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USCA11 Case: 18-10417 Date Filed: 02/24/2021 Page: 1 of 26
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`[PUBLISH]
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`IN THE UNITED STATES COURT OF APPEALS
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`FOR THE ELEVENTH CIRCUIT
`________________________
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`No. 18-10417
`________________________
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`D.C. Docket No. 1:17-cv-04656-AT
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`versus
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`W. A. GRIFFIN, MD,
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`
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`
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`COCA-COLA REFRESHMENTS USA, INC.,
`UNITED HEALTHCARE INSURANCE COMPANY,
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`
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`UNITED HEALTHCARE OF GEORGIA, INC.,
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`
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`Plaintiff - Appellant,
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`Defendants - Appellees,
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`Defendant.
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`
`________________________
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`No. 18-10418
`________________________
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`D.C. Docket No. 1:17-cv-04657-AT
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`
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`W. A. GRIFFIN, MD,
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`USCA11 Case: 18-10417 Date Filed: 02/24/2021 Page: 2 of 26
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`versus
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`
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`DELTA AIR LINES, INC.,
`UNITED HEALTHCARE INSURANCE COMPANY,
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`
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`UNITED HEALTHCARE PLAN OF GEORGIA, INC.,
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`
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`Plaintiff - Appellant,
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`Defendants - Appellees,
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`Defendant.
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`________________________
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`Appeals from the United States District Court
`for the Northern District of Georgia
`________________________
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`(February 24, 2021)
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`Before BRANCH and MARCUS, Circuit Judges, and UNGARO,∗ District Judge.
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`BRANCH, Circuit Judge:
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`Dr. Wakitha Griffin, a dermatologist in Atlanta, Georgia, has filed many
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`appeals in this Court in recent years, all of which have involved her attempts to
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`receive in-network payments despite being an out-of-network provider. Our other
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`opinions have been unpublished; we choose to publish today in hopes of resolving
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`this recurring litigation.
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`∗ The Honorable Ursula Ungaro, United States District Court for the Southern District of
`Florida, sitting by designation.
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`2
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`USCA11 Case: 18-10417 Date Filed: 02/24/2021 Page: 3 of 26
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`These consolidated appeals arise from Griffin’s treatment of two patients
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`who were insured under two separate employee welfare benefit plans which are
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`administered by United Healthcare (“United”). The Employee Retirement Income
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`Security Act of 1974 (“ERISA”) covers both plans. Because Griffin does not have
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`a contract with United whereby she provides services in exchange for
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`reimbursement at a negotiated rate, she is an out-of-network provider under both
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`plans. Generally, patients are reimbursed at lower rates when receiving healthcare
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`services from out-of-network providers rather than in-network providers.
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`Eschewing a contractual relationship with United and payment from her
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`patients, Griffin instead requested that the two patients assign their benefits under
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`their plans to her. They obliged. Griffin then attempted to collect from United the
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`same payment that she would have received had she been an in-network provider.
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`When United only paid her the benefits she was entitled to as an out-of-network
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`provider, Griffin brought two separate lawsuits—one against Coca-Cola
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`Refreshments, Inc. (“Coca-Cola”) and United and the other against Delta Air
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`Lines, Inc. (“Delta”) and United (collectively, “Defendants”)—asserting various
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`ERISA violations. The district court dismissed both cases for failure to state a
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`claim because the plans’ anti-assignment clauses prevented Griffin from obtaining
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`statutory standing under ERISA to sue on behalf of her patients. Griffin appealed
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`both cases to this Court.
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`3
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`USCA11 Case: 18-10417 Date Filed: 02/24/2021 Page: 4 of 26
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`These consolidated appeals raise an unsettled issue about whether an ERISA
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`plan administrator or its claims agent may waive its right to rely on an anti-
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`assignment provision in an ERISA-covered plan. We need not reach that issue,
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`however. Even assuming that waiver is available in the ERISA context,
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`Defendants did not waive their ability to assert the anti-assignment provisions as a
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`defense. And regardless of waiver, Griffin’s lawsuit still fails to state a claim:
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`United paid her in full, both under the terms of the patients’ assignments and the
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`provisions of the healthcare plans. We therefore affirm the district court’s orders.
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`I.
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`Background
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`Although these consolidated appeals implicate two distinct health benefit
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`plans, patients, and assignments, the facts giving rise to Griffin’s claims in each
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`case are largely the same. A few years ago, Griffin provided medical treatment for
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`two patients: Patient J.J., who was insured under the Coca-Cola Plan, and Patient
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`G.A., who was insured under the Delta Plan.1 United is the Coca-Cola Plan’s
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`Claims Fiduciary and the Delta Plan’s Claims Administrator. Under the terms of
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`both plans, Griffin is an “out of network” physician. Generally, the plans
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`reimburse the beneficiary at a higher percentage when he visits an in-network
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`physician rather than an out-of-network physician. For example, the Coca-Cola
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`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
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`USCA11 Case: 18-10417 Date Filed: 02/24/2021 Page: 5 of 26
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`Plan provides that when a beneficiary has an office visit with an out-of-network
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`physician, the plan pays 60 percent of the cost of service and the beneficiary pays
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`40 percent. By contrast, if the beneficiary has an office visit with an in-network
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`physician, the plan pays at least 80 percent.
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`In exchange for medical treatment and in lieu of payment, the two patients
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`executed an assignment of their plan benefits to Griffin. Both assignments are
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`identical. By signing, the patient acknowledges that the document is “a direct legal
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`assignment of my rights and benefits under this policy and designation of
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`authorized representative” and “authorize[s] any plan administrator or fiduciary,
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`insurer, and my attorney to release to such provider(s) any and all plan
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`documents.” The assignment further provides that the patient has assigned “all
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`medical benefits and/or insurance reimbursement, if any, otherwise payable to [the
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`patient] for services rendered from such provider(s), regardless of such provider’s
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`managed care network participation status.”
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`Griffin believed that the assignments entitled her to full payment for her
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`services, as if she were an in-network provider. She submitted claims to United,
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`which she alleges United only partially paid. Griffin appealed United’s payment
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`determinations. In her appeals, Griffin made numerous requests, including: (1)
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`that United disclose the plan’s unambiguous anti-assignment provision, should the
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`5
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`USCA11 Case: 18-10417 Date Filed: 02/24/2021 Page: 6 of 26
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`plan have one; (2) copies of the plan documents; and (3) the identification of the
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`Plan Administrator.
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`United denied each appeal and responded directly to the patients, copying
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`Griffin on the communications. In each appeal denial, United explained that
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`Griffin was not reimbursed the full amount of her charges because of the relevant
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`plan’s provisions regarding out-of-network coverage and deductibles. United
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`therefore upheld the payment determinations and did not address Griffin’s specific
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`requests. Undeterred, Griffin submitted second level appeals for both claims and
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`reiterated her requests. United again denied the appeals without addressing
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`Griffin’s requests.
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`
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`After exhausting her administrative remedies, Griffin, proceeding pro se,
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`filed two complaints in Georgia state court: one against United and Coca-Cola, for
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`her treatment of Patient J.J., and the other against United and Delta, for her
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`treatment of Patient G.A. The operative complaints are nearly identical and bring
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`the same four claims: failure to pay plan benefits under 29 U.S.C. § 1132 (Count
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`1), breach of fiduciary duty under 29 U.S.C. § 1104 (Count 2), failure to provide
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`plan documents under 29 U.S.C. §§ 1024(b), 1104, and 1132(2) (Count 3); and
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`breach of co-fiduciary duties under 29 U.S.C. § 1105(a)(2) (Count 4). Defendants
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`removed both lawsuits to the United States District Court for the Northern District
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`of Georgia and moved to dismiss Griffin’s complaints for failure to state a claim.
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`6
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`USCA11 Case: 18-10417 Date Filed: 02/24/2021 Page: 7 of 26
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`Griffin was in familiar territory in the district court. In the last four years,
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`Griffin has filed more than two dozen cases either directly in the Northern District
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`of Georgia or in state court that were later removed to that district court.2 All
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`involve Griffin seeking reimbursement from health plans through her patients’
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`assignment of benefits.
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`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).
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`7
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`USCA11 Case: 18-10417 Date Filed: 02/24/2021 Page: 8 of 26
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`Similar to her past claims, her allegations here focus on United’s failure to
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`disclose to her whether the plans had anti-assignment provisions, even though she
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`requested them in her claim appeals. And because Defendants did not provide her
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`the plan documents containing those provisions, Griffin’s complaints allege that
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`they cannot rely on them in defense of their lawsuit.
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`In their motions to dismiss Griffin’s complaints, Defendants asserted that the
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`plans’ anti-assignment provisions rendered the assignment of benefits void. The
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`plans each contain anti-assignment provisions. 3 The Coca-Cola Plan provides:
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`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.
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`Another section of the plan states, “While benefits payable at any time may be
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`used to make direct payments to health care providers, no amount payable at any
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`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.”
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`
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`8
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`USCA11 Case: 18-10417 Date Filed: 02/24/2021 Page: 9 of 26
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`time shall be subject in any matter to alienation by assignment of any kind. Any
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`attempt to assign any such amount shall be void.” The Coca-Cola Plan further
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`provides that beneficiaries “may not assign any rights or cause of action that [they]
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`may have against a third-party to recover medical expenses without the express
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`written consent of the Plan Administrator.”
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`
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`Similarly, the Delta Plan provides:
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`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.
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`Another section of the plan states:
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`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.
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`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.
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`The district court dismissed both of Griffin’s complaints for failure to state a
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`
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`claim. Regarding her suit against Delta and United, the district court found the
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`9
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`USCA11 Case: 18-10417 Date Filed: 02/24/2021 Page: 10 of 26
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`Delta Plan’s anti-assignment provisions barred all of Griffin’s claims. In its order
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`dismissing the suit against Coca-Cola and United, the district court similarly found
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`the Coca-Cola Plan’s anti-assignment provisions indisputably barred Griffin’s
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`claim for payment under the plan (Count 1). The court also found that, even if the
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`language of the anti-assignment provisions did not bar the remaining non-payment
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`claims (Counts 2, 3, and 4), the assignment itself did not include the right to bring
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`those non-payment claims. Accordingly, she lacked derivative statutory standing
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`to bring those claims as well. The district court did not address Griffin’s waiver
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`arguments. Griffin appealed the district court’s orders to this Court.
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`
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`Griffin presents three issues on appeal. First, did the patients legally assign
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`Griffin the right to bring the breach of fiduciary duty and statutory penalties claims
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`(the “non-payment-related claims”) as well as benefit claims? Second, do the anti-
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`assignment provisions apply to Griffin’s claims for underpayment of benefits
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`and/or the non-payment claims? Third, if they do apply to some or all of the
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`claims, are Defendants estopped from relying on the anti-assignment provisions or
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`have they otherwise waived the right to assert them?
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`We appointed Griffin counsel sua sponte and set this case for oral argument.
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`After reviewing the record, the parties’ briefs, and oral argument, we affirm the
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`lower court’s decisions.
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`II.
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`Standard of Review and ERISA
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`10
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`USCA11 Case: 18-10417 Date Filed: 02/24/2021 Page: 11 of 26
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`The Court of Appeals reviews “de novo the district court’s grant of a motion
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`to dismiss under [Federal Rule of Civil Procedure] 12(b)(6) for failure to state a
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`claim, accepting the allegations in the complaint as true and construing them in the
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`light most favorable to the plaintiff.” Lanfear v. Home Depot, Inc., 679 F.3d 1267,
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`1275 (11th Cir. 2012) (quoting Ironworkers Local Union 68 v. AstraZeneca
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`Pharm., LP, 634 F.3d 1352, 1359 (11th Cir. 2011)).
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`ERISA, which governs this case, sets the minimum standards for employee
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`benefit plans, such as the healthcare plans at issue here. See 29 U.S.C. §§ 1001,
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`1002. Section 502(a) of ERISA creates federal causes of action for recovery of
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`benefits under such plans. See 29 U.S.C. § 1132(a)(1)(B) (“A civil action may be
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`brought . . . by a participant or beneficiary . . . to recover benefits due to him under
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`the terms of his plan, to enforce his rights under the terms of the plan, or to clarify
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`his rights to future benefits under the terms of the plan[.]”). ERISA also allows
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`participants to bring actions under section 502(a) against plan fiduciaries for
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`breach of fiduciary duty. 29 U.S.C. § 1104. In addition, section 405(a) of ERISA
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`imposes co-fiduciary liability on all plan fiduciaries in certain circumstances. Id..
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`§ 1105. Finally, ERISA requires plan administrators, upon request, to provide plan
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`information to participants and allows for participants to seek statutory penalties
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`for a plan’s failure to do so. Id. § 1132(c)(1). Critically, to maintain an action
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`under ERISA, a plaintiff must have standing to sue under the statute. Physicians
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`11
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`USCA11 Case: 18-10417 Date Filed: 02/24/2021 Page: 12 of 26
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`Multispecialty Grp. v. Health Care Plan of Horton Homes, Inc., 371 F.3d 1291,
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`1293–94 (11th Cir. 2004).4
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`In enacting ERISA, Congress broadly preempted state law relating to
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`employee benefit plans. Mackey v. Lanier Collection Agency & Serv., Inc., 486
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`U.S. 825, 829 (1988); see generally Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41
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`(1987). Where ERISA is silent on an issue, Congress intended for courts to
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`fashion a federal common law governing employee benefit plans. Glass v. United
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`of Omaha Life Ins. Co., 33 F.3d 1341, 1347 (11th Cir. 1994). We have explained
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`the process for determining federal common law under ERISA:
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`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.
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`Horton v. Reliance Standard Life Ins. Co., 141 F.3d 1038, 1041 (11th Cir. 1998).
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`When tasked with shaping federal common law in the ERISA context, this Court
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`has explicitly relied on rules found in the Restatement of Contracts, see, e.g.,
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`Turner v. Am. Fed’n of Teachers Local 1565, 138 F.3d 878, 882 (11th Cir. 1998),
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`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).
`
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`
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`12
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`USCA11 Case: 18-10417 Date Filed: 02/24/2021 Page: 13 of 26
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`and state law, see, e.g., Tippit v. Reliance Standard Life Ins. Co., 457 F.3d 1227,
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`1235 (11th Cir. 2006) (using Georgia law to interpret ambiguous plan).
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`III. Analysis
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`a. The Scope of the Patients’ Assignments
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`We first determine the scope of the patients’ assignments to Griffin—
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`whether they purport to give her the right to bring both payment and non-payment
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`(breach of fiduciary duties and statutory penalties) claims.
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`To maintain an action under ERISA, a plaintiff must have statutory standing.
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`ERISA limits the right to sue for plan participants, plan beneficiaries, plan
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`fiduciaries, and the Secretary of Labor. 29 U.S.C. § 1132(a). “Healthcare
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`providers . . . are generally not ‘participants’ or ‘beneficiaries’ under ERISA.”
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`Physicians Multispecialty Grp., 371 F.3d at 1294. Still, an assignee may obtain
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`derivative standing for payment of medical benefits through a written assignment
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`from a plan participant or beneficiary. See Gables Ins. Recovery, Inc. v. Blue
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`Cross & Blue Shield of Fla., Inc., 813 F.3d 1333, 1339 (11th Cir. 2015).5
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`In this case, no party doubts that the assignments’ language purports to
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`convey to Griffin a right to bring the claim for unpaid benefits. But Griffin argues
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`that the patients assigned all their rights—including the right to bring fiduciary and
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`5 For the reasons discussed herein, we need not decide whether the assignment of nonpayment
`claims provides derivative standing.
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`
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`13
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`USCA11 Case: 18-10417 Date Filed: 02/24/2021 Page: 14 of 26
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`statutory penalty claims—under the plans because the assignments state: “This is a
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`direct legal assignment of my rights and benefits under the policy.” That sentence,
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`Griffin claims, is enough to transfer the participant’s right to bring claims both for
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`unpaid payments and non-payment related claims.
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`In numerous unpublished decisions, we have rejected similar claims (all
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`made by Griffin) regarding the assignment of the right to bring non-payment
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`claims like those in Counts 2, 3, and 4. See, e.g., Griffin v. SunTrust Bank Inc.,
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`648 F. App’x 962, 967 (11th Cir. 2016) (“Nothing in an assignment of benefits
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`transfers the patient’s right to bring a cause of action” for similar non-payment-
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`related claims.); Griffin v. Health Sys. Mgmt. Inc, 635 F. App’x 768, 772 n.4 (11th
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`Cir. 2015). Griffin argues that these prior decisions only examine particular lines
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`in the assignment, and we have not considered the exact language she points to in
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`this appeal. Because the language Griffin relies on in this appeal assigns both
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`“rights and benefits under the policy,” Griffin claims, it expressly assigns the right
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`to bring both payment and non-payment-related claims.
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`Even assuming this “rights and benefits” language evinces the assignment of
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`two distinct rights—the right to bring claims for both payment and non-payment—
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`the assignments themselves contradict Griffin’s argument. The general form
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`assignments on which Griffin relies contain 10 separately listed paragraphs
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`outlining the scope of the assignments. The patients checked the box next to each
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`
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`14
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`USCA11 Case: 18-10417 Date Filed: 02/24/2021 Page: 15 of 26
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`one. None of the paragraphs mention breach of fiduciary duty or statutory penalty
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`claims. Rather, they provide the details of Griffin’s “right” to receive the patients’
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`“medical information” and “payment of benefits” under the Plan. Therefore, the
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`assignments make clear that the patients only assigned their right to bring claims
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`for payment pursuant to 29 U.S.C. § 1132. Accordingly, the district court was
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`correct to dismiss Griffin’s non-payment claims.
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`b. The Plans’ Anti-Assignment Provisions
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`i. Applicability to Griffin’s Payment Claim
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`We next turn to whether Griffin’s payment claim survives the language of
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`the plans’ anti-assignment provisions. We find that her payment claim does not.
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`We have held that “an unambiguous anti-assignment provision in an ERISA-
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`governed welfare benefit plan is valid and enforceable” against healthcare
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`providers. Physicians Multispecialty Grp., 371 F.3d at 1296. The anti-assignment
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`language in the plans at issue is unambiguous and thus enforceable. The Coca-
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`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

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