No. 17-4181

________________________________________

IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

__________________________________________

JASON SPRINGER,

Plaintiff-Appellant,

v.

CLEVELAND CLINIC EMPLOYEE HEALTH PLAN TOTAL CARE, 

Defendant-Appellee.

____________________________________________

On Appeal from the United States District Court 

for the Northern District of Ohio

_____________________________________________

BRIEF OF THE SECRETARY OF LABOR, AS

AMICUS CURIAE IN SUPPORT OF APPELLANT

______________________________________________

KATE S. O'SCANNLAIN THOMAS TSO

Solicitor of Labor Counsel for Appellate and 

Special Litigation

G. WILLIAM SCOTT MARCIA BOVE

Associate Solicitor for Senior Trial Attorney

Plan Benefits Security U.S. Department of Labor

Room N-4611

200 Constitution Ave., N.W.

Washington, D.C. 20210

(202) 693-5589
i

TABLE OF CONTENTS

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

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

STATEMENT OF IDENTITY, INTEREST AND AUTHORITY TO FILE........... 1 

STATEMENT OF THE CASE ................................................................................. 3 

SUMMARY OF THE ARGUMENT ........................................................................ 8 

ARGUMENT...........................................................................................................10

Plaintiff Has Article III Standing To Challenge The Adjudication Of His 

Benefits Claim..........................................................................................................10

A. Plaintiff's "Injury-in-Fact" Satisfies Constitutional

 Requirements. ...........................................................................................10

B. Affirmance Would Disrupt Established Billing Practices. .......................19

C. The District Court's Opinion Misreads Precedent And Is 

 Inconsistent With The Claims Regulation ................................................23

CONCLUSION........................................................................................................25

CERTIFICATE OF SERVICE

CERTIFICATE OF COMPLIANCE WITH RULE 32(a)
ii

TABLE OF AUTHORITIES

Federal Cases:

Angel Jet Servs., LLC v. Cleveland Clinic Emp. Health Plan Total Care,

34 F. Supp. 3d 780 (N.D. Ohio 2014) ..............................................................6, 24

Biomed Pharm., Inc. v. Oxford Health Plans (N.Y.), Inc.,

No. 10-CV-7427, 2011 WL 803097 (S.D.N.Y. Feb. 18, 2011).................... 14 n.2

Brown v. BlueCross BlueShield of Tenn., Inc.,

827 F.3d 543 (6th Cir. 2016) ......................................................................... 20 n.4

Cagle v. Bruner,

112 F.3d 1510 (11th Cir. 1997) ............................................................................20

CardioNet, Inc. v. Cigna Health Corp.,

751 F.3d 165 (3d Cir. 2014) .................................................................... 13, 20, 22

Carlsen v. GameStop, Inc.,

833 F.3d 903 (8th Cir. 2016) ................................................................................17

Castro Convertible Corp. v. Castro,

596 F.2d 123 (5th Cir. 1979) ................................................................................17

CIGNA v. Amara,

563 U.S. 421 (2011)..............................................................................................18

Cromwell v. Equicor–Equitable HCA Corp.,

944 F.2d 1272 (6th Cir. 1991) ..............................................................................10

Donovan v. Cunningham,

716 F.2d 1455 (5th Cir. 1983) ................................................................................1

E.A. Renfroe & Co., Inc. v. Moran,

249 F. App'x 88 (11th Cir. Aug. 24, 2007)...........................................................16
iii

Federal Cases-(continued):

HCA Health Servs. of Georgia, Inc. v. Emp'rs Health Ins. Co.,

240 F.3d 982 (11th Cir. 2001) overruled on other grounds by, 

Doyle v. Liberty Life Ins. Co., 542 F.3d 982 (11th Cir. 2008)................. 9, 14, 15

Hermann Hosp. v. MEBA Med. & Benefits Plan,

845 F.2d 1286 (5th Cir. 1988) abrogated on other grounds by,

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

 698 F.3d 229 (5th Cir. 2012) ....................................................................... 21, 22

I.V. Servs. of Am., Inc. v. Trs. of Am. Consulting Eng'rs Council Ins. Tr. Fund,

136 F.3d 114 (2d Cir. 1998) .......................................................................... 21 n.4

I.V. Servs. of Am., Inc. v. Inn Dev. & Mgmt.,

182 F.3d 51 (1st Cir. 1999)............................................................................ 21 n.4

In re Thorpe Insulation Co.,

677 F.3d 869 (9th Cir. 2012) ................................................................................17

Johnson v. Allsteel, Inc.,

259 F.3d 885 (7th Cir. 2001) ................................................................................17

Katz v. Pershing, LLC,

672 F.3d 64 (1st Cir. 2012)............................................................................ 16, 17

Kennedy v. Conn. Gen. Life Ins. Co.,

924 F.2d 698 (7th Cir. 1991) ................................................................... 20, 22 n.6

Krauss v. Oxford Health Plans, Inc.,

517 F.3d 614 (2d Cir. 2008) .......................................................................... 22 n.6

Kuhns v. Scottrade, Inc.,

868 F.3d 711 (8th Cir. 2017) ................................................................................16
iv

Federal Cases-(continued):

L-3 Commc'ns Corp. v. Serco, Inc.,

673 F.App'x 284 (4th Cir. 2016) (unpublished) ...................................................17

Linton by Arnold v. Comm'r of Health and Env't, State of Tenn.,

973 F.2d 1311 (6th Cir. 1992) ..............................................................................16

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992)..............................................................................................17

Lutheran Med. Ctr. of Omaha, Neb. v. Contractors, Laborers, Teamsters 

and Eng'rs Health and Welfare Plan,

25 F.3d 616 (8th Cir. 1994) abrogated on the grounds by, 

Martin v. Blue Cross & Blue Shield,

299 F.3d 966 (8th Cir. 2002) ......................................................................... 21 n.4

Mass. Mut. Life Ins. Co. v. Russell,

473 U.S. 134 (1985)..............................................................................................17

M & G Polymers USA, LLC v. Tackett,

135 S. Ct. 926 (2015)............................................................................................17

Misic v. Bldg. Serv. Emps. Health and Welfare Tr.,

789 F.2d 1374 (9th Cir. 1986) ..............................................................................20

Montefiore Med. Ctr. v. Teamsters Local 272,

642 F.3d 321 (2d Cir. 2011) .................................................................................19

North Cypress Med. Ctr. Operating Co. v. CIGNA Healthcare,

781 F.3d 182 (5th Cir. 2015) ........................................................................ passim

North Jersey Brain and Spine Ctr. v. Aetna, Inc.,

801 F.3d 369 (3d Cir. 2015) .................................................................... 21 n.4, 23
v

Federal Cases-(continued):

Peterson v. Am. Life & Health Ins. Co.,

48 F.3d 404 (9th Cir. 2013) ....................................................................................2

Riverview Health Inst. LLC v. Med. Mut. of Ohio,

601 F.3d 505 (6th Cir. 2010) ......................................................................... 22 n.5

Ruhrgas AG v. Marathon Oil Co.,

526 U.S. 574 (1999)..............................................................................................10

Smith v. SEC,

129 F.3d 356 (6th Cir. 1997) (en banc)..................................................................3

Soehnlen v. Fleet Owners Ins. Fund,

844 F.3d 576 (6th Cir. 2016) ......................................................................... 23, 24

Spinedex Physical Therapy USA, Inc. v. UnitedHealthcare of Ariz., Inc.,

770 F.3d 1282 (9th Cir. 2014) ....................................................... 9, 13, 14, 15 n.3

Spokeo, Inc. v. Robins,

136 S. Ct. 1540 (2016) (Thomas, J., concurring).............................. 10, 11, 15, 17

Springer v. Cleveland Clinic Emp. Health Plan Total Care,

No. 1:15-CV-00020, 2017 WL 4837478 (N.D. Ohio Oct. 26, 2017) .......... passim

Sprint Commc'ns Co., L.P. v. APCC Servs., Inc.,

554 U.S. 269 (2008)..............................................................................................13

Tenn. Elec. Power Co. v. Tenn. Valley Auth.,

306 U.S. 118 (1939)..............................................................................................16

Turner v. Fallon Cmty. Health Plan, Inc.,

127 F.3d 196 (1st Cir. 1997).................................................................................18
vi

Federal Cases-(continued):

U.S. Airways, Inc. v. McCutchen,

569 U.S. 88 (2013)............................................................................................2, 17

United Steel, Paper & Forestry, Rubber, Mfg, Energy, Allied Ind. & Serv. Workers 

Int'l Union, AFL–CIO/CLC v. Cookson Am., Inc.,

710 F.3d 470 (2d Cir. 2013) .......................................................................... 15, 16

Warth v. Seldin,

422 U.S. 490 (1975)................................................................................................3

Federal Statutes:

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

29 U.S.C. § 1001 et seq.:

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

Section 2(b), 29 U.S.C. § 1001(b) ..........................................................................2

Section 502, 29 U.S.C. § 1132................................................................................1

Section 502(a), 29 U.S.C. § 1132(a).............................................................. 20 n.4

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

Section 503, 29 U.S.C. § 1133................................................................. 22 n.6, 24

Section 505, 29 U.S.C. § 1135................................................................................1

Federal Regulations:

29 C.F.R. § 2560.503-1(g)(1)(iii) ..................................................................... 22 n.6

29 C.F.R. § 2560.503-1(m)(4)(1).............................................................................24
vii

Miscellaneous:

Fed.R.App.P. 29(a) ....................................................................................................3

 12(b)(6)..............................................................................................16

6A C.J.S. Assignments § 110 (2017).......................................................................13
QUESTION PRESENTED

Plaintiff Jason Springer, a participant in the defendant Cleveland Clinic 

Employee Health Plan Total Care (the "Plan"), filed suit under the Employee 

Retirement Income Security Act of 1974 ("ERISA") as amended, 29 U.S.C. § 

1001, et. seq., contesting the Plan's denial of his claim for full payment of the 

cost of air-ambulance transportation for his son who suffers from serious health 

conditions. The Plan moved to dismiss the participant's claim for lack of 

subject matter jurisdiction. The court granted the motion, holding that because 

the air-ambulance service had not billed the participant for its services, the 

participant failed to allege facts sufficient to demonstrate an "injury in fact" 

and, therefore, lacked constitutional standing under Article III. The Secretary 

of Labor's brief addresses the following issue:

Whether a participant in an ERISA-covered plan who sues the plan for 

wrongfully denying his claim for payment of medical services suffered an 

"injury in fact" when the plan refused to fully reimburse his medical provider.

STATEMENT OF IDENTITY, INTEREST AND AUTHORITY TO FILE

The Secretary of Labor has primary authority to interpret and enforce the 

provisions of Title I of ERISA to effectuate its protective purposes. See 29 U.S.C. 

§§ 1132, 1135; Donovan v. Cunningham, 716 F.2d 1455, 1462-63 (5th Cir. 1983). 

The district court's decision bars the plaintiff from exercising his statutory right to 
2

have his benefits claim determined in accordance with the plan terms by a federal 

court. If allowed to stand, the decision's reasoning improperly frustrates

Congress's express intent to provide plan participants "ready access to the Federal 

courts," 29 U.S.C. § 1001(b), "to 'protect contractually defined benefits.'" U.S. 

Airways, Inc. v. McCutchen, 569 U.S. 88, 100-101 (2013) (citation omitted). The 

Secretary has a compelling interest in ensuring that the district court's ruling, which 

requires a participant's healthcare provider to bill the participant before the 

participant can challenge his plan's decision not to cover the provider's services,

does not erroneously impose a constitutional barrier for plan participants with 

routine claim disputes. 

The Secretary also has a compelling interest in ensuring courts adopt a 

uniform national rule that participants have standing to sue for unpaid benefits 

without receiving a direct bill for medical care, and that the relevant injury is the 

plan's failure to pay for the services at the plan's promised rate, not the participant's 

receipt of a bill. Cf. Peterson v. Am. Life & Health Ins. Co., 48 F.3d 404, 409 (9th 

Cir. 1995) (urging uniformity in conferring standing for ERISA claims). The 

district court's decision to deny a participant constitutional standing because his 

provider did not directly bill him conflicts in principle with rulings by the Fifth, 

Ninth, and Eleventh Circuits and would impose severe consequences for ERISA 

participants by unraveling well-established billing practices. 
3

The Secretary does not address the merits of the benefits claim. Standing "in 

no way depends on the merits of the plaintiff's contention that particular conduct is 

illegal." Smith v. SEC, 129 F.3d 356, 363 (6th Cir. 1997) (en banc) (quoting 

Warth v. Seldin, 422 U.S. 490, 500 (1975)). The Secretary files this brief pursuant 

to Federal Rule of Appellate Procedure 29(a). 

STATEMENT OF THE CASE

Plaintiff Jason Springer, a physician, formerly lived with his family in Utah. 

Springer v. Cleveland Clinic Emp. Health Plan Total Care, No. 1:15-CV-00020, 

2017 WL 4837478, at *1 (N.D. Ohio Oct. 26, 2017).

1

 In the spring of 2010, Dr. 

Springer accepted a position with the Cleveland Clinic (the "Clinic") in Ohio. Id. 

He was to begin his employment on July 1, 2010. Id. He enrolled himself, his 

wife, and his son, J.S., in the Plan established for the Clinic's employees and their 

dependents. Id. The Plan's benefits are self-funded by the Clinic and are not 

covered by an insurance policy. Id. at *3. The Plan is administered by Antares 

Management Solutions, Inc. ("Antares"), a third-party plan administrator ("TPA") 

that makes eligibility and benefit coverage determinations for the Plan. Id. at *2, 

*3. Under the Plan's terms, "as long as you have enrolled in the health plan within 

31 days of your start date, your coverage is effective on the first day you actively 

 1 The Secretary's factual statements are based on the district court's factual 

statements and the parties' undisputed characterization of the evidentiary record.
4

start to work." Id. The Springer family became participants in the Plan on July 1, 

2010. Id. 

J.S. was born on May 4, 2009, with multiple congenital abnormalities, the 

most serious of which were omphalocele (external protrusion of the intestine and 

other abdominal organs from the navel), left intra-abdominal fluid collection near 

the left kidney, and amniotic band syndrome (no stomach muscles). See Pl.'s 

Opening Br. for J. on the Administrative R. ("Opening Br.") 4. These conditions 

and ensuing severe complications required around-the-clock healthcare and left 

J.S. dependent on a mechanical ventilator to breathe. Id. 

When Dr. Springer accepted his position, he arranged to have J.S., then 14 

months old, transported to a waiting hospital bed at the Clinic by Angel Jet 

Services, LLC ("Angel Jet"), an air ambulance service selected by Dr. Springer. 

Springer, 2017 WL 4837478, at *1; Opening Br. 5. J.S.'s primary care physician 

signed a Medical Letter of Necessity explaining the need for such transportation 

services. Springer, 2017 WL 4837478, at *1. Among other things, J.S. required a 

critical-care neonatal flight nurse and paramedic during transport. Opening Br. 5. 

In the case of an emergency, the Plan covers all air-transportation costs to get to an 

emergency room. Springer, 2017 WL 4837478, at *6. Absent an emergency, the 

Plan will pay 100% of those costs only if the Plan pre-certifies coverage, i.e., preapproves coverage. Id. 
5

Angel Jet sought coverage information from Antares before the flight. 

Springer, 2017 WL 4837478, at *3. Antares was unable to verify the family's 

enrollment when J.S. was scheduled for transport by Angel Jet's air ambulance to 

the Clinic on July 7, 2010, because the service occurred during the enrollmentprocessing period. Id. The Plan provides that claims for medical services rendered 

during the enrollment-processing period "may be denied" initially but the "claims 

will be adjusted on the backend when the TPA processes your benefit selections 

data." See Opening Br. 3. Dr. Springer relied upon that plan language in later 

asserting his claim that the Plan must fully pay for Angel Jet's services despite the 

lack of pre-certification. Springer, 2017 WL 4837478, at *6 ("[T]he record does 

not reflect an attempt [by Angel Air] to obtain precertification for the air 

ambulance services prior to the date of the flight."). 

Shortly after J.S. arrived at the Clinic on July 7, 2010, Angel Jet submitted a 

bill directly to Antares for $340,100 for its services. Springer, 2017 WL 4837478, 

at *1. On August 31, 2010, an Antares representative informed Angel Jet that the 

claim was approved. Id. However, on September 2, 2010, Antares denied the 

claim because it found that Angel Jet did not establish that an emergency existed 

and that the Plan did not pre-certify coverage as required in non-emergencies. Id.

Normally, the Plan provides its air-ambulance benefit through a different 

airline with which the Plan has an ongoing relationship. Springer, 2017 WL 
6

4837478, at *1; see also Def.'s Resp. Br. for J. on the Administrative R. ("Resp. 

Br."), 7 (calling the airline a "preferred provider"). Based on this relationship, the 

Plan offers members a steep discount on air ambulance services. Springer, 2017 

WL 4837478, at *1. While the Plan denied Angel Jet's $340,100 claim, it 

nevertheless issued Angel Jet a check for $34,451.75 (approximately 10% of the 

billed charges) on January 27, 2011. Id. at *1, *6. According to the Plan, this 

payment is the amount the Plan's preferred provider of air transport services would 

have charged for transporting J.S. Id. at *1. The Plan asserts in litigation that this 

payment was "not required due to lack of preauthorization, [but] had been paid out 

of fairness." See Resp. Br. 7. Angel Jet sued for benefits under ERISA section 

502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B), for the remainder of the $340,100 bill, 

asserting that Dr. Springer assigned his claim to benefits to Angel Jet. Angel Jet 

Servs., LLC v. Cleveland Clinic Emp. Health Plan Total Care, 34 F. Supp. 3d 780, 

781-82 (N.D. Ohio 2014) (Angel Jet "challenges the decision of the Plan 

Administrator and seeks full payment under the Plan."). The court dismissed the 

suit, because it found that Dr. Springer had not assigned his benefits claim to 

Angel Jet. Id. at 783.

Dr. Springer then made his own claim for benefits under the Plan, requesting 

that the Plan pay Angel Jet 100% of the billed charges. Springer, 2017 WL 

4837478, at *1. Antares denied the claim, finding that Dr. Springer failed to
7

establish that an emergency existed and that the Plan did not pre-certify coverage 

as required in non-emergencies. Id. Dr. Springer filed suit under ERISA section 

502(a)(1)(B) against the Plan, challenging the denial of the full amount of the 

billed charges. Id. at *1. The Plan then moved to dismiss the case, contending that 

Dr. Springer did not have constitutional standing. Id. at *2. The district court 

agreed and dismissed the case because Dr. Springer failed to show a "concrete 

injury" under Article III. Id. at *5. The district court first found the record 

"entirely silent on any charges from Angel Jet to [Dr. Springer]. [Dr. Springer] 

does not point the Court to any evidence in the administrative record 

demonstrating that [he] is liable for the balance of the Angel Jet claim nor has [he] 

alleged that Angel Jet has sought reimbursement from him." Id. at *5. In his reply 

brief, Dr. Springer indicated that Angel Jet "has not sought reimbursement." Id. 

The district court concluded that Dr. Springer did not suffer a concrete injury 

sufficient for Article III standing because Dr. Springer "received air ambulance 

service[,] [the] Defendant Plan paid what they determined was covered under the 

Plan[,] [and] Angel Jet accepted that payment and has not sought reimbursement 

from [Dr. Springer]." Springer, 2017 WL 4837478, at *6. The district court also 

dismissed the case on alternative grounds by reaching the merits of the benefits 

claim and affirming the Plan's denial of benefits. Id. 
8

SUMMARY OF THE ARGUMENT

The district court erred in holding that a participant's right to have his 

benefits claim determined in accordance with the plan terms is insufficient to 

establish constitutional standing. Here, the plaintiff seeks to vindicate his right to

challenge the plan's denial of his benefits and to have his benefits claim determined 

according to the terms of the Plan in federal court. His claim that the Plan denied 

him benefits in violation of Plan terms confers a concrete, personal stake in this 

case and, therefore, constitutes an injury-in-fact to support Article III standing. 

This Court has not previously addressed whether a participant who sues a 

plan for wrongfully denying his claim for payment of medical services suffers an 

"injury in fact" if the provider of those services did not first bill the patient for any 

charges. Three circuit courts, however, have ruled that a denial of a benefits claim

in alleged violation of plan terms, by itself, constitutes a sufficient Article III injury 

even though the provider did not first bill the patient. The Fifth, Ninth, and 

Eleventh Circuits reached this conclusion in an analogous context where medical

providers sued an ERISA plan, its administrator or insurer, as a participant's 

assignee. These courts held that the assignee providers had constitutional standing 

to sue the ERISA plan, its administrator or insurer, for unpaid benefits under 

ERISA without first charging or "balance billing" patients for any unpaid medical 

services. The Eleventh Circuit ruled that the relevant injury is the plan's failure to 
9

pay for covered services at the promised rate, not whether the provider had billed 

the patient. HCA Health Servs. of Ga., Inc. v. Emp'rs Health Ins. Co., 240 F.3d 

982 (11th Cir. 2001) (overruled on other grounds by Doyle v. Liberty Life Ins. Co., 

542 F.3d 1352 (11th Cir. 2008)). The Fifth and Ninth Circuits reached the same 

conclusion in North Cypress Medical Center Operating Co. v. CIGNA Healthcare, 

781 F.3d 182 (5th Cir. 2015), and Spinedex Physical Therapy USA, Inc. v. 

UnitedHealthcare of Arizona, Inc., 770 F.3d 1282 (9th Cir. 2014). The logic of 

these decisions requires the same conclusion where, as here, a participant (rather 

than a provider-assignee) sues the plan. 

The courts agree that the relevant injury is the plan's alleged failure to pay 

for the medical services at the promised rate, not the participant's receipt of a bill 

for services. Accordingly, the Plan's alleged failure to pay the claim here in 

accordance with the plan terms is itself sufficient to establish the plaintiff's injury 

in fact required to establish Article III standing to sue for unpaid benefits without 

first receiving a direct bill for services. Moreover, not only would affirmance of 

the district court's erroneous ruling conflict in principle with the rulings of other 

circuits, it would limit ERISA participants' ability to challenge a benefits denial by 

requiring participants to first pay the medical bill or otherwise subject themselves 

to a provider's bill collection efforts. Imposing such a requirement undermines 

widely-used billing practices endorsed uniformly by the courts. Generally, 
10

providers may postpone billing patients until the provider or patient exhausts any 

rights to review the plan's denial of benefits, including filing suit in federal court.

ARGUMENT

Plaintiff Has Article III Standing To Challenge The Adjudication

Of His Benefits Claim

Federal courts have an independent duty to examine constitutional standing 

to determine whether they have jurisdiction. Ruhrgas AG v. Marathon Oil Co., 

526 U.S. 574, 583 (1999). This threshold determination, however, is independent 

from the merits of the claims. Cromwell v. Equicor-Equitable HCA Corp., 944 

F.2d 1272, 1277 (6th Cir. 1991). "When considering whether a plaintiff has 

Article III standing, a federal court must assume arguendo the merits of his or her 

legal claim." North Cypress, 781 F.3d at 191 (citation and brackets omitted). 

Without regard to the merits of Plaintiff's claim, he has an injury-in-fact that 

satisfies Article III, and a decision to the contrary would disrupt established 

nationwide billing practices. 

A. Plaintiff's "Injury-in-Fact" Satisfies Constitutional Requirements

The Supreme Court recently articulated the standing requirements a plaintiff 

must meet to establish a "case or controversy" within federal court jurisdiction 

under Article III in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016). "[T]he 

'irreducible constitutional minimum' of standing consists of three elements . . . the 

plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the 
11

challenged conduct of the defendant, and (3) that is likely to be redressed by a 

favorable judicial decision." Id. at 1547. "To establish injury in fact, a plaintiff 

must show that he or she suffered 'an invasion of a legally protected interest' that is 

'concrete and particularized' and 'actual or imminent, not conjectural or 

hypothetical.'" Id. at 1548 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 

560 (1992)). When considering "injury in fact" for claims based on the "invasion 

of a legally protected interest," the Supreme Court in Spokeo "confirmed . . . that 

intangible injuries can nevertheless be concrete" for constitutional standing 

purposes. Id. at 1549. Spokeo then stated that "[i]n determining whether an 

intangible harm constitutes injury in fact, both history and the judgment of 

Congress play important roles." Id. First, "it is instructive to consider whether an 

alleged intangible harm has a close relationship to a harm that has traditionally 

been regarded as providing a basis for a lawsuit in English or American courts." 

Id. Second, "because Congress is well positioned to identify intangible harms that 

meet minimum Article III requirements, its judgment is also instructive and 

important." Id. 

Spokeo's analysis addressed "intangible injuries" caused by statutory 

violations in contrast to violations of private rights such as contractual rights. 136 

S. Ct. at 1549 ("Congress' role in identifying and elevating intangible harms does 

not mean that a plaintiff automatically satisfies the injury-in-fact requirement 
12

whenever a statute grants a person a statutory right and purports to authorize that 

person to sue to vindicate that right."); see also Spokeo, 136 S. Ct. at 1550 

(Thomas, J., concurring) ("Common-law courts more readily entertained suits from 

private plaintiffs who alleged a violation of their own rights, in contrast to private 

plaintiffs who asserted claims vindicating public rights.").

Before Spokeo, the Fifth Circuit addressed the specific question presented in 

this appeal in North Cypress: whether a participant suffers an "injury in fact" when 

the plan fails to fully reimburse his provider as promised by the plan and the 

provider did not first bill the participant for the medical services. 781 F.3d at 192. 

Regardless of whether the claim denial is viewed as a violation of an ERISA 

statutory right to enforce the plan terms or a violation of a contractual right to 

recover promised plan benefits, the Fifth Circuit's decision and reasoning are fully 

consistent with Spokeo's focus on "harm that has traditionally been regarded as 

providing a basis for a lawsuit in English or American courts," and Congressional 

intent. 136 S. Ct. at 1549; see 29 U.S.C. § 1132(a)(1)(B). 

In North Cypress, participants assigned their benefit claims to the treating 

hospital, which challenged the determination by Cigna, the insurer, of the amounts

due under the terms of the plan. 781 F.3d at 190. Cigna argued that the provider 

had no concrete injury sufficient for Article III standing because it had never billed 

the participants for the amounts the insurer did not pay and "never intended to do 
13

so." Id. at 192. The Fifth Circuit first found that the provider, as assignee, must 

rely on the participant's injury for its standing. Id. This principle is wellestablished. The provider, as assignee, has constitutional standing to assert a 

section 502(a)(1)(B) claim based on the constitutional injury suffered by the plan 

participant, the assignor. See Sprint Commc'ns Co., L.P. v. APCC Servs., Inc., 554 

U.S. 269, 290 (2008). "[I]t is black-letter law that an assignee has the same injury 

as its assignor for purposes of Article III." Spinedex, 770 F.3d at 1291. As the 

Third Circuit stated: 

It is a basic principle of assignment law that an assignee's rights derive 

from the assignor. That is, "an assignee of a contract occupies the 

same legal position under a contract as did the original contracting 

party, he or she can acquire through the assignment no more and no 

fewer rights than the assignor had, and cannot recover under the 

assignment any more than the assignor could recover." 

CardioNet, Inc. v. Cigna Health Corp., 751 F.3d 165, 178 (3d Cir. 2014) 

(quoting 6A C.J.S. Assignments § 110). 

Examining the patient-participant's injury, the Fifth Circuit rejected Cigna's 

argument and concluded that "a patient suffers a concrete injury if money that she 

is allegedly owed contractually is not paid, regardless of whether she has directed 

the money be paid to a third party for her convenience. The patient in this 

circumstance is being denied use of funds rightfully hers." North Cypress, 781 

F.3d at 192. "From a different angle, failure to pay also denies the patient the 

benefit of her bargain. In purchasing her Cigna plan she agreed to pay for 
14

coverage at out-of-network providers like North Cypress, and Cigna is failing to

uphold the bargain by paying for covered services." Id.2

 

The Eleventh Circuit reached the same conclusion in similar circumstances. 

HCA, 240 F.3d at 991. The Eleventh Circuit noted that the purpose of the 

assignment was to permit an adjudication of benefit claims without first billing the 

patient. Id. Based on that rationale, the constitutional injury should not turn on the 

existence of a bill but rather the patient and provider's "recovery of benefits under 

the group insurance plan." Id. The Fifth Circuit also observed that the Ninth 

Circuit in Spinedex, 770 F.3d at 1288-91, "addressed the issue of standing in this 

situation head-on" and rejected the same argument that "there was no injury in fact 

to patients because they were not billed for the amount allegedly due from the 

insurance plans." North Cypress, 781 F.3d at 192 n.35. While Spinedex was less 

 2 The Fifth Circuit also agreed with a district court decision, Biomed Pharm., Inc. 

v. Oxford Health Plans (N.Y.), Inc., No. 10-CV-7427, 2011 WL 803097 (S.D.N.Y. 

Feb. 18, 2011). North Cypress, 781 F.3d at 193. In that decision, the service 

provider Biomed granted the participant a financial hardship waiver for three 

consecutive years based upon his inability to pay. Biomed, 2011 WL 803097, at 

*2. The defendant plan argued that because the patient had no obligation to pay 

Biomed after the waiver, Biomed could not show an injury in fact for its claim for 

benefits as the patient's assignee. Id. at *4. Rejecting this argument, the court 

ruled that although the plan was "free to challenge" its contractual obligation to 

pay under the plan terms, the waiver had "nothing to do with standing." Id. As the 

court explained, this argument confused a "possible" defense to the contractual 

claim "under the Plan with the requirements of standing." Id. In short, the plan 

"failed to fulfill its contractual obligations to the Patient; this is all that is required 

to demonstrate Article III standing." Id.
15

explicit in its opinion, the Ninth Circuit clearly relied on HCA to reach its decision, 

and noted that "[w]e are aware of no circuit court that has accepted defendants' 

argument" against Article III standing for the provider-assignee. 770 F.3d at 1289

(citing HCA, 240 F.3d 982, as "directly on point").3 In short, three Circuits 

rejected the defendant-insurers' similar arguments and concluded that the violation 

of the participant-patient's right to benefits as promised by the benefits plan, 

including promised payment to providers, suffices as a constitutional injury. No 

circuit court has disagreed with these rulings. 

As North Cypress recognized, this conclusion is fully consistent with longstanding case law and Congressional intent, the same touchstones later recognized 

by Spokeo for determining whether an intangible injury is "concrete." 781 F.3d at 

193-94. First, settled precedent recognizes constitutional standing to sue for a 

breach of contract, which is akin to a breach of plan terms that promised benefits,

even if some or all of the benefits accrue to another party. In North Cypress, the 

Fifth Circuit relied on United Steel, Paper & Forestry, Rubber, Manufacturing, 

Energy, Allied Industrial & Service Workers International Union, AFL-CIO/CLC 

v. Cookson America, Inc., 710 F.3d 470, 474-75 (2d Cir. 2013), which stated that 

 3 While Spinedex reached the same result, the Ninth Circuit's decision focused 

primarily on the specific facts that arise in the assignment context, the details of 

which are not relevant here. 770 F.3d at 1291 (ruling that the provider-assignee 

had Article III standing even though it had not sought payment of any shortfall 

from its patient-assignors before filing suit against the plan). 
16

"'[i]t is axiomatic that a party to an agreement has standing to sue a counter-party 

who breaches that agreement, even where some or all of the benefits of that 

contract accrue to a third party.'" Id. at 475 (citation omitted); see also Katz v. 

Pershing, LLC, 672 F.3d 64, 72 (1st Cir. 2012) (by "alleg[ing] the existence of a 

contract, express or implied, and a concomitant breach of that contract, [the 

plaintiff's] complaint adequately show[ed] an injury to her rights" for purposes of 

standing, even though she was not a party to the contracts in question and could 

not survive a motion to dismiss under Rule 12(b)(6)). Similarly, this Court 

recognized a violation of a contractual right as sufficient "injury-in-fact." See

Linton by Arnold v. Comm'r of Health and Env't, State of Tenn., 973 F.2d 1311, 

1317 (6th Cir. 1992). As the Eleventh Circuit recognized, "the breach of a contract 

has long been held to be among the types of injuries that confer standing to sue." 

E.A. Renfroe & Co., Inc. v. Moran, 249 F. App'x 88, 91 (11th Cir. Aug. 24, 2007) 

(unpublished). As an example of this long-standing principle, the Eleventh Circuit 

cited, id., the Supreme Court's decision in Tennessee Electric Power Co. v. 

Tennessee Valley Authority, 306 U.S. 118, 137-38 (1939), which held that 

"standing is available where 'the right invaded is a legal right, — one of property, 

one arising out of [a] contract, one protected against tortious invasion, or one 

founded on a statute which confers a privilege[.]'" Accord Kuhns v. Scottrade, 

Inc., 868 F.3d 711, 716 (8th Cir. 2017) ("'a party to a breached contract has a 
17

judicially cognizable interest for standing purposes, regardless of the merits of the 

breach alleged.'") (quoting Carlsen v. GameStop, Inc., 833 F.3d 903, 908 (8th Cir. 

2016)); L-3 Commc'ns Corp. v. Serco, Inc., 673 F. App'x 284, 289 (4th Cir. 2016) 

(unpublished); In re Thorpe Insulation Co., 677 F.3d 869, 887 (9th Cir. 2012); 

Katz, 672 F.3d at 72; Castro Convertible Corp. v. Castro, 596 F.2d 123, 124 n.3 

(5th Cir. 1979); see also Spokeo, 136 S.Ct. at 1551 (Thomas, J., concurring) 

(discussing long-standing principles). Consistent with North Cypress, the Seventh 

Circuit applied these principles in finding constitutional standing for a suit alleging 

an ERISA violation because the violation deprived plan participants the benefit of 

their contractual bargain as promised in the plan. See Johnson v. Allsteel, Inc., 259 

F.3d 885, 887-88 (7th Cir. 2001). 

Second, North Cypress' definition of the relevant injury as the participant's 

loss of a contractual right to benefits is consistent with the Congressional intent 

underlying ERISA's protections. "ERISA's principal function [is] to 'protect 

contractually defined benefits.'" McCutchen, 569 U.S. at 100-01 (quoting Mass. 

Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 148 (1985)); see also M & G Polymers 

USA, LLC v. Tackett, 135 S. Ct. 926, 933 (2015) (interpreting plan terms in 

accordance with contract law principles). ERISA section 502(a)(1)(B) specifically 

empowers a participant or beneficiary "to bring a civil action . . . (B) to recover 

benefits due to him under the terms of his plan, to enforce his rights under the 
18

terms of the plan, or to clarify his rights to future benefits under the terms of the 

plan." 29 U.S.C. § 1132(a)(1)(B). Absent ERISA's protections, claim denials that

violate plan terms are likely treated as state contractual claims. See Turner v. 

Fallon Cmty. Health Plan, Inc., 127 F.3d 196, 199 (1st Cir. 1997) ("Absent 

[ERISA] preemption, a health benefits plan like Fallon's could certainly be treated 

as a contract enforceable under state law"). "Congress's creation of this cause of 

action has given patients a right to enforce the insurance coverage they contracted 

for. They were given a right to recompense for an actual injury and have standing 

to pursue alleged breaches of this statutory duty." North Cypress, 781 F.3d at 194. 

In discussing equitable remedies under ERISA, the Supreme Court recognized in 

CIGNA v. Amara, 563 U.S. 421, 444 (2011), that "actual harm . . . might also 

come from the loss of a right protected by ERISA or its trust-law antecedents." 

The loss of a contractual right to benefits protected by ERISA is by no means 

abstract, but rather an actual financial loss of a promised payment to a provider for 

services rendered. 

Whether or not a participant is directly billed for the costs is irrelevant to the 

injury. Nonetheless, even though the breach of a contractual right itself is the 

injury, as the Second Circuit has noted, in circumstances where it is unclear 

whether the provider "can seek full reimbursement directly from patients . . . 

patients are likely to be held liable for the services they receive — indeed, it does 
19

not take a stretch of the imagination to expect that a patient who receives medical 

care will be required to pay for it." Montefiore Med. Ctr. v. Teamsters Local 272, 

642 F.3d 321, 330 (2d Cir. 2011). Here, it requires no imagination to expect Dr. 

Springer will ultimately be compelled to pay some, if not all of, the cost of the 

provider's services rendered on his behalf. By receiving the services, Dr. Springer

clearly incurred the charges, even though Angel Air directly billed the plan 

responsible for the participant's medical benefits and not the participant. Springer, 

2017 WL 4837478, at *1-*2. The Plan accepted and processed the bill as part of a 

valid claim: the administrator accepted the "billed" charge for Angel Jet's services 

as totaling $340,100, and the Plan paid about 10% of that billed charge. Id. at *1-

*2. The participant alleges the Plan promised to pay the full amount, and the 

participant now seeks payment for the rest. The defendant's alleged failure to 

abide by the Plan's contractual obligation is a sufficiently concrete violation of a 

contractual right and thus "injury in fact." 

B. Affirmance Would Disrupt Established Billing Practices

Providers, as assignees of participants, have Article III standing to sue 

without first billing the participants for services rendered in the Fifth, Ninth, and 

Eleventh Circuits. A contrary result in this case will not only create a split in 

principle with three circuits, but also undermine this well-established and 
20

beneficial practice that allows providers to avoid billing patients before the 

insurers' coverage is finally determined. 

In cases not addressing constitutional standing, many circuit decisions 

confirm that the provider can seek, as the participant's assignee, an adjudication of 

a patient's claim in district court under ERISA section 502(a)(1)(B), 29 U.S.C. § 

1132(a)(1)(B), even before the provider bills the participant. E.g., CardioNet, Inc., 

751 F.3d at 178-79; Misic v. Bldg. Serv. Emps. Health and Welfare Tr., 789 F.2d 

1374, 1377 (9th Cir. 1986) (approving the use of assignments because they 

"eliminat[e] the necessity for beneficiaries to pay potentially large medical bills 

and await compensation from the plan"); Cagle v. Bruner, 112 F.3d 1510, 1515 

(11th Cir. 1997) ("If provider-assignees cannot sue the ERISA plan for payment, 

they will bill the participant or beneficiary directly for the insured medical bills, 

and the participant or beneficiary will be required to bring suit against the benefit 

plan when claims go unpaid."); see also Kennedy v. Conn. Gen. Life Ins. Co., 924 

F.2d 698, 700 (7th Cir. 1991) (treating the failure to bill participant as a question of 

merits, not jurisdiction).

4

 As the Fifth Circuit stated: 

 4 Without directly addressing whether providers can sue as assignees without first 

billing the participant, other courts, including this Court, uniformly endorse the 

general principle that providers can assert claims under ERISA section 

502(a)(1)(B) as the participant's assignee. See Brown v. BlueCross BlueShield of 

Tenn., Inc., 827 F.3d 543, 546 (6th Cir. 2016) ("there is now a broad consensus

that 'when a patient assigns payment of insurance benefits to a healthcare provider, 

that provider gains standing to sue for that payment under ERISA § 502(a)'") 
21

Many providers seek assignments of benefits to avoid billing the 

beneficiary directly and upsetting his finances and to reduce the risk 

of non-payment. If their status as assignees does not entitle them to 

federal standing against the plan, providers would either have to rely 

on the beneficiary to maintain an ERISA suit, or they would have to 

sue the beneficiary. Either alternative, indirect and uncertain as they 

are, would discourage providers from becoming assignees and 

possibly from helping beneficiaries who were unable to pay them 

"upfront."

Hermann Hosp. v. MEBA Med. & Benefits Plan, 845 F.2d 1286, 1289 n.13 (5th 

Cir. 1988), abrogated on other grounds by Access Mediquip, L.C.C. v. 

UnitedHealthcare Ins. Co., 698 F.3d 229 (5th Cir. 2012). 

None of these cases question the providers' ability to sue as assignees before 

billing patients for their services. The established rationale for assignments in 

ERISA benefits law is to avoid circumstances where patients seeking medical care 

from providers must be billed or be subject to collection before the provider, as the 

patient's assignee, can file a claim with the plan and in federal court to determine 

coverage. The same rationale applies when the participant sues the plan in court.

5

 

 

(quoting North Jersey Brain & Spine Ctr. v. Aetna, Inc., 801 F.3d 369, 377 (3d Cir. 

2015)); I.V. Servs. of Am., Inc. v. Trs. of Am. Consulting Eng'rs Council Ins. Tr. 

Fund, 136 F.3d 114, 117 (2d Cir. 1998); Lutheran Med. Ctr. of Omaha, Neb. v. 

Contractors, Laborers, Teamsters & Eng'rs Health & Welfare Plan, 25 F.3d 616, 

618-19 (8th Cir. 1994) (abrogated on other grounds by Martin v. Ark. Blue Cross 

& Blue Shield, 299 F.3d 966 (8th Cir. 2002)); I.V. Servs. of Am. v. Inn Dev. & 

Mgmt., 182 F.3d 51, 54 n.3 (1st Cir. 1999).

5 In many circumstances, the patient either does not provide an assignment or is 

barred from making an assignment because of the plan's anti-assignment clause. 
22

Because the participant has the same rights to sue as the provider-assignee, e.g., 

CardioNet, 751 F.3d at 178-79, the participant should also be able to file for 

judicial review without any prior billing from provider to patient. Either way, both 

providers and patients benefit from a determination of the plan's coverage amounts 

before a final bill is issued.6

 Providers benefit because they can postpone billing 

participants directly until after the participants sue for judicial review to avoid 

"upsetting [the participants'] finances and to reduce the risk of non-payment." 

Hermann Hosp., 845 F.2d at 1289 n.13. Providers can also avoid premature 

collection costs and wait until the claims denial is upheld in court. Reversing the 

district court will support this well-established practice and ensures uniformity in 

the treatment of assignments and related billing practices for ERISA plans. Cf.

 

E.g., Riverview Health Inst. LLC v. Med. Mut. of Ohio, 601 F.3d 505, 520 (6th 

Cir. 2010). 

6 Some employee benefit plans may require a provider to submit evidence of the 

amount it charged the participant before deciding how much to pay the provider. 

E.g., Krauss v. Oxford Health Plans, Inc., 517 F.3d 614, 619-20 (2d Cir. 2008). 

Other plans may permit an out-of-network provider to directly bill the plan. E.g., 

Kennedy, 924 F.2d at 701. During the claims adjudication process, a plan 

administrator may also request documentation or evidence of the amount of 

services rendered. See, e.g., 29 C.F.R. § 2560.503-1(g)(1)(iii) (regulation that 

governs claims processing in ERISA plans issued pursuant to 29 U.S.C. § 1133). 

Neither the regulation that governs claims procedures nor ERISA itself, however, 

require a participant to receive a bill for payment before filing a claim. A plan 

sponsor's or plan administrator's decision to require a submission of a bill is a 

matter of plan design or claims administration, but not a question of constitutional 

dimensions. 
23

North Jersey Brain & Spine Ctr. v. Aetna, Inc., 801 F.3d 369, 374 (3d Cir. 2015)

(noting "the public interest in uniform interpretation of ERISA" with respect to the 

treatment of assignments).

C. The District Court's Opinion Misreads Precedent And Is Inconsistent 

With The Claims Regulation

The district court's conclusion that a direct bill from the provider to the 

participant is necessary for constitutional standing conflicts in principle with three 

circuit decisions. The district court did not address those three decisions or 

provide a basis for this Court to create a circuit split. Instead, the district court 

relied on Soehnlen v. Fleet Owners Insurance Fund, 844 F.3d 576, 582-83 (6th Cir. 

2016), but this decision is easily distinguishable. In Soehnlen, the plaintiffs 

"allege[d] that by failing to comply with the ACA provisions enjoining annual and 

life-time limitations on benefits, Defendants violated their ERISA rights." 844 

F.3d at 580. The plaintiffs also alleged that other participants may suffer harm 

from non-compliance but never argued how the individual plaintiffs themselves 

suffered any harm from non-compliance. Id. at 582. For example, the plaintiffs 

did not assert that they personally exercised any right under the plan that would be 

impeded by the non-compliant provisions. Id. (noting allegations that "certain 

members of their class suffer from conditions that have previously required 

medical expenses in excess of the benefit caps imposed by the Plan" but the 

absence of allegations of harm to named plaintiffs). Instead, the plaintiffs' reliance 
24

on a bare allegation that the plan was non-compliant failed to establish an "injuryin-fact." Id. Here, unlike Soehnlen, the plaintiff identifies the denial of his 

individual claim for benefits under the plan as the injury; the plaintiff has thus 

shown, unlike in Soehlen, that a "specific right owed to [him] was infringed." Id.

at 585. 

Finally, the district court's point that no injury exists because Angel Jet 

accepted the Plan's partial payment of the billed charge is legally and factually

erroneous. Under the Secretary's claims regulation, which governs claims 

processing in ERISA plans, see 29 U.S.C. § 1133, a participant (or a providerassignee) can challenge an underpayment; accepting a partial payment does not 

preclude a participant or his assignee from claiming that the plan promised more. 

See 29 C.F.R. § 2560.503-1(m)(4)(1) (defining an "adverse benefit determination" 

as "[a] denial, reduction, or termination of, or a failure to provide or make payment 

(in whole or in part) for, a benefit . . .") (emphasis added). Moreover, as a factual 

matter, Angel Jet challenged the payment amount as a purported assignee, clearly 

indicating that it was not satisfied with payment of about 10% of its bill. See

Angel Jet Servs., LLC, 34 F. Supp. 3d at 781-82.
25

CONCLUSION

For the foregoing reasons, the Secretary respectfully requests that this Court 

reverse the district court's ruling that the plaintiff lacked standing to challenge the 

Plan's benefits decision. 

Respectfully submitted, 

KATE S. O'SCANNLAIN

Solicitor of Labor 

G. WILLIAM SCOTT

Associate Solicitor 

for Plan Benefits Security

THOMAS TSO

Counsel for Appellate

and Special Litigation 

/s/ Marcia E. BoveMARCIA BOVE

Senior Trial Attorney 

United States Department of Labor 

Office of the Solicitor 

Plans Benefits Security Division 

P.O. Box 1914

Washington, DC 20013

(202) 693-5598

 
 CERTIFICATE OF COMPLIANCE

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

this amicus contains 6,193 words. 

Dated: January 19, 2018 /s/ Marcia E. Bove

Marcia E. Bove

Senior Trial Attorney 

United States Department of Labor 

Office of the Solicitor

Plan Benefits Security Division 

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

Washington, D.C. 20210 

CERTIFICATE OF SERVICE

I hereby certify that on this day, January 19, 2018, 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 Sixth 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/ Marcia E. Bove

Marcia E. Bove

Senior Trial Attorney 

United States Department of Labor 

Plan Benefits Security Division 

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

Washington, D.C. 20210