*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this opinion should not be published and is not precedent except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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-30452

Summary Calendar

_____________________

ANNIE DOWDEN, also known as

Annie J. Dowden,

Plaintiff-Appellant,

versus

BLUE CROSS & BLUE SHIELD OF

TEXAS, INC.,

Defendant-Appellee.

_______________________________________________________

Appeal from the United States District Court for

the Western District of Texas

(95-CV-1570)

_______________________________________________________

September 19, 1997

Before REAVLEY, JOLLY and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:*

Appellant Annie Dowden (Dowden) brought suit against Appellee

Blue Cross & Blue Shield of Texas, Inc. (Blue Cross) for an alleged

breach of a policy obligation to pay benefits for expenses incurred

in treatment for silicone breast implant complications. Dowden

complains on appeal that the district court erred in granting
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summary judgment against her, holding that the Employment

Retirement Income Security Act (ERISA), § 29 U.S.C. 1132 (a)(1)(B)

governs the facts in this case, and that Blue Cross rationally

determined that the medical expenses which Dowden incurred were not

medically necessary, and therefore, not covered under the insurance

policy. We affirm.

I. JURISDICTION

The district court properly exercised subject matter

jurisdiction pursuant to 28 U.S.C. § 1441(b). A defendant may

remove a case on grounds that the plaintiff has asserted a claim

preempted by § 514(a) of ERISA. Metropolitan Life Ins. Co. v.

Taylor, 481 U.S. 58, 66 (1987). ERISA comprehensively regulates,

inter alia, employee benefit welfare plans that provide medical

care or benefits in the event of sickness through the purchase of

insurance. 29 U.S.C. § 1002(1); Pilot Life Ins. Co. v. Dedeaux,

481 U.S. 41, 45 (1987); Memorial Hosp. Sys. v. Northbrook Life

Ins. Co., 904 F.2d 236 (5th Cir. 1990).

ERISA’s preemption clause dictates that ERISA “shall

supersede any state causes of action insofar as they may now or

hereafter relate to any employee benefit plan.” 29 U.S.C. §

1144(a). The federal courts have broadly construed the

“deliberately expansive” language of the ERISA preemption clause. 

Corcoran v. United Healthcare, Inc., 965 F.2d 1321, 1328-29 (5th
3

Cir. 1992). A state cause of action relates to an employee

benefit plan whenever it has “a connection with or reference to

such a plan.” Hubbard v. Blue Cross & Blue Shield Ass’n, 42 F.3d

942, 945 (5th Cir. 1995)(quoting Corcoran, 965 F.2d at 1329). If

a state law claim addresses an area of exclusive federal concern,

such as the right to receive benefits under the terms of an ERISA

plan, then the claim falls in the province of the federal courts. 

Hubbard, 42 F.3d at 945.

Dowden’s claim to recover medical expenses from Blue Cross

“relates to an employee benefit plan” thus falling within the

scope of ERISA’s preemption provision. “It is clear that ERISA

preempts a state law cause of action brought by an ERISA plan

participant or beneficiary alleging improper processing of a

claim for plan benefits.” Memorial Hosp., 904 F.2d at 245

(citing Pilot Life Ins. Co., 481 U.S. at 1553). Dowden was

insured under the group health insurance policy issued by her

former employer. She continued to participate in the Blue Cross

group policy even after she left her employment through the

provisions of the Consolidated Omnibus Budget Reconciliation Act

of 1985. 

Dowden, as a former employee, comes under the rubric of

ERISA as a participant, 29 U.S.C. §1002 (7). She is able to

assert her claim pursuant to ERISA's civil enforcement provision,

29 U.S.C. § 1132(a)(1)(B). The Supreme Court has held that any
4

suit falling within this provision, even if it purports to raise

only state law claims, is necessarily federal in character by

virtue of the clearly manifested intent of Congress. 

Metropolitan Life, 481 U.S. at 62. 

We agree with the district court that Dowden claims a

violation of ERISA when she alleges a denial of benefits due

under the Blue Cross policy. A federal question exists on her

claim and the district court’s exercise of jurisdiction was

proper. Hubbard, 42 F.3d at 945. 

II. MEDICAL NECESSITY

Dowden’s theory of recovery and the summary judgment entered

against her rest upon whether Blue Cross as the plan

administrator abused its discretion in interpreting the term

“medically necessary” as expressly defined in the insurance

contract. 

A denial of ERISA benefits by a plan administrator is

reviewed by the courts under a de novo standard unless the plan

gives the plan administrator “discretionary authority to

determine the eligibility for benefits or to construe the terms

of the plan.” Duhon v. Texaco, Inc., 15 F.3d 1302, 1305 (5th

Cir. 1994)(quoting Firestone Tire & Rubber Co. v. Bruch, 489 U.S.

101, 115 (1989)). Contrary to Dowden’s assertion, Southern Farm

Bureau Insurance Co. v. Moore, 993 F.2d 98 (1993), does not stand
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for the proposition that the court may look to general principles

of common law or state law absent ERISA guidance on the

interpretation of the plan. Moore states that because ERISA does

not dictate the appropriate standard of review for evaluating

benefit determinations of plan administrators, courts must first

look to the plan terms to determine if the plan administrator has

the discretionary authority to interpret the plan terms. 993

F.2d at 100. 

The abuse of discretion standard is the appropriate standard

of review to challenges to a plan administrator’s interpretation

of the plan terms when that plan grants the administrator the

authority to make a final and conclusive determination of the

claim. Duhon, 15 F.3d at 1305 (citing Bruch, 489 U.S. at 115). 

In applying the abuse of discretion standard, we analyze whether

the plan administrator acted arbitrarily or capriciously. 

Bellaire Gen. Hosp. v. Blue Cross Blue Shield, 97 F.3d 822, 829

(5th Cir. 1996). 

The district court correctly concluded that the contested

plan grants Blue Cross “the exclusive and conclusive authority to

determine coverage and benefits, and to interpret provisions of

the plan, including whether treatment is medically necessary.” 

In pertinent part, the contract provides that “[t]he operation of

the plan requires decisions regarding eligibility and the

construction of terms. In executing this Contract, the Employer
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gives full and complete authority and discretion to the Carrier

to make decisions regarding eligibility and benefits under this

Contract. Such authority and discretion includes, but is not

limited to, determination whether services, care, treatment or

supplies are Medically Necessary . . . .” The contract also

delineates which services are medically necessary such as those

“essential to, consistent with and provided for the diagnosis or

the direct care and treatment of the condition, sickness,

disease, injury, or bodily malfunction,” as well as those

treatments “consistent with accepted standards of medical

practice.” Because the plan vests Blue Cross with such 

authority, judicial review is limited to determining whether

substantial evidence exists in the record to support Blue Cross’s

decision that Dowden’s treatment was medically unnecessary or

whether its refusal to pay the submitted claim was arbitrary and

capricious. Bellaire Gen. Hospital, 97 F.3d at 828 (5th Cir.

1996). “An arbitrary decision is one made without a rational 

connection between the known facts and the decision or between

the found facts and the evidence. Id., 97 F.3d at 828. 

Dowden carries the burden of proving that Blue Cross

arbitrarily and capriciously concluded that the medical test and

treatments were medically unnecessary and therefore not covered

under the policy. Bayles v. Central States, Southeast, &

Southwest Areas Pension Fund, 602 F.2d 97, 99 (5th Cir. 1979). 
7

We agree with the district court’s finding that Dowden has not

satisfied her burden. Blue Cross evidences an established

procedure and policy for processing claims involving silicone

breast implant patients. Relying upon learned publications, Dr.

Benjamin V. Carnovale, along with other medical and legal staff

developed a written policy for the uniform processing of the

claims of silicone breast implant patients. Consistent with the

insurance contract, the policy also enumerates which procedures

are medically necessary. We agree with the district court’s

finding that Blue Cross demonstrated a reasonable basis in the

record in making its determination of non-coverage. Dr

Carnovale’s application of Blue Cross’s established policy and

his ensuing interpretation of medical necessity does not appear

to be arbitrary and capricious, inconsistent or evidence of a

lack of good faith. 

Dowden contends that in lieu of the definition expressly

provided in the contract, medically necessary treatment should be

defined by “medical experts” with great weight given to the

opinion of the attending physician. No evidence in the record

exists nor does any legal authority stipulate that an attending

physician’s opinion should be granted more weight than the

established policies and procedures of the plan administrator. 

To grant conclusive weight to the opinion of the attending

physician would vitiate the discretionary authority expressly

granted to Blue Cross in the contract.
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Dowden further argues that the trial judge was “absolutely

wrong and unjust” to defer to Dr. Carnovale’s determination that

the disputed claim was not medically necessary. Despite Dowden’s

contention, it is indeed proper for the district court to

exercise deference to the plan administrator’s interpretation

when the plan grants the plan administrator discretionary

authority to interpret the plan. Sunbeam-Oster Co. Group Ben.

Plan v. Whitehurst, 102 F.3d 1368, 1373 (5th Cir. 1997); Pierre

v. Connecticut Gen. Life Ins. co., 932 F.2d 1552, 1562 (5th

Cir.), cert. denied, 502 U.S. 973 (1991)(“Federal courts owe due

deference to an administrator’s factual conclusions that reflect

a reasonable and impartial judgment.”).

Finally, Dowden’s allegation, that Blue Cross did not

assert, in its answer, an affirmative defense that applies to the

district court’s decision, is without merit. Blue Cross

affirmatively asserted its defense that Dowden’s claims were not

covered by the ERISA plan and were not medically necessary within

the terms, condition and exclusions of the policy as legally

construed by the plan administrator. Further, there is no

requirement that Blue Cross rely on a fiduciary in order to fall

within the abuse of discretion standard governing the

interpretation the contract. Blue Cross may rely on its own plan

administrator to interpret the contract of insurance. Bruch, 489

U.S. at 115.
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We find no error in the district court’s holding that the

ERISA plan vests discretionary authority in Blue Cross to make

determinations as to the medical necessity of treatments, and

that Blue Cross did not abuse its discretion in refusing to pay

Dowden’s claims under Blue Cross’s interpretation of the plan

terms.

AFFIRMED.