15-2144 _________________________________________________________________________________________________ 

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT _________________________________________________________________________________________________ 

MCCULLOCH ORTHOPAEDIC SURGICAL SERVICES, PLLC, 

 AKA DR. KENNETH E. MCCULLOCH, 

 Plaintiff-Appellant,

v. 

UNITED HEALTHCARE INSURANCE COMPANY, OF NEW YORK, 

 AKA OXFORD (PATIENT MARY BETH YARROW), 

 Defendant-Appellee.

_______________________________ 

On Appeal from the United States District Court 

for the Southern District of New York 

___________________

BRIEF FOR THE SECRETARY OF LABOR AS AMICUS CURIAE IN 

SUPPORT OF PLAINTIFF-APPELLANT, ________________________________ 

M. PATRICIA SMITH THOMAS TSO 

Solicitor of Labor Counsel for Appellate and Special Litigation 

G. WILLIAM SCOTT SUSANNA BENSON 

Associate Solicitor for Plan Attorney, U.S. Dep't of Labor 

Benefits Security Washington, D.C. 20210 

200 Constitution Ave., N.W., N-4611 

(202) 693-5682
TABLE OF CONTENTS 

TABLE OF AUTHORITIES ................................................................................... iii 

QUESTION PRESENTED ........................................................................................ 1 

THE SECRETARY'S INTEREST ............................................................................. 1 

STATEMENT OF THE CASE .................................................................................. 1 

SUMMARY OF THE ARGUMENT ........................................................................ 5 

ARGUMENT ............................................................................................................. 8 

ERISA DOES NOT COMPLETELY PREEMPT MCCULLOCH'S STATE 

LAW PROMISSORY ESTOPPEL CLAIM BECAUSE IT COULD NOT 

HAVE BEEN BROUGHT AS AN ERISA CLAIM FOR BENEFITS AND 

IT IS BASED ON THE INSURER'S INDEPENDENT DUTY UNDER 

STATE LAW TO COMPLY WITH ITS PROMISE TO PAY 

FOR SERVICES ........................................................................................................ 8

A. BACKGROUND LEGAL PRINCIPLES ............................................. 8 

1. ERISA's Complete Preemption Framework under Davila ......... 8

 2. This Court's Application of the Davila Test in Montefiore ......... 9 

B. MCCULLOCH'S CLAIM FAILS TO SATISFY EITHER PRONG 

OF THE COMPLETE PREEMPTION TEST .................................... 12 

1. Prong One, Step One: McCulloch Is Not a "Type of Party" 

 That Can Bring a Claim Under ERISA Section 502 ................. 12 

2. Prong One, Step Two: McCulloch's Promissory Estoppel 

 Claim Cannot be Bought as a Benefits Claim Under ERISA 

Section 502 ................................................................................. 13
ii

TABLE OF CONTENTS-(continued): 

 3. Prong Two: McCulloch's Promissory Estoppel Arises from 

 Independent Legal Duty Implicated by UHC's Actions ........... 19 

 4. The District Court's Conclusion that ERISA Preempts 

 McCulloch's Promissory Estoppel Claim is Contrary to Other 

Circuit Court Decision .............................................................. 23 

 5. Completely Preempting McCulloch's Promissory Estoppel 

 Claim Would Unfairly Leave An Independent Medical 

 Provider Without any Remedy to Enforce an Insurer's 

 Promises, Thereby Indirectly Harming Plan Participants 

 Without Serving to Promote Uniformity in the Administration 

 of the Patient's Medical Benefits Plan ....................................... 26 

CONCLUSION ....................................................................................................... 30 

CERTIFICATE OF COMPLIANCE 

CERTIFICATE OF SERVICE
iii

TABLE OF AUTHORITIES 

Federal Cases: 

Access Mediquip L.L.C. v. UnitedHealthcare Ins. Co., 

662 F.3d 376(5th Cir. 2011), opinion restated, 

698 F.3d 229(5th Cir. 2012) (en banc) ................................................................. 24 

Aetna Health Inc. v. Davila, 

542 U.S. 200 (2004) ............................................................................... 3 & passim 

Blue Cross of Cal. v. Anesthesia Care Assocs. Med. Grp., 

187 F.3d 1045 (9th Cir. 1999) ..............................................................................15 

Cromwell v.Equicor-Equitable HCA Corp., 

944 F.2d 1045 (6th Cir.1991) (Jones J. dissenting) ....................................... 24 n.5 

Franciscan Skemp Healthcare, Inc. v. Cent. States Bd. Health & Welfare Tr. Fund, 

538 F.3d 594 (7th Cir. 2008) ................................................................. 9 & passim 

Gerosa v. Savasta & Co. Inc., 

329 F.3d 317 (2d Cir. 2003) ...................................................................... 1, 27, 28 

Hospice of Metro Denver, Inc. v. Grp. Health Ins. of Okla., Inc., 

944 F.2d 752 (10th Cir. 1991) ................................................................. 24, 25, 27 

In Home Health, Inc. v. Prudential Ins. Co., 

101 F.3d 600 (8th Cir. 1996) ................................................................... 23, 25, 28 

Lone Star OB/GYN Assocs. v. Aetna Health Inc., 

579 F.3d 525 (5th Cir. 2009) ................................................................................ 15 

Lordmann Enters., Inc. v. Equicor, Inc., 

32 F.3d 1529(11th Cir.1994),cert. denied, 

516 U.S. 930 (1995) ................................................................................. 23, 25, 28 
iv

Federal Cases-(continued): 

Marin Gen. Hosp. v. Modesto & Empire Traction Co., 

581 F.3d 941 (9th Cir. 2009) ............................................................... 17 & passim 

Montefiore Med. Ctr. v. Teamsters Local 272, 

642 F.3d 321 (2d Cir. 2011) ........................................................ 2 n.1, 3 & passim 

New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. 

Co., 

514 U.S. 645 (1995) .............................................................................................. 26 

Sec'y of Labor v. Fitzsimmons, 

805 F.2d 682 (7th Cir. 1986) (en banc) .................................................................. 1 

Stevenson v. Bank of New York Co., 

609 F.3d 56 (2d Cir. 2010) .................................................................. 20 & passim 

The Meadows v. Emp'rs Health Ins., 

47 F.3d 1006 (9th Cir. 1995) ......................................................................... 23, 28 

Wurtz v. Rawlings Co., LLC, 

761 F.3d 232(2d Cir. 2014), cert. denied, 

135 S.Ct. 1400 (2015) .................................................................................... 8, 9, 5

State Cases: 

Alliance Health of Santa Teresa Inc. v. Nat'l Presto Ind., Inc., 

113 P.3d 360 (N.M. App. Ct. 2005) .............................................................. 25 n.6 

Brookwood Med. Ctr. v. Celtic Life Ins., 

637 So.2d 1385 (Ala. Civ. App. Ct. 1994) ................................................... 25 n.6 

State Cases- (continued): 
v

St. Joseph's Hosp. & Med. Ctr v. Reserve Life Ins. Co., 

742 P.2d 808 (Ariz. 1987) ............................................................................. 25 n.6 

Weiser v. United Food and Commercial Workers Unions and Emp'rs 

Midwest Health Benefits Fund, 

653 N.E.2d 51 (Ill. App. Ct. 1995) ................................................................ 25 n.6 

Federal Statutes: 

Employee Retirement Income Security Act of 1974, (Title I), 

 as amended, 29 U.S.C. 1001 et seq.: 

Section 2, 29 U.S.C. § 1001 . ....................................................................... 1, 27 

Section 502, 29 U.S.C. § 1132 ........................................................... 8, 9, 17, 23 

Section 502(a), 29 U.S.C. § 1132(a) ................................................................... 8 

Section 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B) .............................. 3 & passim 

Section 514, 29 U.S.C. § 1144 ................................................... 9, 23, 24, 25 n.7 
QUESTION PRESENTED 

Whether ERISA completely preempts the state-law promissory estoppel 

claim of a healthcare provider, which had no contractual relationship with an 

ERISA plan or its insurer, based on the insurer's promise of a specified rate of 

payment. 

THE SECRETARY'S INTEREST 

The Secretary of Labor bears primary responsibility for interpreting and 

enforcing Title I of the Employee Retirement Income Security Act of 1974 

("ERISA"), 29 U.S.C. § 1001 et seq. Sec'y of Labor v. Fitzsimmons, 805 F.2d 

682, 698 (7th Cir. 1986) (en banc). In this capacity, he has a strong interest in 

ensuring that courts correctly apply ERISA's preemption provisions. In prior 

ERISA preemption decisions, this Court has considered the Secretary's views as 

expressed in amicus briefs. E.g., Gerosa v. Savasta & Co. Inc., 329 F.3d 317, 320 

(2d Cir. 2003). 

STATEMENT OF THE CASE 

Plaintiff-appellant McCulloch Orthopedic Surgical Services ("McCulloch") 

is a surgical center and a healthcare provider that has no contract with defendantappellee United Healthcare, a/k/a Oxford ("UHC") to provide medical services. 
2

McCulloch is thus considered an "out-of-network"1 provider for patients insured by 

UHC. Summons and Verified Complaint, dated July 3, 2014 ("Compl."), at A16. 

Patient Mary Beth Yarrow was a participant in an ERISA plan insured and 

administered by UHC. Compl., at A17. As the plan administrator, UHC processes 

the plan participant's claims for health benefits. Id. Yarrow sought McCulloch's 

services for an arthroscopic knee surgery. Id. Prior to performing the surgery, 

McCulloch contacted UHC and UHC assured McCulloch that Yarrow's plan 

"provided for payment to out-of-network physicians," covered Yarrow's surgical 

procedures, and that UHC "would reimburse [McCulloch] at 70% of UCR [usual, 

customary, and reasonable] rates for such procedures." Id. McCulloch asserts that 

UHC should have paid $15,479.80 for the surgery pursuant to those assurances but 

paid only $641.66. Id. The parties do not dispute that Yarrow’s plan did not 

provide reimbursement at 70% of UCR for the services provided by McCulloch.2

McCulloch sought to recover the amount of payment allegedly promised for 

the surgery so it sued UHC for promissory estoppel in New York state court. 

1

 An "in-network" provider to an ERISA Plan is "a health care provider who is in 

the network of providers with whom the [ERISA Plan] has specially contracted to 

provide services to its members." Montefiore Med. Ctr. v. Teamsters Local 272, 

642 F.3d 321, 325 (2d Cir. 2011). An "out-of-network" provider is a health care 

provider outside of that network. 

2

 See Defendant's Memorandum of Law in Support of Motion to Dismiss, 

McCulloch v. United Healthcare, No. 1:14-cv-06989-JPO, Dkt. No. 5, at *10 

(S.D.N.Y. filed Sept. 3, 2014) (quoting plan document's reimbursement 

methodologies). 
3

Opinion and Order, June 8, 2015, ("Op."), at A491. The complaint filed in state 

court asserted a right to payment pursuant to UHC's promise and not a right to 

payment pursuant to the ERISA plan terms. Compl., at A21. UHC removed the 

case to federal court. Id. McCulloch then moved for a remand to state court. Op., 

at A491. The district court denied McCulloch's motion, concluding that ERISA 

section 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B), completely preempts McCulloch's 

state law claims. Id. Section 502(a)(1)(B) provides that a "plan participant or 

beneficiary" may bring a civil action to "recover benefits due to him under the 

terms of the plan, to enforce his rights under the terms of the plan, or to clarify his 

rights to future benefits under the plan." 

The district court applied the two-prong analysis for complete preemption by 

ERISA section 502(a)(1)(B) established by Aetna Health Inc. v. Davila, 542 U.S. 

200 (2004). Op., at A496-99. The court also relied on this Court's decision in 

Montefiore Med. Ctr. v. Teamsters Local 272, 642 F.3d 321, 324 (2d Cir. 2011), 

which applied Davila to a factually different dispute between a healthcare provider 

and a self-insured plan. Op., at A496, 500-01. 

For prong one, this Court identified two steps in Montefiore, 642 F.3d at 

328. Under prong one, step one, the court asks "whether the plaintiff is the type of 

party that can bring a claim pursuant to § 502(a)(1)(B)." Id. Under prong one, step 

two, the court asks "whether the actual claim that the plaintiff asserts can be 
4

construed as a colorable claim for benefits pursuant to § 502(a)(1)(B)." Id. Under 

prong two, the court asks, "whether there is an independent legal duty that is 

implicated by the defendant's actions." Id. The "test is conjunctive; a state-law 

cause of action is preempted only if both prongs of the test are satisfied." Id. 

The district court concluded that under prong one, step one, the question 

turned on whether McCulloch received an assignment of Yarrow's right to benefits 

under the plan from Yarrow, and therefore became a "type of party" that can sue 

under ERISA section 502(a)(1)(B). Op., at A497. McCulloch argued that its 

assignment from Yarrow was invalid because her plan had an anti-assignment 

clause. Id. UHC conceded that the assignment was invalid. Id. ("[UHC] does not 

dispute that the assignment was invalid."). Nevertheless, the court found this fact 

to be irrelevant, because McCulloch had the ability to sue derivatively under 

ERISA based on its assignment even though "the purported assignment may have 

been ineffective under the terms of the benefit plan." Op., at A498. 

On prong one, step two, the district court concluded that this step turns on 

whether McCulloch's claim concerned a "right to payment" under the ERISA plan 

rather than the "amount of payment" pursuant to an "independent contractual 

obligation[]." Op., at A498-99. The court held that McCulloch's claim implicated 

a right to payment under the plan because the claim concerned "alleged 
5

representations about the plan" and what the plans covered in the form of 

reimbursements. Op., at A499 (emphasis in original). 

On Davila's prong two, the court rejected McCulloch's argument that the 

insurer's actions implicated a legal duty independent of the insurer's obligations 

under the benefits plan. Op., at A500. The court acknowledged that at least four 

circuit courts have concluded that there is no complete preemption where the 

phone call was "a confirmatory confirmation [that]. . . create[s] a basis for an 

independent legal duty, even if it is evident that the communication is planrelated." Op., at A500-501. Yet, the court read Montefiore, 642 F.3d at 328, to 

break with these other circuit decisions and, instead, "specifically reject[ ] the 

argument that confirmatory phone calls create an independent legal duty." Op., at 

A501. 

Accordingly, the court concluded that McCulloch's claim satisfied both 

prongs and was completely preempted by ERISA section 502(a)(1)(B). Op., at 

A501. McCulloch conceded that it could not state a claim for benefits under 

ERISA section 502(a)(1)(B), so the court dismissed the case. Op. at A502. 

McCulloch then timely appealed. 

SUMMARY OF THE ARGUMENT 

1. A state law claim is completely preempted and thus removable to 

federal court under ERISA only if the action satisfies both prongs of a two-pronged 
6

test: (1) the plaintiff could have brought the suit under ERISA, and (2) the claim 

does not implicate an independent duty of the defendant. McCulloch's claim for 

promissory estoppel does not satisfy either prong. Its claim against UHC therefore 

should be remanded to state court. 

2. McCulloch could not have brought its suit as a claim for benefits 

under ERISA section 502(a)(1)(B) for two reasons. First, McCulloch is not a plan 

participant or beneficiary with an independent right to sue for benefits, nor did it 

have a valid assignment of this right from the participant. Second, even if 

McCulloch could have brought suit under ERISA, its state-law claim of 

promissory estoppel turns on the oral communication between the defendant and 

McCulloch, and does not implicate an ERISA plan or depend on its terms. 

McCulloch's suit is thus not a claim for benefits under ERISA. 

Moreover, McCulloch's promissory estoppel claim is based on a legal duty 

independent of any duty UHC may have to pay benefits to plan participants. 

UHC's promises to McCulloch created an independent legal obligation under state 

law, an obligation independent from the ERISA plan terms. This Court's decision 

in Montefiore is not to the contrary because, in that case, the provider's suit 

concerned ERISA plan terms integrated into its contract arrangements with the 

plan and its agents. Here, in contrast, McCulloch has no pre-existing relationship 
7

with the insurer or the ERISA plan, and any dispute centers solely on the insurer's 

broken promise. 

3. Both the Seventh and Ninth Circuits have concluded that ERISA does 

not completely preempt similar claims. Other circuits have applied the same 

reasoning in finding no preemption of similar claims under ERISA's express 

preemption provision. This Court has applied similar reasoning and found claims 

not completely preempted. 

4. Finally, if this Court were to find McCulloch's claims completely 

preempted, this would leave McCulloch, an independent medical provider with no 

relationship to the plan, without any remedy to enforce the insurer's promise to 

reimburse it at 70% of UCR. This significant risk of non-payment may well lead 

McCulloch and other medical providers to decide not to treat, or to otherwise 

screen patients who are participants in certain plans, or to increase its fees, thus 

hurting the plan participants whom ERISA was designed to protect. Furthermore, 

this likely harm to plan participants (and certain harm to medical providers like 

McCulloch who are the recipients of broken promises) is not counterbalanced by 

any increase in uniformity for those administering the plans. Ultimately, complete 

preemption is not only unjustified under the relevant legal authorities but also 

undermines ERISA's principal purpose to protect the plan beneficiaries and 

participants. 
8

ARGUMENT 

ERISA DOES NOT COMPLETELY PREEMPT MCCULLOCH'S STATE 

LAW PROMISSORY ESTOPPEL CLAIM BECAUSE IT COULD NOT 

HAVE BEEN BROUGHT AS AN ERISA CLAIM FOR BENEFITS AND IT 

IS BASED ON THE INSURER'S INDEPENDENT DUTY UNDER STATE 

LAW TO COMPLY WITH ITS PROMISE TO PAY FOR SERVICES 

A. BACKGROUND LEGAL PRINCIPLES 

1. ERISA's Complete Preemption Framework under Davila 

ERISA's "complete preemption" doctrine is a removal doctrine that turns on 

whether "a plaintiff's 'state cause of action [may be recast] as a federal claim for 

relief, making [its] removal [by the defendant] proper on the basis of federal 

question jurisdiction.'" Wurtz v. Rawlings Co., LLC, 761 F.3d 232, 238 (2d Cir. 

2014) (citation omitted), cert. denied, 135 S. Ct. 1400 (2015). 

The Supreme Court addressed complete preemption under ERISA most 

recently in Davila, which held that ERISA completely preempted ERISA plan 

participants' state law claims that their insurers had violated duties of ordinary care 

in refusing to cover certain medical services. 542 U.S. at 214. The Davila Court 

held that these malpractice claims could have been brought as claims for benefits 

under ERISA section 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B), and were thus 

completely preempted by ERISA. Id. The Court reasoned that ERISA's 

comprehensive civil enforcement scheme set out in section 502 completely 

preempts any state-law claim that "duplicates, supplements, or supplants" an 
9

ERISA remedy. Id. at 209, 210. The Court established a two-pronged test for 

making this determination: (1) the plaintiff, "at some point in time could have 

brought his claim under ERISA" section 502, and (2) "there is no other 

independent duty that is implicated by a defendant's actions." Id. at 210. 

Complete preemption under ERISA section 502 is distinct from preemption 

under ERISA's express preemption provision, section 514, 29 U.S.C. § 1144, 

which turns on whether a state law "relates to" an ERISA plan. Section 514 

preemption does not support federal subject-matter jurisdiction but is a form of 

"defensive preemption" used by defendants as an affirmative defense against state 

law claims. Wurtz, 761 F.3d at 238. Complete preemption, on the other hand, 

addresses whether federal subject-matter jurisdiction exists over a claim brought 

under state law. Nevertheless, there is considerable overlap in the analysis. See, 

e.g., Franciscan Skemp Healthcare, Inc. v. Cent. States Bd. Health & Welfare Trust 

Fund, 538 F.3d 594, 600 (7th Cir. 2008). 

2. This Court's Application of the Davila Test in Montefiore 

The district court relied extensively on this Court's interpretation and 

application of Davila to a dispute between a hospital and a self-insured ERISA 

plan3 in Montefiore, 642 F.3d at 326, 328. In Montefiore, the hospital asserted 

3 A self-insured plan is one in which the plan sponsor pays claims out of its own 

assets or from a trust, rather than contracting with an insurance company to pay 

claims under an insurance policy.
10

state-law contract and quasi-contract claims against a self-insured plan for 

improperly reimbursing medical services provided to ERISA plan participants. Id. 

at 326, 328. 

In Montefiore, this Court disaggregated Davila's prong one into two steps. 

642 F.3d at 330. Under prong one, courts must first determine "whether the 

plaintiff was the type of party that could bring a claim pursuant to § 502(a)(1)(B); 

and second, [the court must] consider whether the actual claim that the plaintiff 

asserts can be construed as a colorable claim for benefits pursuant to § 

502(a)(1)(B)." Id. at 328 (emphasis in original). 

With regard to the first step in prong one, this Court in Montefiore noted that 

plaintiff hospital had obtained valid assignments from the patients to pursue their 

claims for plan benefits; therefore, the hospital was "the type of party that can 

bring a claim against the [ERISA plan] regarding benefits pursuant to § 

502(a)(1)(B)." Id. at 329, 330. With regard to the second step of the first prong, 

this Court concluded that at least some of the asserted claims were for benefits 

covered under the plan since they concerned benefit coverage determinations 

rather than "underpayment or untimely payment, where the basic right to payment 

has already been established and the remaining dispute only involves obligations 

from a source other than the Plan." Id. at 331. 
11

With regard to the second prong of Davila, plaintiff hospital argued that 

because it made phone calls to the plan to confirm coverage, these oral 

confirmations "gave rise to an independent duty" between the hospital and the 

plan. Id. at 332. This Court rejected this argument, and concluded that the phone 

conversations between the in-network provider and the Plan "did not create a 

sufficiently independent duty under Davila." Id. Instead, the oral communications 

were part of a "pre-approval process . . . expressly required by the terms of the Plan 

itself and therefore inextricably intertwined with the interpretation of the Plan 

coverage and benefits." Id. (emphasis added). This Court held that "[w]hatever 

legal significance these phone conversations may have had, see Appendix A, they 

did not create a sufficiently independent duty under Davila . . . ." Id. (emphasis 

added). In Appendix A, this Court diagrammed the factual context that led to this 

holding: the provider had called the plan pursuant to plan terms and the provider's 

pre-existing contractual arrangements with the preferred provider organization 

(“PPO”) and the self-insured plan. For these reasons, this Court found the 

hospital's claims were completely preempted. 

As discussed below, the factual circumstances here are distinguishable from 

those in Montefiore. Unlike the hospital in that case, McCulloch was an out-ofnetwork provider with no existing contractual arrangements with the plan or the 

insurer and it did not have a valid assignment of plan benefits from the patient. It 
12

called to verify that the plan would pay for out-of-network services at an 

acceptable rate. McCulloch then relied on the insurer's assurances before 

proceeding with those services. The significant factual differences compel an 

opposite result in this case. 

B. MCCULLOCH'S CLAIM FAILS TO SATISFY EITHER PRONG OF 

THE COMPLETE PREEMPTION TEST 

1. Prong One, Step One: McCulloch Is Not a "Type of Party" That 

Can Bring a Claim Under ERISA Section 502 

Under Montefiore, healthcare providers who obtain "valid" assignments of a 

benefit claim from a plan participant are the types of parties that can bring benefit 

claims under section 502(a)(1)(B). 642 F.3d at 329. Without a valid assignment 

from the plan participant, a healthcare provider may not independently sue under 

ERISA section 502 because it is not a participant or beneficiary. See Montefiore, 

642 F.3d at 329. 

The parties in Montefiore disputed the validity of the provider's assignment. 

This Court in Montefiore rejected the provider's argument that as an "in-network" 

provider it could not receive a valid assignment of benefits. Montefiore, 642 F.3d 

at 330. In reaching its decision, this Court in Montefiore clearly recognized that 

the validity of the assignment is not only relevant to the prong one, step one 
13

analysis, but a court also needs to assess the validity of a party's assignment based 

on the specific facts in each case.4

 Id. at 321 nn.8-10.

In this case, McCulloch is an out-of-network provider suing to enforce 

promises made by an insurer of an ERISA plan with an anti-assignment provision. 

Unlike Montefiore, the parties here do not dispute that the assignment was invalid 

by operation of the anti-assignment clause. Op., at A498-500. Nevertheless, the 

district court still held that McCulloch was a "type of party" that could bring a 

claim pursuant to § 502(a)(1)(B). Id. The district court erred by ignoring both 

Montefiore's clear language that a provider’s assignment must be "valid" for the 

provider to sue under 502(a)(1)(B), and the undisputed invalidity of McCulloch's 

assignment. Without a valid assignment, McCulloch is not the type of party that 

can sue for benefits under section 502(a)(1)(B) and clearly does not satisfy prong 

one, step one. 

2. Prong One, Step Two: McCulloch's Promissory Estoppel Claim 

Cannot be Brought as a Benefits Claim Under ERISA Section 502 

The district court also erred in its analysis of prong one, step two. In this 

prong, the court must determine "whether the actual claims that [plaintiff] asserts 

can be construed as colorable claims for benefits pursuant to § 502(a)(1)(B)." 

4

 The inquiry here is not a full merits inquiry into an assignment's validity or the 

scope of an anti-assignment clause. Nevertheless, as Montefiore held, courts under 

this prong one, step one, must still address whether an assignment was "valid." 

642 F.3d at 330. The scope of this inquiry will depend on the pleadings in each 

case. Here, the assignment's invalidity was undisputed. Op., at A498-500. 
14

Montefiore, 642 F.2d at 330. In other words, the court must determine whether the 

"claims . . . implicate coverage and benefits established by the terms of the ERISA 

benefit plan." Id. McCulloch’s claim does not depend on the coverage and 

benefits under the ERISA plan. In fact, the parties do not dispute that the plan did 

not provide for McCulloch to be reimbursed at 70% of UCR. Instead, 

McCulloch’s claim is based on UHC’s oral promise to reimburse at that rate, a 

promise that was entirely outside the plan provisions. For that reason, 

McCulloch’s claim is not a colorable claim for benefits pursuant to ERISA section 

502(a)(1)(B). 

In reaching the contrary conclusion, the district court relied on a distinction 

between a claim based on a "right to payment" under the plan versus a claim based 

on the "amount of payment" due under obligations outside the plan as discussed in 

Montefiore. Op., at A498-500. As explained below, the district court misapplied 

this distinction and erroneously concluded that UHC's oral representations 

concerned a "right to payment" under the plan simply because these oral 

communications were "about the plan." Id. 

In Montefiore, the plaintiff-provider had a pre-existing contract with the 

preferred provider organization serving the ERISA plan and that contract 

incorporated the ERISA plan's terms. 642 F.2d at 326. The plaintiff-provider then 

raised both contractual claims with respect to the contract and also quasi-
15

contractual claims based on oral communications with plan agents. Id. at 331-32. 

With respect to the contractual claims, this Court in Montefiore found these claims 

were based on the plan terms as incorporated into the contract and, therefore, 

depended on the plan's coverage and benefits, or, stated differently, a "right to 

payment" under the plan. Id. at 331 & n.13. These claims were based on plan 

terms, so they were completely preempted. Id. at 331. Montefiore suggested that 

other claims solely concerning the amount and timeliness of payment to the 

provider would not be preempted because these contractual claims do not implicate 

incorporated plan terms. Id. (characterizing these claims as "independent 

contractual obligations between the provider and the PPO"). The distinction 

between "right to payment" and "amount of payment" has been specifically applied 

only to claims concerning contracts between providers and insurers that 

incorporate plan terms. See Montefiore, 642 F.2d at 331 (citing Lone Star 

OB/GYN Assocs. v. Aetna Health Inc., 579 F.3d 525, 530–31 (5th Cir. 2009); 

Pascack Valley Hosp., Inc. v. Local 464A UFCW Welfare Reimbursement Plan, 

388 F.3d 393, 403-04 (3d Cir. 2004); Blue Cross of Cal. v. Anesthesia Care 

Assocs. Med. Grp., 187 F.3d 1045, 1051 (9th Cir. 1999)). Montefiore's analysis in 

this prong one, step two, therefore, derives from the specific contractual 

arrangement in that case. Here, McCulloch does not have a contractual 

arrangement with the plan or its agents, so McCulloch's suit does not concern any 
16

plan terms or a "right to payment" incorporated into such an arrangement. The 

district court erroneously applied this distinction to UHC's oral promises, which 

are untethered to any pre-existing contractual relationship with McCulloch. 

This Court also rejected the provider's "quasi-contract" claims based on oral 

communications in a pre-approval process because these communications were 

required by the plan under its contractual relationship with the provider. 

Montefiore, 642 F.3d at 322. As a plan requirement, ERISA preempted these 

claims because these claims were "intertwined" with an interpretation of plan 

coverage and benefits. Id. at 322 ("this pre-approval process was expressly 

required by the terms of the Plan itself and is therefore inextricably intertwined 

with the interpretation of Plan coverage and benefits"). This Court specifically 

emphasized the specific factual context, i.e., a web of contractual arrangements, for 

these communications in preempting these claims. Id. at 332, 334 & n.5 (tying 

these oral communications and the plan's pre-approval process to Montefiore's preexisting contractual relationships with a preferred provider organization or "PPO," 

the plan, and its beneficiaries as diagrammed in Appendix A). 

Here, unlike the hospital in Montefiore, McCulloch only asserts a claim of 

promissory estoppel based on oral communications with an unrelated insurer; this 

claim is not based on any alleged entitlement under the plan terms or any written 

contractual arrangement with the insurer or the plan. Furthermore, unlike 
17

Montefiore, these communications were not required under the plan terms or a part 

of an intertwined contractual arrangement with the insurer and the plan. 

McCulloch, unlike the provider in Montefiore, therefore does not base his claim on 

plan terms or a contractual arrangement with incorporated plan terms. 

Accordingly, Montefiore's reliance on the plaintiff's contractual arrangement and 

plan terms to reach its decision on both the contractual and quasi-contractual 

claims renders its holding wholly inapt to McCulloch's claim. 

Other circuit courts have correctly found similar claims not completely 

preempted in analogous factual circumstances. The Ninth Circuit's holding in 

Marin General Hospital v. Modesto & Empire Traction Co., 581 F.3d 941 (9th Cir. 

2009), is instructive. Marin General Hospital held that the type of state law claim 

asserted by McCulloch, which is based on a plan administrator's oral representation 

to a provider and not based on the terms of the plan documents (or those 

incorporated into contracts), does not meet Davila prong one. 581 F.3d at 947. 

The court reasoned that a provider's state law claims based on an "oral contract" 

were unlike those in Davila which "complain[ed] only about denials of coverage 

promised under the terms of an ERISA plan." Id. The Seventh Circuit reached the 

same conclusion in Franciscan Skemp, 538 F.3d at 598 ("Franciscan Skemp is 

seeking damages arising from alleged misrepresentations made by [the plan] to 

Franciscan Skemp in response to its inquiry – a wrong not within § 502's scope"). 
18

In these disputes, the provider is "not arguing about plan terms. It is not seeking to 

recover plan benefits . . . ." Id. at 601. Instead, the provider, like McCulloch, "is 

bringing state-law claims based on the alleged shortcomings in the 

communications between it and" the insurer or the plan. Id. 

Even if this Court should agree with the district court that McCulloch has a 

valid assignment for prong one, step one, a valid assignment does not affect the 

analysis under prong one, step two. In both the Seventh and Ninth Circuit cases, 

the provider was a valid assignee of a participant's or beneficiary's benefit claim 

and could have brought a claim for benefits under ERISA as an assignee. 

Nevertheless, for both courts, the assignment did not convert the third party 

provider's claim based on an oral contract into claims to recover benefits under an 

ERISA plan. E.g., Marin Gen. Hosp., 581 F.3d at 950. Both courts rejected the 

insurer's arguments that an assignment supplants or restricts the provider's right to 

sue based on the provider's own independent rights. See id. at 949 (rejecting the 

argument that "because the [provider] could have brought a suit under § 

502(a)(1)(B) for payments owed to the patient by virtue of the terms of the ERISA 

plan, this is the only suit the [provider] could bring"); Franciscan Skemp, 538 F.3d 

at 598 ("Simply because at one point in time [the provider] acknowledged an 

assignment from [the patient] does not mean that it simultaneously and implicitly 

gave up any claim(s) it had against [the plan] apart from that assignment."). The 
19

Seventh Circuit observed that the provider "is not and could not be 'standing in her 

shoes' or asserting [the patient's] rights" because "[the provider] is basing its claims 

on a conversation to which [the patient] was not even a party." Id. at 598. 

Both circuit courts correctly concluded that state law claims based solely on 

the oral communications between the provider and an insurer to an ERISA plan or 

the ERISA plan itself are not completely preempted. As both circuits recognized, 

such a suit is different from a claim to recover benefits under the plan terms. In 

reaching the opposite conclusion, the district court's decision erroneously departs 

from the well-reasoned decisions from these two circuits and from a proper 

understanding of Montefiore. 

3. Prong Two: McCulloch's Promissory Estoppel Claim Arises from 

an Independent Legal Duty Implicated by UHC's Actions 

The district court also erred in its analysis of the second prong: "whether 

there is an independent legal duty that is implicated by the defendant's actions." 

Montefiore, 642 F.3d at 328. As with prong one, the district court erred in 

concluding that McCulloch's claim was analogous to the claims in Montefiore 

because McCulloch failed to implicate an independent legal duty. Unlike the 

provider in Montefiore, McCulloch was unrelated to the plan or its insurer; 

McCulloch was an out-of-network provider that called an insurer for assurance that 

it would pay out-of-network providers at an acceptable rate. McCulloch had no 

pre-existing contractual obligations with the insurer or the plan that would 
20

implicate an ERISA plan's terms. UHC's assurances to McCulloch that it would 

pay McCulloch for its services allegedly created an independent legal duty to pay 

the amount promised under the state law rule of promissory estoppel. 

McCulloch's claims are similar to the claims in Stevenson v. Bank of New 

York Co., 609 F.3d 56, 60 (2d Cir. 2010), and the district court's decision is 

contrary to this Court’s decision in that case. In Stevenson, plaintiff asserted state 

law claims, including promissory estoppel, based on his employer's promises that 

his pension benefits would be maintained after an international move, which would 

otherwise make him ineligible for benefits. 609 F.3d at 60. This Court found 

those claims were not completely preempted, reasoning that "[b]ecause Stevenson's 

state law claims derive from [a] promise rather than from an ERISA benefits plan, 

their resolution does not require a court to review the propriety of an 

administrator's or employer's determination of benefits under such a plan." Id. at 

60-61. Though these representations "reference[d]" the terms of the benefit plan, 

the claims were not completely preempted because the representations constituted 

a "separate promise" from which the state law claims were derived. Id. In 

Stevenson, this Court concluded that the participant was asserting an independent 

state law claim, not a claim based on the terms of the ERISA plan. 609 F.3d at 60. 

Here, as in Stevenson, McCulloch's claim depends solely on UHC's 

representations and oral promises to McCulloch, a legal basis independent from the 
21

plan terms. See Davila, 542 U.S. at 215 ("'the wording of [respondents'] plans is 

immaterial to their claims"). Unlike claims completely preempted by ERISA, the 

claim alleged here does not arise from any rights or obligations established by 

ERISA or the terms of the ERISA plan but rather, if at all, from an independent 

state law duty when speaking to a third-party provider. See id. at 213. 

Accordingly, the claims as pleaded concern an "independent legal duty that is 

implicated by a defendant's actions" unrelated to the plan terms or the ERISA 

remedies designed to remedy violations of those terms. Id. at 210. 

Again, this Court's decision in Montefiore is inapposite. The phone 

conversations in Montefiore were expressly required by the pre-approval process 

pursuant to plan terms and were held within a contractual web connecting the 

provider, the ERISA plan, an organization of providers or PPOs, and the plan 

beneficiaries. 642 F.3d at 332, 326 n.5, 334, Appendix A. Because of this tangle 

of interconnected relationships, the oral communications between the plan and the 

provider were governed and required by the "terms of the Plan itself" and 

"therefore inextricably intertwined with the interpretation of Plan coverage and 

benefits." Id. at 332. Accordingly, the provider's claims did not appear to be 

claims that concerned "obligations derived from a source other than the Plan." Id. 

at 331. Unlike Montefiore, the obligations here arise from an independent source, 

the insurer's oral promise, and not on plan terms or a contractual arrangement that 
22

incorporated those terms. Because McCulloch's state law claim derives from an 

independent promise rather than from the terms of an ERISA benefits plan, its 

claim is not be completely preempted by ERISA. See Stevenson, 609 F.3d at 61. 

In accord, the Seventh and Ninth Circuits both concluded that similar state 

law claims based on an oral promise from the plan or insurer to a provider may 

constitute an independent duty under prong two. The Ninth Circuit, for example, 

concluded that "[t]he question under the second prong of Davila is whether the 

complaint relies on a legal duty that arises independently of ERISA. Since the 

state-law claims asserted in this case are in no way based on an obligation under an 

ERISA plan, and since they would exist whether or not an ERISA plan existed, 

they are based on 'other independent legal dut[ies]' within the meaning of Davila." 

Marin Gen. Hosp., 581 F.3d at 950. As in Marin General Hospital, the obligation 

here arises from UHC's oral promises and these promises "exist whether or not" the 

patient had an ERISA plan. See id. Reaching the same conclusion, the Seventh 

Circuit, in Franciscan Skemp, 538 F.3d at 599, stated that "the relevant legal 

duties, logically implicated by these facts, are entirely independent from ERISA 

and any plan terms." 

It is important to note that just as in prong one, step two, having a valid 

assignment does not change the analysis for prong two. See Franciscan Skemp, 

538 F.3d at 598; Marin Gen. Hosp., 581 F.3d at 950; see also, supra pp. 18-19. The 
23

state-law claim of a provider with a valid assignment is still not completely 

preempted if the claim is based on an independent legal duty stemming from the 

insurer’s oral promises. McCulloch “is not suing defendants based on any 

assignment from the patient of his rights under his ERISA plan pursuant to § 

502(a)(1)(B); rather, it is suing in its own right pursuant to an independent 

obligation.” Marin Gen. Hospital, 581 F.3d at 948. 

4. The District Court's Conclusion that ERISA Preempts 

McCulloch's Promissory Estoppel Claim is Contrary to Other 

Circuit Court Decisions 

There is an overwhelming and persuasive consensus that state law claims 

similar to the one in this appeal are not completely preempted under ERISA 

section 502 or preempted under section 514. As discussed earlier, two circuit 

courts in Franciscan Skemp and Marin General Hospital have rejected complete 

preemption under ERISA 502 in circumstances similar to this case. 

In so holding, the Seventh Circuit relied on other decisions from the Eighth, 

Ninth, Tenth, and Eleventh Circuits, all of which have held similar claims with 

analogous factual circumstances not preempted under ERISA section 514 using 

similar reasoning. See Franciscan Skemp, 538 F.3d at 599 (citing In Home Health, 

Inc. v. Prudential Ins. Co., 101 F.3d 600, 602 (8th Cir. 1996); The Meadows v. 

Employers Health Insurance, 47 F.3d 1006, 1009 (9th Cir. 1995); Lordmann 

Enterprises, Inc. v. Equicor, Inc., 32 F.3d 1529, 1533 (11th Cir.1994), cert. denied, 
24

516 U.S. 930 (1995); and Hospice of Metro Denver, Inc. v. Group Health Ins. of 

Okla., Inc., 944 F.2d 752, 753 (10th Cir. 1991)); accord Access Mediquip L.L.C. v. 

UnitedHealthcare Ins. Co., 662 F.3d 376, 387 (5th Cir. 2011), opinion reinstated, 

698 F.3d 229 (5th Cir. 2012) (en banc).5 While many of these cases are preDavila and most deal with preemption under ERISA section 514, the Seventh 

Circuit in Franciscan Skemp recognized that "similar underlying policy 

considerations," i.e., the independence of these claims from the patient's claims for 

ERISA plan benefits, inform both types of ERISA preemption analyses in these 

cases and the court "do[es] not find any concrete reason to suppose that the 

5

 The contrary view is held solely by the Sixth Circuit in Cromwell v. EquicorEquitable HCA Corp., 944 F.2d 1272 (1991). The Cromwell case involved a valid 

assignment, and the Sixth Circuit found that preemption was proper, because the 

substance of the "breach of contract claim was for benefits payable under an 

employee health insurance plan." Cromwell, 944 F.2d at 1276. The court found 

that the provider "clearly claimed to be entitled to benefits due them from the . . . 

plan as beneficiaries by virtue of the assignment of benefits clause." Id. at 1278-

1279. The court then conflated the claims under the assignment with the 

independent state law claims, emphasizing plaintiffs' "repeated" reliance on the 

valid assignment. Id. The Cromwell opinion has been strongly criticized. As the 

Seventh Circuit pointed out in Franciscan Skemp, 538 F.3d at 600, the dissenting 

judge in Cromwell "criticized the majority's focus on the alleged 'assignment.'" 

The dissent concluded that the majority's opinion was "emblematic of what seems 

to be an overzealous readiness in the federal courts to bar all state-law claims 

which even smell of ERISA under the broad umbrella of preemption without 

engaging in the complex case-by-case analysis which the statute and precedent 

require." Cromwell, 944 F.2d at 1279; see also Franciscan Skemp, 538 F.3d at 601 

("Cromwell is a poorly reasoned outlier"). 
25

conclusions reached in these cases have been deemed incorrect by Davila." 538 

F.3d at 600.6 

The underlying rationale that governs the decisions of these six circuit courts 

is that the ERISA participant and the healthcare provider have independent and 

separate rights. As the Tenth Circuit in Hospice of Metro Denver succinctly 

concluded: "[a]n action brought by a health care provider to recover promised 

payment from an insurance carrier is distinct from an action brought by a plan 

participant against the insurer seeking recovery of benefits due under the terms of 

the insurance plan." 944 F.2d at 756. In short, the relationship between the 

healthcare providers with the insurer is a separate relationship with independent 

duties from the one between the insurer and the plan participants. See, e.g., 

Franciscan Skemp, 538 F.3d at 600-601; In Home Health, 944 F.2d at 1277-278; 

Lordmann Enterprises, 32 F.3d at 1534. Under this rationale, these claims 

implicate an independent duty under Davila's prong two analysis for complete 

preemption. This Court also cited with approval this rationale in Wurtz, 761 F.3d 

at 244-45, where it held that a plan participant's state right to enjoin an insurer's 

6 State appellate courts have endorsed the same rationale to hold that ERISA 

section 514 does not preempt similar claims. See, e.g., Alliance Health of Santa 

Teresa Inc. v. Nat'l Presto Ind., Inc., 113 P.3d 360, 371-73 (N.M. App. Ct. 2005); 

Weiser v. United Food and Commercial Workers Unions and Emp'rs Midwest 

Health Benefits Fund, 653 N.E.2d 51, 53 (Ill. App. Ct. 1995); Brookwood Med. 

Ctr. v. Celtic Life Ins., 637 So.2d 1385, 1387-390 (Ala. Civ. App. Ct. 1994); cf. St. 

Joseph's Hosp. & Med. Ctr v. Reserve Life Ins. Co., 742 P.2d 808, 817 (Ariz. 

1987) (finding tort liability for insurer's oral promises to provider). 
26

subrogation action against his tort settlement was not completely preempted under 

ERISA. This Court cited Marin General Hospital and Franciscan Skemp with 

approval in reaching this conclusion. Id. 

Significantly, Montefiore itself also cited both Franciscan Skemp and Marin 

General Hospital with approval. 642 F.3d at 327-28. Far from expressing the 

intent to create a conflict with these decisions Montefiore recognized that Marin 

General Hospital properly held that "although plan beneficiaries had validly 

assigned their ERISA claims to the provider hospital, the actual claim brought by 

the hospital was based on a separate contractual obligation." 642 F.3d at 328. In 

Marin General Hospital, the "separate contractual obligation" was based on oral 

promises made over the phone, much like the claims here. 642 F.3d at 947. 

Accordingly, Montefiore cannot plausibly be read to conflict with these wellestablished holdings, which support no complete preemption of McCulloch's claim. 

The district court erred in relying on Montefiore in reaching the contrary 

conclusion that McCulloch's claim is completely preempted. 

5. Completely Preempting McCulloch's Promissory Estoppel Claim 

Would Unfairly Leave An Independent Medical Provider Without any 

Remedy to Enforce an Insurer's Promises, Thereby Indirectly Harming 

Plan Participants Without Serving to Promote Uniformity in the 

Administration of the Patient's Medical Benefits Plan 

The Supreme Court has stressed that "the starting presumption [is] that 

Congress does not intend to supplant state law," New York State Conference of 
27

Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 654 (1995), 

and has instructed the courts to look "to the objectives of the ERISA statute as a 

guide to the scope of the state law that Congress understood would survive," id. at 

655-656. This Court in Gerosa, 329 F.3d at 320, 329-330, described ERISA 

preemption in relation to two related purposes. First, ERISA's "principal goal" is 

to protect the interests of participant and beneficiaries. Id.; see also 29 U.S.C. § 

1001 (purpose of ERISA is "to protect . . . the interests of participants in 

employee benefit plans and their beneficiaries"). Second, ERISA preemption is 

also concerned with "the planning interests and administrative burdens of 

employers and plan administrators," such as the uniformity of plan administration. 

Gerosa, 329 F.3d at 329; see also Davila, 542 U.S. at 208 ("The purpose of ERISA 

is to provide a uniform regulatory regime over employee benefit plans."). 

Preemption here harms the interests of plan participants and beneficiaries. 

Preemption would unfairly leave third-party providers, like McCulloch, without 

any remedies for the insurer's oral assurances that caused detrimental reliance. As 

other circuit courts uniformly recognize, preemption of a provider's state law 

claims would leave them without any remedy because they lack standing to pursue 

those claims independently under ERISA. E.g., Hospice of Metro Denver, 944 

F.2d at 755. Such a result harms beneficiaries and participants because the thirdparty providers might deny care, increase patient screening, or raise fees in order to 
28

cover the risk of insurer misrepresentation or other errors. See, e.g., In Home 

Health, 101 F.3d at 606-07; The Meadows, 47 F.3d at 1011; cf. Gerosa, 329 F.3d 

at 320, 329-330 (relying on In Home Health, 101 F.3d at 606-07, which this Court 

favorably described as "holding that [a] rule leaving health-care providers with no 

remedy against [a] plan would be contrary to Congress's intentions because it 

would result in higher costs and other inconveniences to beneficiaries"). The 

Eleventh Circuit in Lordmann aptly summarized the harm to providers, like 

McCulloch, and the plan participants: 

The "commercial realities" of the health care industry require that 

health care providers [like McCulloch] be able to rely on insurers' 

representations as to coverage. . . . If ERISA preempts their potential 

causes of action for misrepresentation, health care providers can no 

longer rely as freely and must either deny care or raise fees to protect 

themselves against the risk of noncoverage. In that event, the 

employees whom Congress sought to protect would find medical 

treatment more difficult to obtain. 

Lordmann, 32 F.3d at 1533. 

Permitting McCulloch to sue under state law would not undermine the 

uniformity in the administration of benefits. This Court recognized in Stevenson 

that "because Stevenson's suit neither interferes with the relationships among core 

ERISA entities nor tends to control or supersede their functions, it poses no danger 

of undermining the uniformity of the administration of benefits that is ERISA's key 

concern." 609 F.3d at 61. In Stevenson, this Court found that ERISA Section 

502(a) did not preempt Stevenson's state law claims, because the claims were "in 
29

themselves neutral toward ERISA plans." Id. "These claims make reference to 

ERISA plans solely as a means of describing the consideration underlying an 

alleged contract that itself is separate from the terms of any plan; they will not 

affect the referenced plans, particularly not in a way that threatens ERISA's goal of 

uniformity." Id. Likewise, here, McCulloch's claims are based on a single oral 

communication with an unrelated insurer and is "neutral toward" the ERISA plan; 

the claim is based solely on the alleged oral promise between the insurer and the 

provider that "is separate from the terms of any plan," and "will not affect the 

referenced plans." See Stevenson, 609 F.3d. at 61. The claim here likewise does 

not "threaten[ ] ERISA's goal of uniformity" in plan administration. Id. 

Preemption of McCulloch's claims would undermine ERISA's "principal 

goal" of protecting the interests of plan participants while permitting McCulloch to 

sue the insurer under state law does not interfere with ERISA's goal of uniformity. 
30

CONCLUSION 

For the reasons set forth above, the Secretary requests that this Court reverse 

the district court's ruling that plaintiff-provider's state law claims are completely 

preempted. 

Respectfully submitted, 

M. PATRICIA SMITH 

Solicitor of Labor 

G. WILLIAM SCOTT 

Associate Solicitor 

THOMAS TSO 

Counsel for Appellate Litigation 

_/S/SUSANNA BENSON____ 

SUSANNA BENSON 

Attorney 

U.S. Department of Labor 

Office of the Solicitor 

Plans Benefits Security Division 

P.O. Box 1914 

Washington, DC 20013 

(202) 693-5682
31

CERTIFICATE OF COMPLIANCE 

Pursuant to Fed. R. App. P. 29(d) and 32(a)(7)(B)-(C), I certify that this amicus 

brief uses a mono-spaced typeface of 14 characters per inch and contains 6,996 

words. 

Dated: October 22, 2015 

/s/ Susanna Benson 

SUSANNA BENSON 

Attorney 

United States Department of Labor 

Plan Benefits Security Division 

200 Constitution Ave., N.W., N-4611 

Washington, D.C. 20210 
CERTIFICATE OF SERVICE 

I hereby certify that on this 22nd day of October, 2015, I electronically filed the 

foregoing Brief of The Secretary, United States Department of Labor, as Amicus 

Curiae, in Support of Plaintiff-Appellant, with the Clerk of the Court for the United 

States Court of Appeals for the Second Circuit by using the CM/ECF system. I 

certify that all participants in this case are registered CM/ECF users and that 

service will be accomplished by the CM/ECF system. 

/s/ Susanna Benson 

SUSANNA BENSON 

Attorney 

United States Department of Labor 

Plan Benefits Security Division 

200 Constitution Ave., N.W., N-4611 

Washington, D.C. 20210