Nos. 18-2784, 18-2790

UNITED STATES COURT OF APPEALS 

FOR THE EIGHTH CIRCUIT

IVAN MITCHELL, et al.,

Plaintiff-Appellants / Cross-Appellees,

v.

BLUE CROSS BLUE SHIELD OF 

NORTH DAKOTA, et al.,

Defendant-Appellees / Cross-Appellants.

On Appeal from the United States District Court for the 

District of North Dakota

BRIEF FOR THE SECRETARY OF LABOR AS AMICUS CURIAE IN 

SUPPORT OF PLAINTIFF-APPELLANTS / CROSS-APPELLEES

KATE S. O'SCANNLAIN

Solicitor of Labor

G. WILLIAM SCOTT 

Associate Solicitor 

 for Plan Benefits Security

THOMAS TSO

Counsel for Appellate 

 and Special Litigation

CHRISTINE D. HAN

Trial Attorney

Office of the Solicitor

Plan Benefits Security Division

U.S. Department of Labor

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

Washington, D.C. 20210

(202) 693-5765
i

TABLE OF CONTENTS

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

QUESTIONS PRESENTED .....................................................................................1

STATEMENT OF IDENTITY, INTEREST, AND AUTHORITY TO FILE..........2

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

I. Facts............................................................................................................3

II. Proceedings Below.....................................................................................5

SUMMARY OF THE ARGUMENT........................................................................6

ARGUMENT.............................................................................................................9

I. The Mitchells Have Constitutional Standing To Dispute Blue Cross's 

Denial of Benefits.......................................................................................9

A. Four Circuits Agree That Participants Have Article III Standing 

To Challenge Benefits Denials Even If They Are Not Billed ........10

B. The Four Circuits' Analysis Comports With Spokeo......................15

C. The July 2015 Agreement Does Not Distinguish This Case 

From The Other Circuit Decisions..................................................18

1. The Agreement Did Not Assign The Mitchells' Right To Sue..18

2. The Agreement Did Not Eliminate The Mitchells' Personal Stake 

In The Outcome Of This Case ...................................................19

II. The Mitchells Have "Statutory Standing" To Bring An Action Under 

ERISA Section 502(a)(1)(B)....................................................................21
ii

TABLE OF CONTENTS-(continued):

A. As a former employee, Mr. Mitchell meets the statutory definition 

of "participant" under ERISA to recover benefits under the Plan ..22

B. The Mitchells have a colorable claim to benefits to establish 

statutory standing under ERISA section 502(a)(1)(B) ...................25

CONCLUSION........................................................................................................26

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE
iii

TABLE OF AUTHORITIES

Federal Cases:

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

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

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

827 F.3d 543 (6th Cir. 2016)................................................................................... 12

Carlsen v. GameStop, Inc.,

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

CIGNA v. Amara,

563 U.S. 421 (2011) ................................................................................................ 16

Curtis-Wright Corp. v. Schoonejongen,

514 U.S. 73 (1995) .................................................................................................. 24

DiCarlo v. St. Mary Hosp.,

530 F.3d 255 (3d Cir. 2008).................................................................................... 17

Donovan v. Cunningham,

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

Evans v. Akers,

534 F.3d 65 (1st Cir. 2008) ............................................................................... 24, 25

Firestone Tire & Rubber Co. v. Bruch,

489 U.S. 101 (1989) .................................................................................... 22, 23, 25

Graden v. Conexant Sys. Inc.,

496 F.3d 291 (3d Cir. 2007).............................................................................. 24, 25

Grasso Enters., LLC v. Express Scripts, Inc.,

809 F.3d 1033 (8th Cir. 2016)................................................................................. 26

Harzewski v. Guidant Corp.,

489 F.3d 799 (7th Cir. 2007)............................................................................... 8, 23

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

240 F.3d 982 (11th Cir. 2001)..................................................................... 11, 13, 14
iv

Federal Cases-(continued):

In re Mut. Funds Inv. Litig.,

529 F.3d 207 (4th Cir. 2008)............................................................................. 24, 25

Inter-Modal Rail Emps. Ass'n v. Atchison, Topeka & Santa Fe Ry.,

520 U.S. 510 (1997) ................................................................................................ 24

Johnson v. Allsteel, Inc.,

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

Katz v. Pershing, LLC,

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

Kuhns v. Scottrade, Inc.,

868 F.3d 711 (8th Cir. 2017)................................................................................... 17

LaRue v. DeWolff, Boberg & Assocs., Inc.,

552 U.S. 248 (2008) ....................................................................................... 8, 23 24

Lujan v. Defs. of Wildlife,

504 U.S. 555 (1992) .................................................................................................. 9

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

473 U.S. 134 (1985) ................................................................................................ 16

Mitchell v. Blue Cross Blue Shield of N. Dakota,

No: 2:15-cv-00086-LLP-ARS, 2018 WL 3463260 (D.N.D July 18, 2018) .... passim

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

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

Panaras v. Liquid Carbonic Indus. Corp.,

74 F.3d 786 (7th Cir. 1996)..................................................................................... 25

Peterson v. UnitedHealth Grp. Inc., 

No. 17-1744, 2019 WL 190929 (8th Cir. Jan. 15, 2019) ....................................... 12

Poore v. Simpson Paper Co.,

566 F.3d 922 (9th Cir. 2009)............................................................................. 23, 24
v

Federal Cases-(continued):

Spinedex Physical Therapy USA, Inc. v. United Healthcare of Ariz., Inc.,

770 F.3d 1282 (9th Cir. 2014)..................................................................... 11, 12, 13

Spokeo, Inc. v. Robins,

136 S. Ct. 1540 (2016)...................................................................................... passim

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

900 F.3d 284 (6th Cir. 2018)............................................................................ passim

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

554 U.S. 269 (2008) .................................................................................... 12, 18, 19

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

569 U.S. 88 (2013) .................................................................................................. 16

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

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

710 F.3d 470 (2d Cir. 2013).............................................................................. 16, 17

Vaughn v. Bay Envtl. Mgmt., Inc.,

567 F.3d 1021 (9th Cir. 2009)........................................................................... 24, 25

Federal Statutes:

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

Section 3(7), 29 U.S.C. § 1002(7)................................................................. 8, 22, 23

Section 502, 29 U.S.C. § 1132 ............................................................................ 2, 24

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

Section 502(a)(2), 29 U.S.C. § 1132(a)(2)........................................................ 24, 25

Section 505, 29 U.S.C. § 1135 .................................................................................. 2

Section 510, 29 U.S.C. § 1140 ................................................................................ 24

Miscellaneous:

Fed. R. App. P. 29(a).................................................................................................... 2
QUESTIONS PRESENTED

Ivan Mitchell is a former employee of the Towner County Medical Center and 

a participant in its Health Reimbursement Plan ("Plan"), which was insured and 

administered by Defendant Blue Cross Blue Shield of North Dakota ("Blue Cross"). 

Melissa Mitchell, his spouse, is a beneficiary of the Plan. She had a cardiac 

emergency and was transported from Towner County Medical Center to another 

facility by air ambulance. Blue Cross denied the Mitchells' claim for full payment of 

the cost of the air transport but paid a portion of it. After Ivan Mitchell left his 

employment at the medical center, the Mitchells filed suit against the Plan and Blue 

Cross under the Employee Retirement Income Security Act of 1974 ("ERISA") as 

amended, 29 U.S.C. § 1001, et. seq., contesting Blue Cross's decision. Blue Cross 

asserted that the Mitchells did not have constitutional standing because the air 

transport provider did not require the Mitchells to pay the remainder of the air 

ambulance bill and, therefore, they did not suffer an injury sufficient to confer 

Article III standing. Blue Cross also contended that they lacked statutory standing to 

sue under ERISA because Ivan Mitchell left his employment at the medical center 

before they sued. The court rejected Blue Cross's arguments, concluding that the 

Mitchells met their burden of establishing constitutional and statutory standing, but 

largely denied their claim on the merits. The Secretary of Labor's brief addresses the 

following issues:
2

1. Whether a participant or his beneficiary in an ERISA-covered plan who 

sues the plan for wrongfully denying his claim for full payment of 

medical services suffered an "injury in fact" that confers constitutional 

standing where the medical provider did not require the participant or 

beneficiary to pay the amount the plan refused to pay. 

2. Whether a former employee or his beneficiary in an ERISA-covered 

plan who has a colorable claim to benefits the plan denied has statutory 

standing as a plan participant or beneficiary to bring an action under 

ERISA section 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B), to challenge 

the plan's decision.

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 ensure fair and impartial plan administration and 

compliance with ERISA's requirements and purposes. See 29 U.S.C. §§ 1132, 1135; 

Donovan v. Cunningham, 716 F.2d 1455, 1462-63 (5th Cir. 1983). The Secretary 

has an interest upholding the district court's rulings on both questions presented,

which this Court has never addressed.

The Secretary files this brief pursuant to Federal Rule of Appellate Procedure 

29(a).
3

STATEMENT OF THE CASE

I. Facts

Ivan Mitchell was an employee of Towner County Medical Center in Cando, 

North Dakota. See Pl.'s Opening Br. for J. on the Administrative R. ("Opening Br.") 

at 6-7.1 Mr. Mitchell elected coverage for himself and his spouse, Melissa Mitchell, 

under the Towner County Medical Center – Health Reimbursement Plan ("Plan"), an 

ERISA-covered health benefit plan administered by Blue Cross. Mitchell v. Blue 

Cross Blue Shield of N. Dakota, No: 2:15-cv-00086-LLP-ARS, 2018 WL 3463260, 

at *1 (D.N.D. July 18, 2018). Blue Cross made eligibility and benefit coverage 

determinations on behalf of the Plan. Id.

On January 15, 2014, Ms. Mitchell was in cardiac distress and sought 

emergency care at Towner County Medical Center. Mitchell, 2018 WL 3463260, at 

*1; Opening Br. at 6. Upon examination, her physician determined it medically 

necessary to transport her to a facility that could provide a higher level of care. 

Mitchell, 2018 WL 3463260, at *1. Due to the inclement weather and medical 

urgency, Ms. Mitchell was transported by a "fully staffed multi-million-dollar 

advanced life support fixed wing aircraft" by Valley Med Flight, Inc. ("VMF"), an 

out-of-network provider. Id. Blue Cross does not dispute that the transfer by air 

ambulance was medically necessary. Id. VFM initially billed Ms. Mitchell $33,200 

 

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

for its air ambulance services. Mitchell, 2018 WL 3463260, at *1. Blue Cross paid a 

total of $6759.98, leaving the Mitchells to cover the remaining $26,440.02. Id.

The Plan covers medically necessary and appropriate ambulance services that 

are not "excessive in comparison with alternative services." Mitchell, 2018 WL 

3463260, at *10. If the ambulance service provider does not participate in Blue 

Cross's network, the Plan pays 80% of what Blue Cross determines to be the 

"Allowed Charge." Id. The Plan itself does not explain how Blue Cross determines 

the Allowed Charge, other than to state that it is reduced by the amount the 

participant is responsible for in coinsurance payments and annual deductible 

amounts. Id. at *9, 10. Pursuant to Blue Cross's internal policy, it determined that 

the Allowable Charge was 150% of the 2013 Medicare rural air ambulance rates. Id.

at *10. Blue Cross then paid VMF 80% of that amount after adjusting for the 

Mitchells' obligations to pay the coinsurance and deductible amounts, which was 

$6759.98. Id. at *12. 

On April 21, 2014, VMF contacted Blue Cross requesting additional payment. 

Mitchell, 2018 WL 3463260, at *2. Mr. Mitchell also challenged the partial 

payment. Id. On May 27, 2014, VMF received a letter from Blue Cross stating that 

the claim was processed correctly. Id. On June 13, 2014, Mr. Mitchell received a 

letter from Blue Cross stating its final determination that because the claim was 

processed correctly, Blue Cross would not make additional payment on the claim. 
5

Id. 

On July 30, 2015, the Mitchells entered into an agreement with VMF ("July 

2015 Agreement") whereby VMF agreed to pay for costs and attorney fees for any

suit the Mitchells filed against Blue Cross to seek payment of their benefits. 

Mitchell, 2018 WL 3463260, at *2. The July 2015 Agreement provides that any 

recovery of money by the Mitchells from litigation will be disbursed as follows: first, 

to repay VMF for all costs and attorney fees paid or owed in this matter; second, to 

satisfy outstanding invoices to VMF; and third, to split the remainder by allotting 

70% to VMF and 30% to the Mitchells. Id. The July 2015 Agreement also states 

that following the lawsuit, VMF will "waive all other claims it has against the 

[Mitchells] and limit any liability of the [Mitchells] to [VMF] to the amount 

recovered in [the] lawsuit." Id.

II. Proceedings Below

On September 2, 2015, the Mitchells filed suit against Blue Cross under

ERISA section 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B), "to enforce [their] rights 

under the terms of the plan." Mitchell, 2018 WL 3463260, at *2. 

The Mitchells and Blue Cross filed cross-motions for summary judgment, in 

which the Mitchells argued that their cost-sharing obligations should be limited to 

their coinsurance liability and that Blue Cross must pay the remainder of the claim. 

Mitchell, 2018 WL 3463260, at *1. Blue Cross's motion defended the merits of its 
6

decision and challenged the Mitchells' Article III standing, arguing that they did not 

suffer any injury in fact because the July 2015 Agreement relieved them from any 

requirement to pay VMF's fees out of their own pockets. Id.; Def. Opp'n. to Pl. Mot. 

Summ. J. ("Def. Opp'n.") at 22-23. Blue Cross also argued that the Mitchells lacked 

statutory standing because Ivan Mitchell is a former employee and no longer 

participates in the plan. See Def. Opp'n. at 29-30. 

The district court held that the Mitchells had constitutional standing because 

they suffered a concrete injury when Blue Cross deprived them of benefits allegedly 

owed under the Plan – full payment of VMF's bill – regardless of VMF's decision not 

to pursue its legal rights to collect the remaining balance on the bill from the 

Mitchells through balance billing. Mitchell, 2018 WL 3463260, at *6. Because the 

Mitchells showed that they have a "colorable claim to benefits which the employer 

promised to provide," the court found that they had established statutory standing. 

Id. at *8. On the merits, the court affirmed Blue Cross's denial of the claim for full 

reimbursement of VMF. Id. at *15-16.

SUMMARY OF THE ARGUMENT

1. A denial of a participant's or beneficiary's right to have a benefits claim 

determined in accordance with plan terms is an injury sufficient to establish 

constitutional standing. The Mitchells suffered an injury in fact when Blue Cross 

denied benefits they contend were promised by the Plan by failing to fully reimburse 
7

their medical service provider. Under Spokeo v. Robbins, 136 S. Ct. 1540 (2016), 

when considering whether an injury is sufficiently "concrete" for Article III 

purposes, a court examines analogous harms in "history and the judgment of 

Congress." Here, the Mitchells allege a breach of the terms of their employee health 

plan and a deprivation of promised benefits payable to their service provider. A 

breach of a promise in a plan is analogous to a breach of contract, and courts have 

always considered breaches of contractual promises to constitute Article III injuries. 

Moreover, Congress designed ERISA causes of actions to protect contractuallydefined plan benefits. Based on Congressional intent and historical analogy to

breaches of contract, the Mitchells' injury constitute concrete "injuries in fact" under 

Article III. 

Four circuit courts of appeal agree that a denial of a benefits claim in alleged 

violation of plan terms, by itself, constitutes a sufficient Article III injury. The Fifth, 

Sixth, Ninth, and Eleventh Circuits all reached the same conclusion in analogous 

contexts. No circuits disagree. 

Blue Cross attempts to distinguish this case based on the Mitchells' agreement 

to pay their provider the proceeds of this litigation in exchange for the provider 

releasing the Mitchells from any further financial obligation to pay for services 

rendered. Whether the Mitchells assigned the proceeds of this litigation (but not their 

underlying claim) to another party is irrelevant to their injury in fact: Blue Cross's 
8

denial of promised benefits. The four circuits all rejected similar arguments because 

the relevant injury is the plan's failure to pay for covered services at the promised 

rate. That injury is not eliminated if the provider decides not to balance bill the 

patient for the amount the plan did not pay. The district court's ruling should be 

affirmed. 

2. The Mitchells have a colorable claim for benefits under their Plan, which 

gives them statutory standing to bring an action under ERISA section 502(a)(1)(B). 

ERISA section 502(a)(1)(B) empowers a plan "participant" or "beneficiary" to sue 

"to recover benefits due 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." 29 

U.S.C. § 1132(a)(1)(B). The Supreme Court in LaRue v. DeWolff, Boberg & 

Assocs., Inc., 552 U.S. 248 (2008), stated that an ERISA "participant," as defined by 

29 U.S.C. § 1002(7), "may include a former employee with a colorable claim for 

benefits." Id. at 256 n.6 (citing Harzewski v. Guidant Corp., 489 F.3d 799 (7th Cir. 

2007)). As a former employee and his beneficiary, the Mitchells need only show that 

they have a "colorable claim for benefits." Because the Mitchells made a colorable 

argument that Blue Cross interpreted the Plan terms to deprive them of rights 

promised to them under the Plan, they established statutory standing to bring an 

action under ERISA section 502(a)(1)(B).
9

ARGUMENT

I. The Mitchells Have Constitutional Standing To Dispute Blue Cross's 

Denial Of Benefits

The Supreme Court recently restated the requirements for Article III standing. 

Spokeo, 136 S. Ct. at 1540. "[T]he 'irreducible constitutional minimum' of standing 

consists of three elements . . . . [T]he plaintiff must have (1) suffered an injury in 

fact, (2) that is fairly traceable to the 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.'" Spokeo, 136 S. Ct. at 1548 (quoting Lujan v. Defs. 

of Wildlife, 504 U.S. 555, 560 (1992)). 

In Spokeo, the Supreme Court "confirmed . . . that intangible injuries [to a 

legally protected right] can nevertheless be concrete" for constitutional standing 

purposes. 136 S. Ct. at 1549. I"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." 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 specifically addressed "intangible 
10

injuries" caused by statutory violations in contrast to violations of private rights, 

including 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 whenever a statute grants a person a statutory right and 

purports to authorize that person to sue to vindicate that right."); see also id. 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.").

Here, Blue Cross argues that the Mitchells did not suffer an Article III "injury" 

because the agreement between the provider and the Mitchells extinguishes their 

liability. See Principal and Responding Br. of Appellee ("Appellee Br.") 46-47.

According to Blue Cross, under the July 2015 Agreement, the Mitchells will never 

pay VMF from their own funds; therefore, it argues, the Mitchells cannot suffer outof-pocket losses and cannot establish an injury sufficient for Article III standing. See

id. at 42. Blue Cross is wrong, and four circuits have rejected similar arguments. 

A. Four Circuits Agree That Participants Have Article III Standing To 

Challenge Benefits Denials Even If They Are Not Billed

Recently, the Sixth Circuit addressed the same constitutional standing question 

where the insurer argued that the participant did not suffer an injury because he was 

not billed for medical services and did not allege any out-of-pocket loss. Springer, 

900 F.3d at 287 (holding that a participant need not suffer financial loss to establish 
11

constitutional standing because his concrete injury "stemmed from traditional 

principles of contract law that did not depend on financial harm"). Similar to this 

case, the plaintiff in Springer had purchased a health plan that said it would pay all 

transportation costs. Id. Upon receiving a bill for services rendered, the plan only 

paid ten percent of the bill. Id. Therefore, the participant "suffered an injury within 

the meaning of Article III because he was denied health benefits he was allegedly 

owed under the plan." Id. 

In Springer, the Sixth Circuit followed the reasoning of three other circuit 

court decisions which held that a healthcare provider – to whom the plan participant 

assigned his benefit claim – has standing to challenge the insurer's denial of a benefit 

due to the participant even though the provider had not billed the participant. See N. 

Cypress Med. Ctr. Operating Co. v. CIGNA Healthcare, 781 F.3d 182 (5th Cir. 

2015); Spinedex Physical Therapy USA, Inc. v. United Healthcare of Ariz., Inc., 770 

F.3d 1282 (9th Cir. 2014); HCA Health Servs. of Ga., Inc. v. Emp'rs Health Ins. Co., 

240 F.3d 982 (11th Cir. 2001). 

The Fifth Circuit addressed the specific question presented in this appeal in 

North Cypress. The insurer there argued that the healthcare provider had not 

suffered a concrete injury sufficient for Article III standing because the provider 

never billed the participants for the amounts the insurer did not pay and the provider 

"never intended to do so." N. Cypress, 781 F.3d at 192. The Fifth Circuit found that 
12

as the participant's assignee, the provider had standing based on the participant's 

injury. Id. "It is well established that a healthcare provider, though not a statutorily 

designed ERISA beneficiary, may obtain standing to sue derivatively to enforce an 

ERISA plan beneficiary's claim." Id. at 191 (internal citations omitted). This 

holding follows the well-established principle that a provider, as an 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); Peterson v. 

UnitedHealth Grp. Inc., No. 17-1744, 2019 WL 190929, at *4 (8th Cir. Jan. 15, 

2019) (a healthcare provider had standing to sue under section 502(a)(1)(B) based on 

an assignment from a plan beneficiary); Brown v. BlueCross BlueShield of Tenn., 

Inc., 827 F.3d 543, 546 (6th Cir. 2016). "[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 (9th Cir. 2014). 

The Fifth Circuit rejected the insurer's argument because its assignor, the 

participant, "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." N. Cypress, 781 F.3d at 192. "From a different 

angle, failure to pay also denies the [participant] the benefit of her bargain. In 

purchasing her [ERISA-covered] plan she agreed to pay for coverage at out-of-
13

network providers like North Cypress, and [the insurer] is failing to uphold the 

bargain by paying for covered services." Id.

The other circuit courts that have addressed this issue uniformly concluded 

that the violation of the patient's right to benefits as promised by the plan, including 

promised payment to providers, suffices as a constitutional injury. The Eleventh 

Circuit noted that the basis for the assignee-assignor relationship was to permit an 

adjudication of benefits without the provider first billing the patient, and based on 

this 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." HCA, 240 F.3d at 991. The Ninth Circuit also reached a similar result in 

Spinedex, 770 F.3d at 1291, where 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. Spinedex, 770 F.3d at 1289, relied on HCA Health 

Services 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 providerassignee. Id. (citing HCA, 240 F.3d 982, as "directly on point"). No circuit court has 

disagreed with these rulings.

As discussed in these cases, whether a provider decided to seek payment for 

services from a plan participant or whether the participant actually paid is irrelevant 

to the injury that the participant suffers from the deprivation of benefits owed under 
14

the plan. See Springer, 900 F.3d at 288 (finding that a plan participant suffers a 

concrete injury sufficient for Article III standing when alleging a specific contractual 

right owed to him and his beneficiary); HCA, 240 F.3d at 991. The Fifth Circuit in 

North Cypress, for example, agreed with a district court decision, Biomed Pharm., 

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

(S.D.N.Y. Feb. 18, 2011), which held that an agreement between a provider and a 

patient to waive payment for services does not extinguish a patient's standing to bring 

suit under plan terms. N. Cypress, 781 F.3d at 193. In Biomed, the service provider 

granted the participant a financial hardship waiver. 2011 WL 803097, at *2. The 

plan argued that because the patient had no obligation to pay the provider after the 

waiver, the provider 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 [p]lan 

with the requirements of standing." Id. In short, the plan "failed to fulfill its 

contractual obligations to the [p]atient; this is all that is required to demonstrate 

Article III standing." Id. The reasoning from these cases apply directly to the afacts 

here; even if the Mitchells are not required to pay the remaining balance, they still 

have constitutional standing to ensure the Plan satisfies its contractual obligations. 
15

B. The Four Circuits' Analysis Comports With Spokeo

Blue Cross argues that because the causes of action under section "constitute a 

comprehensive and exclusive enforcement scheme for ERISA," a claim under section 

502(a)(1)(B) is an ERISA benefits claim and should not be construed as a breach of 

contract claim. See Appellant Br. 52-54. As previously discussed, however, the 

Supreme Court's rationale in Spokeo for finding that intangible injuries can be 

concrete for constitutional standing purposes examines long-standing common law 

principles and Congressional intent. Both are considered in determining a plaintiff 

has constitutional standing to redress a statutory violation. Consistent with this 

framework, the four circuits held that the constitutional "injury" is the participant's 

loss of a right to benefits under an ERISA plan, and that injury is analogous to the 

Article III injury caused by common law contractual breaches. Contrary to Blue 

Cross's arguments, the approach in Spokeo to characterize the relevant injury under 

Article III for statutory claims based on common law principles and Congressional 

intent fully supports the four circuits' characterization of the "injury" for section 

502(a)(1)(B) as a contractual breach. See Spokeo, 136 S. Ct. at 1549, 1551.

First, this analogy to injury caused by contractual breaches also comports with 

the Congressional intent underlying ERISA's protections. See N. Cypress, 781 F.3d 

at 193-94; Springer, 900 F.3d at 292 (Thapar, J., concurring) (clarifying that where a 

plaintiff seeks to vindicate private rights that he held pursuant to the terms of his 
16

ERISA plan, such claims are historically analyzed under a breach-of-contract 

analysis and are valid even when no real loss is proved). The Congressional intent 

underlying ERISA is to "'protect contractually defined benefits.'" U.S. Airways, Inc., 

569 U.S. at 100 (quoting Mass. Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 148 

(1985)). 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 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). 

"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." 

N. Cypress, 781 F.3d at 194. Similarly, 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 the right here is the right 

enforceable pursuant to the terms of the plan, which is directly analogous to loss of 

contractual rights in a breach. 

Second, settled common law precedent recognizes constitutional standing to 

sue in analogous circumstances when plaintiffs claim a breach of contract even if 

some or all of the benefits accrue to another party. United Steel, Paper & Forestry, 
17

Rubber, Manufacturing, Energy, Allied Industrial & Service Workers International 

Union, AFL–CIO/CLC v. Cookson America, Inc., 710 F.3d 470 (2d Cir. 2013), 

stated that "'[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). Similarly, in 

Kuhns v. Scottrade, Inc., 868 F.3d 711, 716 (8th Cir. 2017), the Eighth Circuit 

recognized that "'a party to a breached contract has a 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)). See also Katz v. Pershing, 

LLC, 672 F.3d 64, 72 (1st Cir. 2012); DiCarlo v. St. Mary Hosp., 530 F.3d 255, 263 

(3d Cir. 2008).

Accordingly, the promises in ERISA plans, and the breach of those promises, 

are analogous to contractual breaches, cognizable injuries for Article III purposes. 

See, e.g., Johnson v. Allsteel, Inc., 259 F.3d 885, 888 (7th Cir. 2001) (applying the 

principle to an ERISA plan violation). Moreover, the Mitchells' loss of a contractual 

right to benefits is by no means abstract, but was a concrete failure to make the

promised payment to a provider for services rendered, which constitutes an injury for 

purposes of Article III standing. See Springer, 900 F.3d at 288. As stated in the 

Fifth, Sixth, Ninth, and Eleventh Circuit decisions, the characterization of the 

relevant injury as the participant's loss of a contractual right to benefits is consistent 
18

with long-standing common law principles and Congressional intent underlying 

ERISA's protections, the same two sources of authority recognized by Spokeo for 

determining "concrete" injuries. 

C. The July 2015 Agreement Does Not Distinguish This Case From 

The Other Circuit Decisions

1. The Agreement Did Not Assign The Mitchells' Right to Sue

Blue Cross attempts to distinguish this case based on its factually incorrect 

assertion that the Mitchells' assignment of proceeds of the litigation to VMF was 

actually an assignment of their right to sue. See Appellee Br. 46. Throughout their 

brief, Blue Cross suggests the assignment of proceeds establishes that the Mitchells 

no longer have a claim for benefits due to them under the Plan or ERISA. See id. at 

46-47. This assertion is wrong. 

 The July 2015 Agreement between the Mitchells and VMF did not assign 

their benefit claim to VMF. Rather, it assigned any proceeds of this litigation to 

VMF in exchange for a waiver of any claims that VMF has against the Mitchells. 

See Mitchell, 2018 WL 3463260, at *5-6. This case is distinguishable from Sprint 

Communications where payphone operators who were individually owed a small 

amount of money by long-distance carriers assigned their claims to aggregators 

"lock, stock, and barrel." 554 U.S. at 286. In Sprint Communications, the 

aggregators, in exchange for a fee, agreed to pursue the payphone operators' claims 

against the carriers and to remit the proceeds of the suits to the payphone operators. 
19

See id. The July 2015 Agreement, on the other hand, did not give VMF the right to 

pursue the Mitchells' benefit claim; it only required the Mitchells to remit to VMF 

the amounts won by the Mitchells through a settlement or judgment of the benefit 

claim they pursued. See Mitchell, 2018 WL 3463260, at *2, *6. The benefits won 

by this suit are still due to the Mitchells, and it is irrelevant for this suit whether the 

Mitchells later transfer the benefits obtained to reimburse VMF after the suit. See

supra Section IA.

Thus, this case is indistinguishable from other circuit decisions where courts 

allow providers to sue on behalf of participants as assignees, and the participants' 

benefits all rebound to the provider by contract, and not to the participants. The 

Mitchells asserted their own claim against Blue Cross and a denial of promised 

benefits is sufficient to establish a concrete injury for Article III standing. An Article 

III "case or controversy" over the benefits due to the Mitchells still exists. See

Spokeo, 136 S. Ct. at 1540. 

2. The Agreement Did Not Eliminate The Mitchells' Personal 

Stake In The Outcome Of This Case

Blue Cross also argues that the Mitchells do not assert a form of redressable 

injury under section 502(a)(1)(B) because the only form of relief available to the 

Mitchells in this action is reimbursement of payments they made to VMF. See

Appellee Br. 49-50. Blue Cross argues that no monetary judgment would 

compensate the Mitchells for an expense they incurred, because they have paid 
20

nothing and are not obligated to pay anything; therefore, they do not have a personal 

stake in the outcome of this case. 

But the Mitchells do not seek reimbursement of their own out-of-pocket losses 

through this ERISA action. The Mitchells' ERISA claim and constitutional injury is 

that Blue Cross unreasonably denied coverage of payment of medical services 

rendered to them. Thus, through judicial review of Blue Cross's decision, the 

Mitchells seek to enforce their rights under the Plan terms to reimburse medical 

services provided to them, not just any out-of-pocket liability, which falls squarely 

within ERISA section 502(a)(1)(B). See 29 U.S.C. § 1132(a)(1)(B) ("a civil action 

may be brought by a participant or beneficiary to recover benefits due to him under 

the terms of the plan [or] to enforce his rights under the terms of the plan"). The July 

2015 Agreement determines the allocation of the proceeds of this litigation; it do not 

alter the basis of the Mitchells' ERISA claim and the controversy in this case. 

Therefore, though Blue Cross argues that the lack of financial impact on the 

Mitchells removes any personal stake they have in this case, the Mitchells' financial 

situation after litigation is not determinative of whether they have a personal stake in 

the judicial review of Blue Cross's denial of their benefits. The Mitchells retain a 

financial stake in this litigation because they received coverage for medical services 

provided that is left unpaid. Their choice to direct any benefits from that coverage to 

their provider by contract does not obviate the indisputable fact that the Mitchells 
21

have a colorable right to those benefits and a right to direct those benefits in any way 

they want.

By asserting that they were denied benefits promised under the Plan, the 

Mitchells suffered an injury in fact that satisfies the requirements for Article III 

standing. The district court's conclusion that the Mitchells established constitutional 

standing regardless of a provider's decision not to pursue payment comports with the 

Fifth, Sixth, Ninth, and Eleventh Circuit decisions and is well-grounded in longstanding precedent and Congressional intent. A contrary result in this case will

create an unnecessary circuit split and deny a participant the only recourse for

judicial review of a plan's denial of a benefit. Therefore, this Court should affirm the 

district court's conclusion that the Mitchells established constitutional standing.

II. The Mitchells Have "Statutory Standing" To Bring An Action Under 

ERISA Section 502(a)(1)(B)

Blue Cross mistakenly argues that the Mitchells lack statutory standing to 

bring an action under ERISA section 502(a)(1)(B) because Ivan Mitchell is no longer 

employed by the Plan’s sponsor. See Appellee Br. 55-56. Blue Cross asserts that 

because Mr. Mitchell left his employment with Towner Medical Center, neither he 

nor his beneficiary, can be eligible for benefits under the Plan. See id.; Def. Opp'n. 

at 29. Additionally, Blue Cross argues that because the Mitchells do not assert any 

claim for benefits due to them under the Plan and because they will never make any

more payments to VMF, the Mitchells no longer have a "colorable claim to a benefit 
22

from the Plan at any time during the pendency of this action" to establish statutory 

standing under ERISA section 502(a)(1)(B). See Appellee Br. 32-33, 55-56. Blue 

Cross's arguments are meritless. 

A. As a former employee, Mr. Mitchell meets the statutory definition

of "participant" under ERISA to recover benefits under the Plan 

ERISA is designed to promote the interests of plan participants and their 

beneficiaries, and to protect contractually-defined benefits. See Firestone Tire & 

Rubber Co. v. Bruch, 489 U.S. 101, 113-14 (1989). To this end, ERISA section 

502(a)(1)(B) empowers a plan participant or beneficiary to sue "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." 29 U.S.C. § 

1132(a)(1)(B). ERISA defines the term "participant" as "any employee or former 

employee of an employer . . . who is or may become eligible to receive a benefit of 

any type from an employee benefit plan which covers employees of such employer . . 

. or whose beneficiaries may be eligible to receive any such benefit." 29 U.S.C. § 

1002(7) (emphasis added). The term "beneficiary" is defined as "a person designated 

by a participant, or by the terms of an employee benefit plan, who is or may become 

entitled to a benefit thereunder." Id. at § 1002(7) (emphasis added).

The Supreme Court in Firestone construed the term "participant" to include 

"former employees who have a reasonable expectation of returning to covered 

employment or who have a colorable claim to vested benefits." 489 U.S. at 117. To 
23

establish that a claimant "may become eligible" for benefits, he or she "must have a 

colorable claim that (1) he [or she] will prevail in a suit for benefits, or that (2) 

eligibility requirements will be fulfilled in the future." Id. at 117-18. Interpreting the 

requirement for "vested benefits," the Seventh Circuit in Harzewski noted that the 

Firestone Court "glossed 'benefit' in section 1002(7) as 'vested benefit,' which has 

caused the lower courts a good deal of angst." 489 F.3d at 806. "But in context," the 

Seventh Circuit continued, "it is apparent that all the [Supreme] Court meant was that 

the former employee . . . had to show that had it not been for the trustees' breach of 

their fiduciary duty he would have been entitled to greater benefits than he received." 

Id. 

The Supreme Court clarified the requirements for "vested benefits" in LaRue, 

stating that a Plan "participant," as defined by 29 U.S.C. § 1002(7), "may include a 

former employee with a colorable claim for benefits." 552 U.S. at 256 n.6 (citing 

Harzewski, 489 F.3d at 799). The Ninth Circuit in Poore v. Simpson Paper Co., 566 

F.3d 922 (9th Cir. 2009), relied on two Supreme Court case decided between 

Firestone and LaRue to support the understanding that "LaRue remedied the 'angst' 

noted by the Seventh Circuit by loosening the requirement that the claimed benefits 

be 'vested,' at least insofar as vested means permanently fixed and unalterable." 566 

F.3d at 926. The first case, Curtis-Wright Corp. v. Schoonejongen, 514 U.S. 73, 78 

(1995), allowed former employees of a health plan to sue under ERISA section 502, 
24

where the former employees claimed that their plan did not contain an amendment 

procedure as required by ERISA. The second case, Inter-Modal Rail Emps. Ass'n. v. 

Atchison, Topeka & Santa Fe Ry., 520 U.S. 510, 514-15 (1997), held that the 

protections of ERISA section 510, 29 U.S.C. § 1140, extend to those with non-vested 

rights. In both cases, the Supreme Court extended protections to participants without 

vested rights because Congress did not limit its protections to those with vested 

benefits. Thus, the Ninth Circuit explained that "[l]ikewise, as is the situation here, if 

Congress intended to limit the right to sue under § 1132 to vested right-holders, it 

would have said so instead of granting it to 'participant[s]' (a defined term which 

includes both vested and non-vested persons)." Poore, 566 F.3d at 926.

Four circuits have uniformly held that a former employee has statutory 

standing to sue as a "participant" under ERISA section 502(a). See Vaughn v. Bay 

Envtl. Mgmt., Inc., 567 F.3d 1021, 1030 (9th Cir. 2009); Evans v. Akers, 534 F.3d 

65, 67 (1st Cir. 2008); In re Mut. Funds Inv. Litig. 529 F.3d 207, 216 (4th Cir. 2008);

Graden v. Conexant Sys. Inc., 496 F.3d 291, 294 (3d Cir. 2007). No circuit has ruled 

otherwise. While many of these cases concern statutory standing for ERISA 

fiduciary breach claims under section 502(a)(2), they interpret the same defined term 

in ERISA, "participant," that is used in both section 502(a)(1)(B) and section 

502(a)(2). Moreover, these cases rely on Firestone, which interpreted "participant" 

in parallel provisions, section 502(a)(1) and 502(c)(1)(B). Their reasoning, therefore, 
25

applies equally to the Mitchells' section 502(a)(1)(B) claim.

B. The Mitchells have a colorable claim to benefits to establish 

statutory standing under ERISA section 502(a)(1)(B)

As a former employee or his beneficiary, the Mitchells only need to show that 

they have a "colorable claim to benefits which the employer promised to provide 

pursuant to the employer relationship" to sue under ERISA section 502(a)(1)(B). 

Panaras v. Liquid Carbonic Indus. Corp., 74 F.3d 786, 791 (7th Cir. 1996). The fact 

that Mr. Mitchell's employment ended does not deprive the Mitchells of their 

statutory right to recover promised benefits because "when determining participant 

standing under ERISA, the relevant inquiry is whether the plaintiff alleges that his 

benefit payment was deficient on the day it was paid under the terms of the plan and 

the statute. If so, he states a claim for benefits, which, if colorable, makes him a 

participant with standing to sue." Graden, 496 F.3d at 303 (emphasis added); accord

Vaughn, 567 F.3d at 1030; Evans, 534 F.3d at 76; In re Mut. Funds Inv. Litig., 529 

F.3d at 216. The right to sue turns on the date of payment and any purported 

underpayment, not on the participant's employment status.

Blue Cross also argues that the agreement to direct proceeds of this suit to 

VMF eliminates the Mitchells' statutory standing to sue because they no longer sue 

for benefits "due" to them under ERISA. See Appellee Br. 55-56. Nothing in 

ERISA suggests that the benefits for participants cannot be directed or assigned to 

third parties, such as medical providers. In fact, numerous cases, including from this 
26

Court, all agree that ERISA claims and benefits can be assigned to medical providers 

for reimbursement of covered medical services without affecting the participants'

statutory standing. See, e.g., Grasso Enters., LLC v. Express Scripts, Inc., 809 F.3d 

1033, 1040 (8th Cir. 2016).

The right to sue also does not turn on how any benefits obtained by a suit 

should be directed. "The standard for a colorable claim is low. A colorable claim is 

one that [is] non-frivolous but 'need not have a likelihood of success on the merits.'" 

Mitchell, 2018 WL 3463260, at *8 (internal citations omitted). The Mitchells have 

consistently argued that Blue Cross denied healthcare benefits promised to them 

under the terms of the Plan. See id. The district court correctly concluded that the 

Mitchells made a non-frivolous and "colorable" claim that Blue Cross unreasonably 

interpreted Plan terms to deprive them of their rights. In fact, the district court 

agreed with the Mitchells on one of their claims for benefits. See id. at *13. Thus, 

this Court should affirm the district court's conclusion the Mitchells established 

statutory standing to bring an action under ERISA Section 502(a)(1)(B).

CONCLUSION

The Secretary respectfully requests that this Court affirm the District 

Court's ruling on constitutional standing and statutory standing.

DATED: January 17, 2019
27

Respectfully submitted,

KATE S. O'SCANNLAIN

 Solicitor of Labor

G. WILLIAM SCOTT 

Associate Solicitor

 for Plan Benefit Security

THOMAS TSO

Counsel for Appellate 

 and Special Litigation 

CHRISTINE D. HAN

Trial Attorney

Office of the Solicitor

Plan Benefits Security Division

U.S. Department of Labor

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

Washington, D.C. 20210

(202) 693-5765
CERTIFICATE OF COMPLIANCE WITH FED. R. APP. P. 32(a)

1. This brief complies with the type-volume limitations of Fed. R. App. P. 

32(g)(1) because this brief contains 6469 words excluding the parts of the brief 

exempted by the Fed. R. App. P. 32(f).

2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) 

because this brief has been prepared in a proportionally spaced typeface using 

Microsoft Word 2016 in 14-point, Times New Roman font. 

DATED: January 17, 2019

/s/ Christine D. Han

CHRISTINE D. HAN

Trial Attorney

U.S. Department of Labor

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

Washington, D.C. 20210

(202) 693-5765
CERTIFICATE OF SERVICE

I hereby certify that on January 17, 2019, I electronically filed the

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

Curiae, in Support of Plaintiffs-Appellants / Cross-Appellees, with the Clerk of the 

Court for the United States Court of Appeals for the Eighth 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/ Christine D. Han

CHRISTINE D. HAN

Trial Attorney

U.S. Department of Labor

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

Washington, D.C. 20210

(202) 693-5765