IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-31034

CELL SCIENCE SYSTEMS CORPORATION, 

 Plaintiff - Appellant

v.

LOUISIANA HEALTH SERVICE ; INDEMNITY COMPANY, doing business 

as Blue Cross Blue Shield of Louisiana, 

 Defendant - Appellee

Appeal from the United States District Court

for the Middle District of Louisiana

USDC No. 3:17-CV-1658

Before DAVIS, HO, and ENGELHARDT, Circuit Judges.

PER CURIAM:*

This case comes before our court on a motion to dismiss for lack of subject 

matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), based on 

standing. We AFFIRM the judgment of the district court.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

March 17, 2020

Lyle W. Cayce

Clerk

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I.

Cell Science Systems Corporation (CSS) is the developer of the ALCAT 

test, a blood test used by healthcare providers to identify food and chemical 

sensitivities in their patients. The dispute in the instant matter arose when 

Blue Cross Blue Shield of Louisiana (BCBSLA) refused payment to CSS for 

ALCAT tests that had been administered to patients who were participants 

and/or beneficiaries of health benefit plans managed by BCBSLA. CSS is not 

a participating provider in BCBSLA’s network of providers. Because it has no 

contractual relationship with BCBSLA, CSS sought reimbursement for the 

ALCAT tests pursuant to purported assignments of benefits from the patients.

The plans at issue are governed by the Employee Retirement Income 

Security Act (ERISA). 29 U.S.C. §1001, et seq. CSS filed suit against BCBSLA 

as the plan administrator and plan fiduciary. In its initial complaint, CSS

asserted claims under §502(a)(1)(B), §502(c), and §502(a)(3). BCBSLA filed a 

motion to dismiss for lack of jurisdiction and failure to state a claim. While 

BCBSLA’s motion to dismiss was pending, CSS filed an amended and 

supplemental complaint. On August 20, 2018, the district court, concluding 

that CSS had failed to demonstrate standing, granted BCBSLA’s motion and 

dismissed the matter without prejudice under Rule 12(b)(1) for lack of subject 

matter jurisdiction.

II.

We review de novo a grant of a motion to dismiss, applying the same 

standards as the district court. LeClerc v. Webb, 419 F.3d 405, 413 (5th Cir. 

2005). Here, the motion to dismiss was brought under Rule 12(b)(1) and Rule 

12(b)(6). “When a motion to dismiss for lack of jurisdiction is filed in 

conjunction with other Rule 12 motions, the court should consider the Rule 

12(b)(1) jurisdictional attack before addressing any attack on the merits.” 

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Crenshaw-Logal v. City of Abilene, Tex., 436 F. App’x 306, 308 (5th Cir. 2011) 

(per curiam) (quoting Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 

2001)). On a Rule 12(b)(1) motion to dismiss, the party asserting jurisdiction 

bears the burden of proving that jurisdiction exists. Ramming, 281 F.3d at 

161.

III.

A. ERISA Standing

Our first inquiry is whether standing is jurisdictional. On appeal, CSS 

contends that the district court erred in treating standing as a jurisdictional 

issue. Our court’s precedent, however, indicates that the district court did not 

err in so doing. See Lee v. Verizon Commc’ns, Inc., 837 F.3d 523, 533 (5th Cir. 

2016) (“As a matter of subject matter jurisdiction, standing under ERISA § 

502(a) is subject to challenge through Rule 12(b)(1).”); Cobb v. Central States, 

461 F.3d 632, 635 (5th Cir. 2006) (“[S]tanding to bring an action founded on 

ERISA is a jurisdictional matter.”); LeTourneau Lifelike Orthotics & 

Prosthetics, Inc. v. Wal-Mart Stores, Inc., 298 F.3d 348, 351 (5th Cir. 2002)

(“Standing is jurisdictional. [A]bsent a valid assignment of benefits . . . , 

[Plaintiff] would have no derivative standing to sue . . . under ERISA Section 

502.”); Hermann Hosp. v. MEBA Med. & Benefits Plan, 959 F.3d 569, 572 (5th 

Cir. 1992) (Hermann II), overruled on other grounds by Access Mediquip, L.L.C. 

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

standing as a question of subject matter jurisdiction).

Rather than accept this precedent, CSS attempts to reframe the standing 

analysis altogether. CSS contends that Article III standing is a jurisdictional 

prerequisite but that the standing at issue here is prudential standing and 

should be considered under Rule 12(b)(6) rather than Rule 12(b)(1). See Harold 

H. Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787, 795-96 (5th Cir. 2011). CSS 

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further submits that the Supreme Court drew this distinction between Article 

III standing and prudential standing in Lexmark International, Inc. v. Static 

Control Components, Inc., 572 U.S. 118 (2014). In Lexmark, the Court was 

tasked with determining whether the plaintiff had standing to sue under the 

substantive statute.1 572 U.S. at 127–28. However, the primary inquiry there 

was whether the plaintiff fell within the class of persons that has a right to 

sue. Id. This required the Court to apply a zone-of-interests analysis, using 

traditional tools of statutory interpretation, to determine whether the statute 

encompassed the particular plaintiff’s claim. Id. Notably, the Court clarified 

that labeling the zone-of-interests test as one of prudential standing is a 

misnomer because the test is more properly viewed as one of statutory 

interpretation. Id.; see Superior MRI Servs., Inc. v. Alliance Healthcare Servs., 

Inc., 778 F.3d 502, 506 (5th Cir. 2015). 

Here, however, there is no issue of statutory interpretation and therefore 

no need to apply the zone-of-interests test in our standing analysis. CSS 

clearly does not fall within the class of persons to whom the ERISA statute 

gives the right to sue. See Dialysis Newco, Inc. v. Cmty. Health Sys. Grp.

Health Plan, 938 F.3d 246, 250 (5th Cir. 2019) (“ERISA does not supply the 

provider with a basis for bringing its claim directly against the [plan 

administrator/fiduciary]; instead, the provider’s standing to bring this lawsuit 

must be derived from the beneficiary and it is subject to any restrictions 

contained in the plan.”). Yet, CSS contends it has standing through purported 

assignments of benefits from the patients, who have a right to sue under the 

statute as plan participants and/or beneficiaries. Consequently, before us is 

an issue of third-party standing. The Lexmark Court, by contrast, expressly 

1 As a factual distinction from the instant case, the plaintiff in Lexmark brought a 

claim of false advertising; thus, the relevant statute at issue there was the Lanham Act, not 

ERISA.

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declined to address this discrete issue. Lexmark, 572 U.S. at 127 n.3. (“This 

case does not present any issue of third-party standing, and consideration of 

that doctrine’s proper place in the standing firmament can await another 

day.”).

Moreover, our court has since directly addressed the limited applicability 

of Lexmark to questions of prudential standing. See Superior MRI, 778 F.3d 

at 506. In Superior MRI, the plaintiff cited Lexmark for the proposition that 

prudential standing may not be used as a jurisdictional bar. Id. at 505–06. 

However, our court clarified that such an application of Lexmark is misplaced:

“[b]ecause the Lexmark holding deals only with the zone-of-interests test and 

not with the requirement that a party assert its own rights, Lexmark does not 

control here.” Id. at 506. Like the plaintiff in Superior MRI, CSS must “assert 

its own rights” to demonstrate standing. See id. at 504–06. Such a 

requirement is jurisdictional in nature. Cf. Dialysis Newco, 938 F.3d at 250 

(concluding that a district court lacks jurisdiction where the provider cannot 

demonstrate standing through a valid assignment of benefits). Seeing no 

reason to revisit our precedent regarding standing under ERISA, “we are 

bound to follow our precedent until the Supreme Court squarely holds to the 

contrary.”2 See Superior MRI, 778 F.3d at 506 (citing Exelon Wind 1, L.L.C. v. 

Nelson, 766 F.3d 380, 394 (5th Cir. 2014)).

Because Rule 12(b)(1) applies, we next consider whether the attack on 

the complaint is facial or factual. “A ‘facial attack’ on the complaint requires 

the court merely to look and see if plaintiff has sufficiently alleged a basis of 

subject matter jurisdiction, and the allegations in his complaint are taken as 

2 Our court’s consistent treatment of ERISA standing as a jurisdictional issue is 

further underscored by Lee v. Verizon, a post-Lexmark decision, wherein our court held, “[a]s 

a matter of subject matter jurisdiction, standing under ERISA § 502(a) is subject to challenge 

through Rule 12(b)(1).” Lee, 837 F.3d at 533.

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true for the purposes of the motion. A ‘factual attack,’ however, challenges the 

existence of subject matter jurisdiction in fact, irrespective of the pleadings, 

and matters outside the pleadings, such as testimony and affidavits, are 

considered. Moreover, a ‘factual attack’ under Rule 12(b)(1) may occur at any 

stage of the proceedings, and plaintiff bears the burden of proof that 

jurisdiction does in fact exist.” Menchaca v. Chrysler Credit Corp., 613 F.2d 

507, 511 (5th Cir. 1980) (citing Mortensen v. First Federal Savings & Loan 

Ass'n, 549 F.2d 884, 891–92 (3d Cir. 1977)).

We agree with the district court that BCBSLA has launched a factual 

attack because it has challenged the underlying facts supporting the 

complaint, i.e. the validity of the assignment, rather than merely challenging 

the allegations on their face. Therefore, the court may take material outside 

of the pleadings, such as affidavits, testimony, and other evidentiary materials,

into account when evaluating the issue of jurisdiction. Irwin v. Veterans 

Admin., 874 F.2d 1092, 1096 (5th Cir. 1989). 

Additionally, because a factual attack was raised, the burden of proof 

shifts to CSS. “If a defendant makes a ‘factual attack’ upon the court's subject 

matter jurisdiction over the lawsuit, the defendant submits affidavits, 

testimony, or other evidentiary materials. In the latter case a plaintiff is also 

required to submit facts through some evidentiary method and has the burden 

of proving by a preponderance of the evidence that the trial court does have 

subject matter jurisdiction.” Paterson v. Weinberger, 644 F.2d 521, 523 (5th 

Cir. 1981). Moreover, “when a factual attack is made upon federal jurisdiction, 

no presumptive truthfulness attaches to the [plaintiff’s] jurisdictional 

allegations, and the court is free to weigh the evidence and satisfy itself as to 

the existence of its power to hear the case.” Evans v. Tubbe, 657 F.2d 661, 663 

(5th Cir. 1981). Accordingly, in order to survive the Rule 12(b)(1) motion to 

dismiss for lack of jurisdiction, CSS was required to put forth evidence of valid 

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and enforceable assignments of benefits from the ERISA plan participants 

and/or beneficiaries.

B. Assignment of Benefits

We now turn to the substantive question of whether CSS has established 

a valid assignment, and therefore has standing. Our court has held that 

“ERISA health care benefits are assignable. ERISA contains no antiassignment provision with regard to health care benefits of ERISA-governed 

medical plans, nor is there any language in the statute which even remotely 

suggests that such assignments are proscribed or ought in any way to be 

limited.” Hermann Hosp. v. MEBA Med. & Benefits Plan, 845 F.2d 1286, 1289 

(5th Cir. 1988) (Hermann I). 

CSS contends that the contracts assign all rights to CSS, pointing to an 

example in a document submitted by BCBSLA that reads in relevant part: 

“I hereby assign all medical benefits to which I am entitled to CSS 

Ltd., Corp. If insurance payments for CSS are sent directly to me, 

I will endorse and send to CSS promptly . . . I assume responsibility 

for payment if insurance claim is denied and for any monies owed 

for any co-insurance or deductible amounts. I will insure payment 

of any outstanding balance due after claim is processed.”

CSS alleges that this language covers all medical benefits and all rights to 

payment. Conversely, BCBSLA contends that even assuming these forms are 

valid and enforceable, they do not assign the right to file suit for benefits or for 

breach of fiduciary duty, or the right to request plan documents. To support 

its position, BCBSLA cites to controlling precedent stating that “only an 

express and knowing assignment of an ERISA fiduciary breach claim is valid.” 

Texas Life, Acc. Health & Hosp. Serv. Ins. Guar. Ass’n v. Gaylord 

Entertainment Co., 105 F.3d 210, 218–19 (5th Cir. 1997) (holding that a broad 

provision assigning the rights of anyone accepting benefits under the relevant 

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act was insufficient to assign the fiduciary breach claims). Additionally,

following CSS’s Rule 26(a) disclosures wherein CSS failed to disclose 

assignment forms for several of the claimed patients, BCBSLA challenged the 

factual allegation that CSS had actually obtained valid assignments on behalf 

of all of the claimed plan participants. Accordingly, the burden then shifted to 

CSS to produce evidence of valid and enforceable assignments.

Yet, despite having leave to amend its complaint and to file supplemental 

briefs, CSS did not submit any materials attempting to prove subject matter 

jurisdiction, instead focusing on its contention that it should not have to 

provide evidence at this stage in the pleadings. However, as our precedent 

makes clear, Rule 12(b)(1) requires the district court to evaluate jurisdiction, 

with the burden of proof on CSS. CSS nevertheless failed to attach any of the 

purported assignments to its complaint, its amended and supplemental 

complaint, or any of the four briefs submitted in response to the pending 

motion to dismiss. As the district court noted, this repeated failure 

undermines the allegation that CSS had obtained valid assignments of rights 

it asserts herein. Because CSS failed to meet its burden of proving, by a 

preponderance of the evidence, that it had obtained valid assignments, the 

district court correctly concluded that BCBSLA is entitled to dismissal.

But even assuming arugendo that the language of the form cited by CSS

assigns a right to bring suit, there can be no valid assignment because the 

contract includes anti-assignment language:

A Member’s rights and Benefits under this Contract are personal 

to the Member and may not be assigned in whole or in part by the 

Member. We will recognize assignments of benefits to Hospitals if 

both this Contract and the Provider are subject to La. R.S. 40:2010. 

If both this Contract and the Provider are not subject to La. R.S. 

40:2010, We will not recognize assignments or attempted 

assignments of benefits. Nothing contained in the written 

description of health coverage shall be construed to make the 

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health plan or Us liable to any third party to whom a Member may 

be liable for the cost of medical care, treatment, or services.

CSS counters that BCBSLA is estopped from asserting the anti-assignment 

language.

C. Estoppel

In order “[t]o establish an ERISA-estoppel claim, the plaintiff must 

establish: (1) a material misrepresentation; (2) reasonable and detrimental 

reliance upon the representation; and (3) extraordinary circumstances.” Mello 

v. Sara Lee Corp., 431 F.3d 440, 444–45 (5th Cir. 2005). On the first element, 

CSS contends that BCBSLA made a material misrepresentation by failing to

assert the anti-assignment language until now, instead denying payment 

because the tests were allegedly “investigational.” To support this assertion, 

CSS relies heavily on our decision in Hermann II in which our court held that 

the plan was estopped from asserting an anti-assignment clause after failing 

to assert the clause at any point during the three years of ongoing investigation 

and communication regarding the claim; yet, the plan relied on the antiassignment clause in ultimately denying the claim. Hermann II, 959 F.2d at

574–75. Unlike the plan in Hermann II, here, BCBSLA did not invoke the 

anti-assignment clause to deny the claim; it invoked the anti-assignment claim 

only as a challenge to jurisdiction. There is no indication from the record that 

BCBSLA either misrepresented or misled CSS with respect to its intention to 

enforce the anti-assignment clause in its plan. See Mello, 431 F.3d at 445 

(citing Weir v. Federal Asset Disposition Ass’n, 123 F.3d 281, 289–90 (5th Cir. 

1997)). 

CSS then argues that it reasonably and detrimentally relied on 

BCBSLA’s alleged preauthorization of the test and the past payments covering 

the test. Our court has held that a party’s reliance is not reasonable if it is 

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inconsistent with the clear and unambiguous terms of the plan documents. Id. 

at 447 (citing Sprague v. GMC, 133 F.3d 388, 404 (6th Cir. 1998)). On this 

element, CSS’s argument is again misplaced. CSS may have reasonably and 

detrimentally relied on BCBSLA’s preauthorization and prior payments in 

believing the claim would not be denied. Yet, that reliance is irrelevant to 

BCBSLA’s representations with respect to the anti-assignment clause CSS 

wishes to estop because the anti-assignment clause clearly and unambiguously 

prohibits a participant’s assignment of benefits.

Finally, CSS must show “extraordinary circumstances.” See id. at 444–

45. Although, as the district court noted, our court has not specifically defined 

the term, we have recognized the Third Circuit’s approach with approval. High 

v. E-Systems, Inc., 459 F.3d 573, 580 n.3 (5th Cir. 2006). This approach 

generally defines extraordinary circumstances as those that involve bad faith, 

fraud, or concealment, as well as possibly when “a plaintiff repeatedly and 

diligently inquired about benefits and was repeatedly misled” or when 

“misrepresentations were made to an especially vulnerable plaintiff.” Id. CSS 

relies on essentially the same argument it presented for the first element—the

fact that BCBSLA brought up the anti-assignment provision now rather than 

when the payments were denied. Once again, CSS fails on this element

because it has presented no allegation, argument, or evidence demonstrating 

“extraordinary circumstances” in this case. Therefore, BCBSLA is not 

estopped from asserting the anti-assignment provisions in the plan. 

IV.

For the reasons set forth above, CSS has failed to demonstrate by a 

preponderance of the evidence that it has standing to bring suit; accordingly, 

the district court did not err in granting the motion to dismiss under Rule 

12(b)(1) for lack of subject matter jurisdiction. We AFFIRM.

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