Pascack Valley Hosp v. Local 464A UFCW

Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit

12-23-2004

Pascack Valley Hosp v. Local 464A UFCW Precedential or Non-Precedential: Precedential

Docket No. 03-4196 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004

Recommended Citation "Pascack Valley Hosp v. Local 464A UFCW" (2004). 2004 Decisions. Paper 7. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/7

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PRECEDENTIAL WALLACE, Circuit Judges*

UNITED STATES COURT OF (Filed: November 1, 2004) APPEALS FOR THE THIRD CIRCUIT Shea H. Lukacsko __________ Keith R. McMurdy (Argued) Grotta, Glassman & Hoffman No. 03-4196 75 Livingston Avenue __________ Roseland, NJ 07068

PASCACK VALLEY HOSPITAL, John Sydlar INC.; Maloof, Lebowitz, Connahan & Oleske 127 Main Street Chatham, NJ 07928 v. Counsel for Appellant LOCAL 464A UFCW WELFARE REIMBURSEMENT PLAN John M. Agnello Kerrie R. Heslin Pascack Valley Hospital, Inc., Carella, Byrne, Bain, Gilfillan, Cecchi, Stewart & Olstein Appellant 5 Becker Farm Road Roseland, NJ 07068

On Appeal From The United States Michael T. Anderson (Argued) District Court Davis, Cowell & Bowe For The District Of New Jersey 1701 K Street, N.W. (D.C. Civil No. 02-cv-05974) Suite 210 Washington, DC 20006

District Judge: The Honorable Dennis Counsel for Appellee M. Cavanaugh __________

Argued June 16, 2004 __________ * The Honorable J. Clifford Wallace, Senior Circuit Judge for the United Before: ALITO, SMITH, and States Court of Appeals for the Ninth Circuit, sitting by designation.

AMENDED I. OPINION The Plan is an “employee welfare benefit plan” as defined by ERISA. 29 U.S.C. § 1002(1). 1 The Plan is a SMITH, Circuit Judge. reimbursement plan only; it reimburses This case presents a question of participants and beneficiaries for out-of- jurisdiction under the civil enforcement pocket medical expenses but does not provision of the Employee Retirement itself provide medical care. Income Security Act (“ERISA”), 29 MagNet, Inc. is an independent U.S.C. § 1132(a). Pascack Valley Hospital consultant. MagNet has organized a (the “Hospital”) sued the United Food and network of hospitals that have agreed to Commercial Workers International Union accept discounted payment for medical Local 464A, AFL-CIO Group services provided to beneficiaries of group Reimbursement Welfare Plan (the “Plan”) health plans in return for the plans’ in state court for breach of contract. The promise to encourage beneficiaries to use Plan removed the case to federal district network hospitals. Network hospitals do court and moved for summary judgment. not contract directly with the plans. The Hospital moved to remand. The Instead, MagNet enters into separate District Court held that the Hospital’s contracts with individual plans, and breach of contract claims against the Plan separate contracts with individual were completely pre-empted by ERISA hospitals. and therefore raised a federal question supporting removal under 28 U.S.C. § Around 1995, the Plan entered into 1441(a). We hold that, under the well- pleaded complaint rule, the Hospital’s complaint does not present a federal 1 An ERISA Plan is a legal entity that question that would support removal. We can sue and be sued. 29 U.S.C. § further hold that the Hospital’s state law 1132(d)(1). Accordingly, the term breach of contract claims are not “Plan” refers not only to the defendant in completely pre-empted by ERISA’s civil the underlying lawsuit and the appellee enforcement provision because the before this Court, but also to the Hospital could not have brought its claims underlying “[r]ules governing collection under ERISA. We will therefore vacate of premiums, definition of benefits, the judgment of the District Court and submission of claims, and resolution of remand to that court with instructions that disagreements over entitlement to it, in turn, remand these proceedings to the services” that make up an employee state court whence they came. welfare plan. Pegram v. Herdrich, 530 U.S. 211, 223 (2000).

a “Subscriber Agreement” with MagNet. reimbursement rate and that In 1996, the Hospital entered into a Network Hospital is then “Network Hospital Agreement” with entitled to bill and collect MagNet. Section 2.1 of the Subscriber f r o m S u b s c r i b e r a nd Agreement governs “Hospital payment,” Eligib le Person its and provides that the discounted rate customary rate for services offered by the Hospital will be forfeited rendered. If Subscriber fails unless claims are timely paid: to make the payment, the Network Hospital may Subscriber . . . shall pay pursue any remed ies Network Ho spitals for available against Subscriber Covered Services furnished and Eligible Person. to Eligible Persons. In 1999, the Hospital provided Pursuant to a valid medical services to Kimberly Rovetto and assignment from Eligible Betty Psaras. Both Psaras and Rovetto Person, Subscriber . . . shall were “Eligible Persons” under the dir ectly pa y N e t w o rk Subscriber Agreement, and the medical H ospitals for Covered services provided to Psaras and Rovetto S e r v ic e s p r o v i d e d to were “Covered Services” under the Eligible Persons within Subscriber Agreement. The Hospital thirty (30) days after date of alleges that the Plan failed to pay the receipt of submitted Clean Hospital for the services rendered to Claims. . . . Psaras and Rovetto according to the terms For other non-clean claims, of the Subscriber Agreement. The payment shall be made Hospital contends that claims for those within thirty (30) days of services were properly submitted on April receipt of all records and 15, 1999, and October 5, 1999. The other information necessary Hospital further contends that it received for proper claims payment on these claims at the discounted adjudication. rate on June 8, 1999, and November 22, 1999, respectively. According to the ... Hospital’s interpretation of § 2.1 of the Wh ere o b l i g a ted, if Subscriber Agreement, the Plan’s failure Subscriber fails to pay to pay these claims within thirty days of within the appropriate time receipt effected a forfeiture of the f ra m e, the Subscriber discounted rate provided in the Network acknowledges that it will Hospital Agreement. The Hospital lose the benefit of the therefore seeks to recover the allegedly MagNet discounted forfeited discount from the Plan.

On October 23, 2002, the Hospital question. The District Court heard oral filed suit in the Superior Court of New argument on the parties’ motions on Jersey. September 25, 2003. The next day, on September 26, 2003, the District Court The Complaint alleges that the Hospital is issued an Opinion and Order granting the a third-party beneficiary to the Subscriber Plan’s motion for summary judgment, Agreement between MagNet and the Plan, denying the Hospital’s cross-motion to under which the Plan “became obligated to remand, and dismissing the complaint pay [the Hospital] for eligible medical without prejudice. The District Court’s services provided by [the Hospital],” and two-page Opinion and Order states in “was required to comply with certain terms relevant part: and conditions of [the Hospital’s] contract with MagNet [i.e., the Network Hospital Defendant believing Agreement], requiring payment in the time that Plaintiff’s state law period specified in said contract.” The c la im s are completely two-count complaint alleges that the Plan preempted by [ERISA] in breached this contract by improperly that Plaintiff now stands in taking a discount on the services provided the shoes of the Plan’s to Psaras and Rovetto despite the Plan’s beneficiaries as assignee, failure to make timely payment under the and therefore Defendant Subscriber Agreement. 2 believes the facts show it is entitled to judgment as a The Plan removed the case to the matter of law; and District Court. Thereafter, the Plan moved for summary judgment and the Hospital Plaintiff believing the cross-moved to remand the case to state action is not preempted by court. The parties’ motions focused on ERISA since Plaintiff is not whether, under the doctrine of “complete a participant or beneficiary pre-emption,” the Hospital’s state law under ERISA and therefore breach of contract claims raised a federal there is no federal law claim, and therefore the matter should be remanded 2 to the state court; and The Plan incorrectly states that “[t]he Hospital’s complaint only claims This Court being in unjust enrichment.” Appellee’s Br. at 2, agreement with and adopts 21-22. Although the Complaint does the reasoning of counsel for allege that the Plan “has been unjustly Defendant as stated on the enriched to the detriment of [the record, and further rejects Hospital],” the Complaint explicitly the arguments put forth by alleges that the Plan “breached” its counsel for Plaintiff; and contractual obligations to the Hospital.

This Court agrees declined to do so and instead filed this with and adopts the analysis appeal. and holding as set forth in 28 U.S.C. § 1291 provides this Charter Fairmount Institute, Court with jurisdiction over a final order Inc. v. Alta H ealth dismissing a complaint as completely Strategies, 835 F. Supp. pre-empted. DiFelice v. Aetna U.S. 233; and Healthcare, 346 F.3d 442, 445 (3d Cir. This Court being 2003). “Generally, an order which satisfied that [the doctrine of dismisses a complaint without prejudice is com plete preem ption] neither final nor appealable because the having been met in this deficiency may be corrected by the case; and plaintiff without affecting the cause of action.” Borelli v. City of Reading, 532 As this case falls F.2d 950, 951 (3d Cir. 1976) (per curiam). 3 with in t h e “ c o m p l e te If the plaintiff elects to stand on the preemption” exception to dismissed complaint, however, the order of the well pleaded complaint dismissal is final and appealable. Id. at doctrine, removal to federal 951-52. At oral argument, counsel for the court was proper, and Hospital declared the Hospital’s intention remand to state court would to forego any ERISA claim it may have be inappropriate . . . . and to stand on its complaint. Counsel’s declaration is sufficient to render the District Court’s order final and appealable. (Footnote omitted). The Hospital filed a Remick v. Manfredy, 238 F.3d 248, 254 timely notice of appeal on October 22, (3d Cir. 2001). This Court exercises 2003. plenary review over a district court’s II. exercise of jurisdiction and order of dismissal. DiFelice, 346 F.3d at 445; Before turning to the District Court’s removal jurisdiction, we must first address our own appellate jurisdiction. 3 That the District Court also denied Although the District Court purported to the Hospital’s motion to remand does not grant summary judgment in favor of the make the court’s order appealable. Plan, the District Court actually dismissed Caterpillar Inc. v. Lewis, 519 U.S. 61, 74 the H ospital’s complaint without (1996) (“An order denying a motion to prejudice. That disposition allowed the remand, ‘standing alone,’ is ‘[o]bviously Hospital, which emphatically disavows an . . . not final and [immediately] ERISA claim for benefits, to replead its appealable’ as of right.” (quoting c o m p l a i n t u n d e r E R I S A ’ s c i v il Chicago, R.I. & P.R. Co. v. Stude, 346 enforcement provision. The Hospital U.S. 574, 578 (1954)).

Pryzbowski v. U.S. Healthcare, Inc., 245 may pre-empt the Hospital’s state law F.3d 266, 268 (3d Cir. 2001). claims is not a sufficient basis for removal. Franchise Tax Bd., 463 U.S. at 12.4 III. The Plan argues that the Hospital’s A civil action filed in a state court claims arise under “the federal common may be removed to federal court if the law” of ERISA. On several occasions, we claim is one “arising under” federal law. have predicated jurisdiction on a plaintiff’s 28 U.S.C. §§ 1331, 1441(a). Under the invocation of the federal common law of “well-pleaded complaint” rule, the plaintiff ERISA. Bollman Hat Co. v. Root, 112 is ordinarily entitled to remain in state court so long as its complaint does not, on its face, affirmatively allege a federal 4 Pre-emption under § 514(a) of claim. Beneficial Nat’l Bank v. Anderson, ERISA, 29 U.S.C. § 1144(a), must be 539 U.S. 1, 6 (2003). To support removal, distinguished from complete pre-emption “‘[a] right or immunity created by the under § 502(a) of ERISA, 29 U.S.C. § Constitution or laws of the United States 1132(a). Only the latter permits removal must be an element, and an essential one, of what would otherwise be a state law of the plaintiff’s cause of action.’” claim under the well-pleaded complaint Franchise Tax Bd. of Cal. v. Constr. rule. Under § 514(a), ERISA supersedes Laborers Vacation Trust for S. Cal., 463 state laws that “relate to” an ERISA plan. U.S. 1, 10-11 (1983) (quoting Gully v. 29 U.S.C. § 1144(a). Unlike the scope of First Nat’l Bank in Meridian, 299 U.S. § 502(a), which is jurisdictional and 109, 112 (1936)). Federal pre-emption is creates a basis for removal to federal ordinarily a defense to a plaintiff’s suit court, § 514(a) merely governs the law and, as such, does not appear on the face that will apply to state law claims, of a well-pleaded complaint. Anderson, regardless of whether the case is brought 539 U.S. at 6; Franchise Tax Bd., 463 U.S. in state or federal court. Lazorko v. Pa. at 12. Hosp., 237 F.3d 242, 248 (3d Cir. 2000). On its face, the Hospital’s Section 514(a), therefore, does not complaint does not present a federal permit removal of an otherwise well- question. Rather, the complaint asserts pleaded complaint asserting only state state common law claims for breach of law claims. Pryzbowski, 245 F.3d at 275 contract. The complaint does not (“[W]hen the doctrine of complete expressly refer to ERISA and the rights or preemption does not apply, but the immunities created under ERISA are not plaintiff’s state claim is arguably elements, let alone essential elements, of preempted under § 514(a), the district the plaintiff’s claims. The possibility—or court, being without removal jurisdiction, even likelihood—that ERISA’s pre- cannot resolve the dispute regarding emption provision, 29 U.S.C. § 1144(a), preemption.” (internal quotation omitted)).

F.3d 113, 115 (3d Cir. 1997); Airco Indus. IV. Gases, Inc. Div. of the BOC Group, Inc. v. Although the we ll-ple a d ed Teamsters Health & Welfare Pension complaint rule would ordinarily bar the Fund, 850 F.2d 1028, 1033-34 (3d Cir. removal of an action to federal court where 1988); N.E. Dep’t ILGWU Health & federal jurisdiction is not presented on the Welfare Fund v. Teamsters Local Union face of the plaintiff’s complaint, the action No. 229 Welfare Fund, 764 F.2d 147, 154- may be removed if it falls within the 55 (3d Cir. 1985) (Becker, J., writing for narrow class of cases to which the doctrine himself). These cases, however, do not of “complete pre-emption” applies. Aetna support the Plan’s argument that removal Health Inc. v. Davila, 542 U.S. __, No. 02- is proper because “suits between plans and 1845, slip op. at 5 (June 21, 2004); Metro. third parties imp licating ben efits Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64 administration ‘arise under’ ERISA’s (1987). As a “corollary of the federal common law.” Appellee’s Br. at well-pleaded complaint rule,” complete 54. Instead, the plaintiffs in these cases pre-emption recognizes “that Congress deliberately invoked federal ERISA may so completely pre-empt a particular jurisdiction. See Bollman Hat, 112 F.3d at area that any civil complaint raising this 115 (lawsu it seeking to enf orce select group of claims is necessarily subrogation provision in ERISA plan); federal in character.” Taylor, 481 U.S. at Airco, 850 F.2d at 1031 (amended 63-64; accord Anderson, 539 U.S. at 8 complaint asserting cause of action for (“When the federal statute completely unjust enrichment under ERISA); ILGWU, pre-empts the state-law cause of action, a 764 F.2d at 150, 154-55 (lawsuit seeking claim which comes within the scope of declaratory relief regarding the meaning of that cause of action, even if pleaded in terms in an ERISA plan). As such, their terms of state law, is in reality based on well-pleaded complaints necessarily arose federal law.”). under federal law. Here, the Hospital’s complaint asserts a state law claim for ER ISA’s civil enforc ement breach of contract, and the federal mechanism, § 502(a), “is one of those common law of ERISA does not provide provisions with such ‘extraordinary an element—essential or otherwise—of pre-emptive power’ that it ‘converts an such a claim. The Plan may be correct ordinary state common law complaint into that, in interpreting the Subscriber one stating a federal claim for purposes of Agreement, the federal common law of the well-pleaded complaint rule.’” Davila, ERISA displaces state law. Nevertheless, slip op. at 7 (quoting Taylor, 481 U.S. at potential defenses, even when anticipated 65-66). As a result, state law causes of in the complaint, are not relevant under the action that are “within the scope of . . . § well-pleaded complaint rule. Franchise 502(a)” are completely pre-empted and Tax Bd., 463 U.S. at 10-12. therefore removable to federal court. Taylor, 481 U.S. at 66; DiFelice, 346 F.3d

at 446. The Supreme Court has recently to determine whether a plaintiff has clarified the inquiry in such cases: artfully pleaded his suit so as to couch a federal claim in terms of state law.” It follows that if an Pryzbowski, 245 F.3d at 274 (internal individual brings suit quotation omitted). complaining of a denial of coverage for medical care, A. where the individual is We conclude that the Hospital entitled to such coverage could not have brought its claims under § only because of the terms of 502(a) because the Hospital does not have an ERISA-regulated standing to sue under that statute. Section employee benefit plan, and 502(a) of ERISA allows “a participant or where no legal duty (state or beneficiary” to bring a civil action, inter federal) independent of alia, “to recover benefits due to him under ERISA or the plan terms is the terms of his plan, to enforce his rights violated, then the suit falls under the terms of the plan, or to clarify within the scope of ERISA § his rights to future benefits under the terms 502(a)(1)(B). In other of the plan.” 29 U.S.C. § 1132(a)(1)(B). 5 words, if an individual, at By its terms, standing under the statute is some point in time, could limited to participants and have brought his claim under ERISA § beneficiaries.6 Franchise Tax Bd., 463 502(a)(1)(B), and where there is no other independent legal duty that 5 Section 502(a) provides other causes is im p l i c a te d by a of action not relevant on this appeal. The defendant’s actions, then the Plan makes no argument that the individual’s cause of action Hospital could have brought this action is completely pre-empted by under any other provision of § 502(a). ERISA § 502(a)(1)(B). 6 A participant is defined as

Davila, slip op. at 8 (internal quotation and any employee or former citation omitted). employee of an employer, or any member or former Accordingly, this case is removable member of an employee only if (1) the Hospital could have brought organization, who is or its breach of contract claim under § 502(a), may become eligible to and (2) no other legal duty supports the receive a benefit of any Hospital’s claim. Id. “[A] federal court type from an employee may look beyond the face of the complaint benefit plan which covers

U.S. at 27 (“ERISA carefully enumerates resolve this dispute, however, because the parties entitled to seek relief under § there is nothing in the record indicating 502 . . . .”). The parties agree that the Hospital is nether a participant nor a beneficiary, and that the Hospital does not ILGWU Court expressed “serious doubts have standing under ERISA to sue in its whether [the claimant] could assign own right. along with her substantive rights her The parties dispute whether, under right to sue in federal court,” id., the the law of this Circuit, the Hospital can Court could not so hold. obtain standing under § 502(a) by virtue of District courts in this Circuit have an assignment of a claim from a disagreed over the scope of ILGWU. participant or beneficiary.7 We need not Compare Allergy Diagnostics Lab. v. The Equitable, 785 F. Supp. 523, 526-27 & n.3 (W.D. Pa. 1991) (citing Footnote 6 employees of such of ILGWU for the proposition that employer or assignees of beneficiaries do not have members of such standing to sue under § 502(a)), and organization, or Health Scan, Ltd. v. Travelers Ins. Co., whose beneficiaries 725 F. Supp. 268, 269-70 (E.D. Pa. may be eligible to 1989) (same), with Commonwealth of receive any such Pa. Dep’t of Public Welfare v. Quaker benefit. Med. Care & Survivors Plan, 836 F. Supp. 314, 317 (W.D. Pa. 1993) 29 U.S.C. § 1002(7). A beneficiary is “a (observing that given the facts of person designated by a participant, or by ILGWU, Footnote 6 is non-binding dicta the terms of an employee benefit plan, in cases involving an actual assignment), who is or may become entitled to a and Charter Fairmount Inst., Inc. v. Alta benefit thereunder.” Id. § 1002(8). Health Strategies, 835 F. Supp. 233, 238 (E.D. Pa. 1993) (same). 7 In particular, the parties disagree Almost every circuit to have over whether this Court’s opinion in considered the question has held that a ILGWU forecloses derivative standing health care provider can assert a claim under § 502(a). Though the ILGWU under § 502(a) where a beneficiary or Court denied the claimant’s plan federal participant has assigned to the provider question jurisdiction to sue to recoup that individual’s right to benefits under paid medical benefits from a second the plan, see e..g., Tango Transport v. plan, 764 F.2d at 153, part of the Court’s Healthcare Fin. Servs., 322 F.3d 888, rationale was that the claimant had not, 891 (5th. Cir. 2003) (collecting cases), in fact, assigned her claim to her plan. but as the issue is not squarely before us, Id. at 154 n.6. Therefore, while the we express no opinion on it.

that Psaras and Rovetto did, in fact, assign contract claims, i.e., that the Plan has no any claims to the Hospital. contractual liability absent a valid assignment. The Plan’s argument may As the party seeking removal, the therefore entitle it to judgment on the Plan bore the burden of proving that the Hospital’s breach of contract claims in a Hospital’s claim is an ERISA claim. court of competent jurisdiction. It does DiFelice, 346 F.3d at 452. Accordingly, not, however, convert those breach of the Plan bore the burden of establishing contract claims into derivative claims for the existence of an assignment. Hobbs v. benefits under § 502(a).8 Blue Cross Blue Shield of Ala., 276 F.3d 1236, 1242 (11th Cir. 2001). The Plan Nor can we find an actual concedes that the record contains no assignment based on any other documents evidence of an express assignment, in the record. whether oral or written, from either Psaras Section 5 of the Summary Plan or Rovetto to the Hospital. Instead, the Description, entitled “How Benefits Will Plan argues that “[t]he MagNet contract Be Paid,” provides: “If you qualify for itself establishes the Hospital’s claim as an hospital care and are entitled to assignment from the participant.” reimbursement, and the hospital has sent Appellee’s Br. at 25. Essentially, the Plan in an assignment executed by you, we will argues that (1) under the Subscriber Agreement, “[the Hospital’s] only right to demand money from the Plan comes from 8 the participant’s assignment of her right to The parties vigorously dispute reimbursement,” Appellee’s Br. at 16, 24; whether the Subscriber Agreement (2) therefore, the Hospital must be suing requires the Hospital to obtain an on an assignment from Psaras and Rovetto. assignment before the Plan is obligated to make payment. We express no opinion on the merits of this dispute. The Plan’s argument is a non Nor do we express any opinion on other sequitur. Whether the Subscriber disputes regarding the interpretation of Agreement requires the Hospital to obtain the Subscriber Agreement. For example, an assignment in order to demand payment the Plan argues that there is no direct from the Plan says nothing about whether contractual relationship between itself an assignment was in fact made. Because and the Hospital. The question on appeal neither Psaras nor Rovetto are parties to is whether the Hospital could have the Subscriber Agreement, that document brought its claim under § 502(a). If it cannot, in and of itself, establish an could not, then removal was improper, assignment of their claims. At best, the and the Plan’s arguments on the merits, Plan’s interpretation of the Subscriber including its argument that no contract Agreement provides an affirmative exists, can only be adjudicated in state, defense to the Hospital’s breach of not federal, court.

pay the hospital directly . . . .” Thus, the could not have been brought under the Plan itself contemplates an independent act scope of § 502(a) and are not completely by which a participant or beneficiary pre-empted by ERISA. E.g., Hobbs, 276 assigns his or her claim to the Hospital. F.3d at 1243; Ward v. Alternative Health The record contains no evidence that Delivery Sys., Inc., 261 F.3d 624, 627 (6th Psaras or Rovetto undertook such an act. Cir. 2001); Harris v. Provident Life & Accident Ins. Co., 26 F.3d 930, 933-34 The Plan offers the certification of (9th Cir. 1994). Kathy Pridmore, the Plan’s Director of Medical Benefits, to support a finding of B. an assignment. Pridmore broadly declares We further conclude that the that, in her experience, the Plan has Hospital’s state law claims are predicated “consistently followed the claims and on a legal duty that is independent of claim review procedures” contained in the ERISA. See Davila, slip op. at 8. The Summary Plan Description. The Plan Hospital’s claims, to be sure, are derived argues that Pridmore’s declaration from an ERISA plan, and exist “only constitutes evidence of “routine practice” because” of that plan. Id. at 11. The crux that supports an inference of an of the parties’ dispute is the meaning of assignment. See Fed. R. Evid. 406. We Section 2.1 of the Subscriber Agreement, disagree. Pridmore does not declare that which governs payment for “Covered the Plan routinely receives assignments Services furnished to Eligible Persons.” prior to payment. In her recitation of the Were coverage and eligibility disputed in Plan’s “standard procedure for processing this case, interpretation of the Plan might claims,” she does not even mention the form an “essential part” of the Hospital’s execution of assignments by Plan claims. Id. participants or beneficiaries. As such, Pridmore’s certification cannot establish a Coverage and eligibility, however, routine practice relevant to this appeal, let are not in dispute. Instead, the resolution alone satisfy the Plan’s burden of of this lawsuit requires interpretation of establishing federal s ubjec t-matte r the Subscriber Agreement, not the Plan. jurisdiction by a preponderance of the The Hospital’s right to recovery, if it evidence. exists, depends entirely on the operation of third-party contracts executed by the Plan Because the Plan has failed to that are independent of the Plan itself. Cf. demonstrate that the Hospital obtained an Caterpillar Inc. v. Williams, 482 U.S. 386 assignment from Psaras and Rovetto, we (1987) (suit for breach of individual do not reach the “standing-by-assignment employment contract, even if defendant’s of claim” issue. Therefore, the Plan action also constituted a breach of an cannot demonstrate that the Hospital has entirely separate collective bargaining standing to sue under § 502(a). As a agreement, not pre-empted by § 301 of the result, the Hospital’s state law claims

Labor Management Relations Act). not fall within § 502(a)(1)(B).” Id. at 1050. The court explained: We find instructive the Ninth Circuit’s opinion in Blue Cross of [T] he Providers are California v. Anesthesia Care Associates a s s e r ti n g c o n t r a c tu a l Medical Group, Inc., 187 F.3d 1045 (9th breaches . . . that their Cir. 1999). In that case, the court held that patient-assignors could not claims asserted by health care providers assert: the patients simply against a health care plan for breach of are not parties to the their provider agreements were not provider agreements completely pre-empted under ERISA. Id. between the Providers and at 1051-52. The court reached this Blue Cross. The dispute conclusion notwithstanding “the fact that here is not over the right to these medical providers obtained payment, which might be assignments of benefits from beneficiaries said to depend on the of ERISA-covered health care plans.” Id. patients’ assignments to the at 1047, 1052. Providers, but the amount, or level, of payment, which The litigation in Anesthesia Care depends on the terms of the arose from a fee dispute between four provider agreements. health care providers and Blue Cross. Id. at 1048. Blue Cross had entered into “provider agreements” with physicians in Id. at 1051 (first emphasis added). which Blue Cross agreed to identify the Because the Providers asserted “state law providers in the information it distributed claims arising out of separate agreements to beneficiaries of the plan and to direct for the provision of goods and services,” beneficiaries to those providers. In return, the court found “no basis to conclude that the providers agreed to accept payment for the mere fact of assignment converts the services rendered to ben eficiaries Providers’ claims into claims to recover according to specified fee schedules. benefits under the terms of an ERISA When Blue Cross attempted to change the plan.” Id. at 1052.9 fee schedules, the providers filed a class action in state court alleging a breach of the provider agreements. Id. at 1049. 9 The reasoning in Anesthesia Care The Ninth Circuit held that “the was followed in Orthopaedic Surgery Providers’ claims, which arise from the Associates of San Antonio, P.A. v. terms of their provider agreements and Prudential Health Care Plan, Inc., 147 could not be asserted by their patient- F. Supp. 2d 595 (W.D. Tex. 2001). The assignors, are not claims for benefits under facts in Orthopaedic Surgery are nearly the terms of ERISA plans, and hence do identical to this case. In Orthopaedic Surgery, health care providers entered

The facts of this case are similar to the [Subscriber Agreement].” Id. at 1051. Anesthesia Care in important respects: (1) the Hospital’s claims in this case arise from the terms of a contract—the Subscriber Agreement— that is allegedly C. independent of the Plan; (2) the We have not overlooked the participants and beneficiaries of the Plan apparent convergence between the do not appear to be parties to the Hospital’s breach of contract claim and a Subscriber Agreement; and (3) “[t]he claim for benefits under § 502(a). Because dispute here is not over the right to the Plan is a reimbursement plan, the payment, which might be said to depend payments made to the Hospital are the on the patients’ assignments to the benefits received by Psaras and Rovetto [Hospital], but the amount, or level, of under the Plan. As a result, it would payment, which depends on the terms of appear that any claims the Hospital could have obtained by assignment from Psaras and Rovetto would be for the same amount into contracts with a healthcare plan, as the breach of contract claims that are Prudential. Under the contracts, the subject of this appeal. Moreover, had Prudential agreed to pay the providers for the Hospital successfully sued Psaras and services rendered to beneficiaries of the Rovetto for the payments due, it would plan. When Prudential allegedly paid the appear that any claims for reimbursement providers less than the agreed upon that Psaras and Rovetto would have amount, the providers sued for breach of against the Plan would be claims for the physician agreements. Orthopaedic benefits under § 502(a). Indeed, one of the Surgery, 147 F. Supp. 2d at 597. The principal reasons why courts have allowed District Court in Orthopaedic Surgery participants and beneficiaries to assign remanded the case to state court, their claims under § 502(a) is to avoid the concluding that § 502(a) did not necessity of providers suing patients in the completely pre-empt the providers’ first instance. See Cagle, 112 F.3d at claims. Citing Anesthesia Care, the 1515. court characterized the providers’ claims Nevertheless, the absence of an as “claim[s] for the amount or level of assignment is dispositive of the complete payment and not the right to payment.” pre-emption question. Although the Id. at 601. The court rejected Hospital “may not defeat removal by Prudential’s argument that, since the omitting to plead necessary federal medical services that were allegedly questions in a complaint,” Franchise Tax unpaid were provided to participants or Bd., 463 U.S. at 22, it is clear that the beneficiaries of ERISA plans, the Hospital is asserting a claim that could not providers’ claims sought benefits payable be asserted under the civil enforcement under the terms of those plans.

provision of ERISA. It may very well be Pascack Valley Hospital, Inc. v. Local that the Hospital’s breach of contract claim 464A against the Plan will fail under state law, No. 03-4196 or that the Hospital’s state law claims are pre-empted under § 514(a). These matters, ALITO, Circuit Judge, concurring in the however, go to the merits of the Hospital’s judgment. breach of contract claim, which can only I concur in the judgment based on be adjudicated in state court. the decision in N.E. Dept’t ILGWU IV. Health & Welfare Fund v. Teamsters Local Union No. 229 Welfare Fund, 764 Under the well-pleaded complaint F.2d 147 (3d Cir. 1985). Although there is rule, the Hospital’s complaint does not now substantial contrary authority, we are present a federal question that would bound by prior panel decisions of our support removal. The complaint does not Court until they are overruled. expressly refer to ERISA or the federal common law of ERISA, and the rights or The Court avoids the question immunities created under ERISA are not whether an assignee can assert a claim elements, let alone essential elements, of under Section 502(a)(1)(B) of ERISA, 29 the plaintiff’s claims. Moreover, the U.S.C. § 1132(a)(1)(B), by holding that Hospital’s state law breach of contract there is insufficient evidence to support a claims are not completely pre-empted by finding that there were assignments in this ERISA’s civil enforcement provision, case. I disagree. While the summary because the Hospital could not have judgment record does not contain any brought its claims under that provision. express assignments of the claims at issue, Accordingly, removal in this case was there is ample evidence to support a improper, and the order of the District finding that the claims were assigned to Court denying remand will be vacated. the Hospital. What happened here is very We will remand this case to the District common. Participants of a health care Court with instructions that the District plan received treatment from a provider; Court, in turn, remand to the Superior the participants did not pay for those Court of New Jersey. services but instead gave the provider the information needed to bill their plan; the provider then billed the plan pursuant to a contract obligating the plan to pay the provider on the assigned claims of participants; and the plan paid, albeit at a discounted rate. These facts are more than sufficient to prove that the claims were implicitly assigned to the provider. In holding that the summary judgment record

is insufficient to prove assignments, the Court ignores the obvious reality of the situation.