02/24/2021 Page: 12 of 26
`
`Multispecialty Grp. v. Health Care Plan of Horton Homes, Inc., 371 F.3d 1291,
`
`1293–94 (11th Cir. 2004).4
`
`In enacting ERISA, Congress broadly preempted state law relating to
`
`employee benefit plans. Mackey v. Lanier Collection Agency & Serv., Inc., 486
`
`U.S. 825, 829 (1988); see generally Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41
`
`(1987). Where ERISA is silent on an issue, Congress intended for courts to
`
`fashion a federal common law governing employee benefit plans. Glass v. United
`
`of Omaha Life Ins. Co., 33 F.3d 1341, 1347 (11th Cir. 1994). We have explained
`
`the process for determining federal common law under ERISA:
`
`To decide whether a particular rule should become part of ERISA’s
`common law, courts must examine whether the rule, if adopted, would
`further ERISA’s scheme and goals . . . ERISA has two central goals:
`(1) protection of the interests of employees and their beneficiaries in
`employee benefit plans; and (2) uniformity in the administration of
`employee benefit plans.
`
`Horton v. Reliance Standard Life Ins. Co., 141 F.3d 1038, 1041 (11th Cir. 1998).
`
`When tasked with shaping federal common law in the ERISA context, this Court
`
`has explicitly relied on rules found in the Restatement of Contracts, see, e.g.,
`
`Turner v. Am. Fed’n of Teachers Local 1565, 138 F.3d 878, 882 (11th Cir. 1998),
`
`
`4 As used in this context, standing is not jurisdictional, Article III standing, but rather the
`right to make a claim under the statute. Physicians Multispecialty Grp. v. Health Care Plan of
`Horton Homes, Inc., 371 F.3d 1291, 1293–94 (11th Cir. 2004).
`
`
`
`
`12
`
`
`
`USCA11 Case: 18-10417 Date Filed: 02/24/2021 Page: 13 of 26
`
`and state law, see, e.g., Tippit v. Reliance Standard Life Ins. Co., 457 F.3d 1227,
`
`1235 (11th Cir. 2006) (using Georgia law to interpret ambiguous plan).
`
`III. Analysis
`
`a. The Scope of the Patients’ Assignments
`
`
`We first determine the scope of the patients’ assignments to Griffin—
`
`whether they purport to give her the right to bring both payment and non-payment
`
`(breach of fiduciary duties and statutory penalties) claims.
`
`To maintain an action under ERISA, a plaintiff must have statutory standing.
`
`ERISA limits the right to sue for plan participants, plan beneficiaries, plan
`
`fiduciaries, and the Secretary of Labor. 29 U.S.C. § 1132(a). “Healthcare
`
`providers . . . are generally not ‘participants’ or ‘beneficiaries’ under ERISA.”
`
`Physicians Multispecialty Grp., 371 F.3d at 1294. Still, an assignee may obtain
`
`derivative standing for payment of medical benefits through a written assignment
`
`from a plan participant or beneficiary. See Gables Ins. Recovery, Inc. v. Blue
`
`Cross & Blue Shield of Fla., Inc., 813 F.3d 1333, 1339 (11th Cir. 2015).5
`
`In this case, no party doubts that the assignments’ language purports to
`
`convey to Griffin a right to bring the claim for unpaid benefits. But Griffin argues
`
`that the patients assigned all their rights—including the right to bring fiduciary and
`
`
`5 For the reasons discussed herein, we need not decide whether the assignment of nonpayment
`claims provides derivative standing.
`
`
`
`13
`
`
`
`USCA11 Case: 18-10417 Date Filed: 02/24/2021 Page: 14 of 26
`
`statutory penalty claims—under the plans because the assignments state: “This is a
`
`direct legal assignment of my rights and benefits under the policy.” That sentence,
`
`Griffin claims, is enough to transfer the participant’s right to bring claims both for
`
`unpaid payments and non-payment related claims.
`
`In numerous unpublished decisions, we have rejected similar claims (all
`
`made by Griffin) regarding the assignment of the right to bring non-payment
`
`claims like those in Counts 2, 3, and 4. See, e.g., Griffin v. SunTrust Bank Inc.,
`
`648 F. App’x 962, 967 (11th Cir. 2016) (“Nothing in an assignment of benefits
`
`transfers the patient’s right to bring a cause of action” for similar non-payment-
`
`related claims.); Griffin v. Health Sys. Mgmt. Inc, 635 F. App’x 768, 772 n.4 (11th
`
`Cir. 2015). Griffin argues that these prior decisions only examine particular lines
`
`in the assignment, and we have not considered the exact language she points to in
`
`this appeal. Because the language Griffin relies on in this appeal assigns both
`
`“rights and benefits under the policy,” Griffin claims, it expressly assigns the right
`
`to bring both payment and non-payment-related claims.
`
`Even assuming this “rights and benefits” language evinces the assignment of
`
`two distinct rights—the right to bring claims for both payment and non-payment—
`
`the assignments themselves contradict Griffin’s argument. The general form
`
`assignments on which Griffin relies contain 10 separately listed paragraphs
`
`outlining the scope of the assignments. The patients checked the box next to each
`
`
`
`14
`
`
`
`USCA11 Case: 18-10417 Date Filed: 02/24/2021 Page: 15 of 26
`
`one. None of the paragraphs mention breach of fiduciary duty or statutory penalty
`
`claims. Rather, they provide the details of Griffin’s “right” to receive the patients’
`
`“medical information” and “payment of benefits” under the Plan. Therefore, the
`
`assignments make clear that the patients only assigned their right to bring claims
`
`for payment pursuant to 29 U.S.C. § 1132. Accordingly, the district court was
`
`correct to dismiss Griffin’s non-payment claims.
`
`b. The Plans’ Anti-Assignment Provisions
`
`i. Applicability to Griffin’s Payment Claim
`
`We next turn to whether Griffin’s payment claim survives the language of
`
`the plans’ anti-assignment provisions. We find that her payment claim does not.
`
`We have held that “an unambiguous anti-assignment provision in an ERISA-
`
`governed welfare benefit plan is valid and enforceable” against healthcare
`
`providers. Physicians Multispecialty Grp., 371 F.3d at 1296. The anti-assignment
`
`language in the plans at issue is unambiguous and thus enforceable. The Coca-
`
`Cola Plan says a participant “may not assign or alienate any payment with respect
`
`to any Benefit,” and “no amount payable at any time shall be subject in any matter
`
`to alienation by assignment of any kind. Any attempt to assign any such amount
`
`shall be void.” Similarly, the Delta Plan provides that “the participant shall not
`
`have any right to alienate, commute, anticipate or assign (either at law or in equity)
`
`all or any portion of any benefit, payment or distribution under the Plan.” And
`
`
`
`15
`
`
`
`USCA11 Case: 18-10417 Date Filed: 02/24/2021 Page: 16 of 26
`
`another provision similarly states: “the participant will not have any right to
`
`alienate, commute, anticipate or assign all or any portion of any benefit, payment
`
`or distribution under the plans.” On their face, these provisions restrict a patient’s
`
`ability to assign his rights and therefore bar Griffin’s claims.
`
`In fact, Griffin “recognizes the weight of authority from this Court affirming
`
`the dismissals of several cases filed by Dr. Griffin based on the application of anti-
`
`assignment provisions to similar claims brought by Dr. Griffin under ERISA for
`
`unpaid benefits.” But she urges this Court to reverse course and follow the Fifth
`
`Circuit’s lead in its 1992 opinion in Hermann Hospital v. MEBA Medical and
`
`Benefits Plan, 959 F.2d 569 (5th Cir. 1992), overruled in part on other grounds by
`
`Access Mediquip, L.L.C. v. United Healthcare Insurance Co., 698 F.3d 229, 230
`
`(5th Cir. 2012) (en banc).
`
`In Hermann, the Fifth Circuit held that the defendant plan’s anti-assignment
`
`provisions were unenforceable against a healthcare provider. The patient in that
`
`case assigned “all rights, title and interest in the benefits payable for services
`
`rendered by the [healthcare provider]” to the provider-plaintiff. Id. at 571. The
`
`anti-assignment provision at issue stated:
`
`No employee, dependent or beneficiary shall have the right to assign,
`alienate, transfer, sell, hypothecate, mortgage, encumber, pledge,
`commute, or anticipate any benefit payment hereunder, and any such
`payment shall not be subject to any legal process to levy execution
`upon or attachment or garnishment proceedings against for the
`payment of any claims.
`
`
`
`16
`
`
`
`USCA11 Case: 18-10417 Date Filed: 02/24/2021 Page: 17 of 26
`
`
`Id. at 574. The Fifth Circuit held that the anti-assignment clause did not, by its
`
`terms, void the assignment to the provider because it did not explicitly cover
`
`healthcare providers. Id. at 575. The court found it would be inequitable to
`
`prevent providers from recovering for the services they rendered unless the
`
`participants first sued the plan and the provider then sued the participants. Id.
`
`Thus, Griffin claims that this Court should find the Coca-Cola Plan’s and Delta
`
`Plan’s anti-assignment provisions do not bar the assignments because she received
`
`the assignment in her capacity as a healthcare provider.
`
`But Griffin effectively asks this Court to invalidate an unambiguous contract
`
`provision which is valid and enforceable under our precedent based on the policy
`
`preferences of another circuit. We cannot depart from our precedent. See Wilson
`
`v. Taylor, 658 F.2d 1021, 1034 (5th Cir. May 1, 1981) (“It is the firm rule of this
`
`circuit that we cannot disregard the precedent set by a prior panel, even though we
`
`perceive error in the precedent. Absent an intervening Supreme Court decision
`
`which changes the law, only the en banc court can make the change.”). Thus, if
`
`nothing else prevents Defendants from relying on the anti-assignment provisions in
`
`this litigation, the provisions bar Griffin’s claims for unpaid benefits.
`
`ii. Void v. Voidable
`
`Before we turn to Griffin’s remaining arguments as to why Defendants
`
`either waived or are estopped from relying on these anti-assignment provisions, we
`
`
`
`17
`
`
`
`USCA11 Case: 18-10417 Date Filed: 02/24/2021 Page: 18 of 26
`
`must address an often-overlooked threshold issue: whether the anti-assignment
`
`provisions make the assignments void or voidable.6 If the assignments are void ab
`
`initio then there is no need to proceed to the equitable claims because each
`
`assignment is inherently null. On the other hand, if the assignments are merely
`
`voidable, then they are effective unless and until they are challenged. See, e.g.,
`
`Pitts ex rel. Pitts v. Am. Sec. Life Ins. Co., 931 F.2d 351, 356 (5th Cir. 1991)
`
`(discussing consequences of determining whether insurance policy was void rather
`
`than voidable). Estoppel and waiver would only be available defenses to a
`
`voidable anti-assignment clause.
`
`As discussed above, federal courts fill in the gaps Congress left in ERISA
`
`with federal common law. Glass, 33 F.3d at 1347. ERISA itself does not give an
`
`answer to the issue of void versus voidable. Nor have the parties addressed it.
`
`And federal courts have not discussed the distinction between void and voidable in
`
`the ERISA context. Courts sometimes even use these concepts interchangeably.7
`
`
`6 Black’s Law Dictionary defines “void” as “[o]f no legal effect; to null.” Void, Black’s
`Law Dictionary (11th ed. 2019). Something that is “void ab initio” is “[n]ull from the beginning,
`as from the first moment when a contract is entered into. A contract is void ab initio if it
`seriously offends law or public policy, in contrast to a contract that is merely voidable at the
`election of one party to the contract.” Id. The term “voidable” is defined as “[v]alid until
`annulled,” that is, “capable of being affirmed or rejected at the option of one of the parties.”
`Voidable, Black’s Law Dictionary (11th ed. 2019).
`
` 7
`
` “[C]ourts have lamented that ‘[t]he distinction between void and voidable is not as
`distinctly defined as could be wished.’ As a result, ‘[c]ourts have used the words “void,”
`“voidable,” “invalid,” and “unenforceable” imprecisely’ or even interchangeably.” Jesse A.
`Schaefer, Beyond a Definition: Understanding the Nature of Void and Voidable Contracts, 33
`CAMPBELL L. REV. 193, 194 (2010) (quoting Arnold v. Fuller’s Heirs, 1 Ohio 458, 467 (Ohio
`18
`
`
`
`
`
`USCA11 Case: 18-10417 Date Filed: 02/24/2021 Page: 19 of 26
`
`Absent other guidance, we may look to the applicable state law to fill in
`
`ERISA’s gaps. Glass, 33 F.3d at 1347. The Georgia Code renders as void: (1)
`
`contracts to do immoral or illegal things, (2) contracts against public policy, and
`
`(3) gambling contracts. O.C.G.A. §§ 13-8-1, 13-8-2, 13-8-3. This definition
`
`comports with our century-old precedent: in 1906, the former Fifth Circuit
`
`explained:
`
`The distinction between ‘void’ and ‘voidable’ in their application to
`contracts is sometimes one of practical importance. A transaction
`may be void as to one party, and not as to another. When entire
`technical accuracy is desired, the term ‘void’ can only be properly
`applied to those contracts that are of no effect whatsoever, . . . or in
`contravention of that which the law requires, and therefore incapable
`of confirmation or ratification.
`
`Haggart v. Wilczinski, 143 F. 22, 27 (5th Cir. 1906). The assignments here are not
`
`illegal. Nor do they contravene public policy. See Cagle v. Bruner, 112 F.3d
`
`1510, 1515 (11th Cir. 1997) (“[N]either § 1132