Jason Springer v. Cleveland Clinic Employee Health Plan Total Care

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 18a0169p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JASON SPRINGER,
Plaintiff-Appellant,
v.
CLEVELAND CLINIC EMPLOYEE HEALTH PLAN TOTAL
CARE,
Defendant-Appellee.
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No. 17-4181
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 1:15-cv-00020—Christopher A. Boyko, District Judge.
Argued: June 13, 2018
Decided and Filed: August 14, 2018
Before: COLE, Chief Judge; CLAY and THAPAR, Circuit Judges.
_________________
COUNSEL
ARGUED: Drew Legando, LANDSKRONER GRIECO MERRIMAN LLC, Cleveland, Ohio,
for Appellant. Jeffrey J. Wedel, ZASHIN & RICH CO., L.P.A., Cleveland, Ohio, for Appellee.
Christine D. Han, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for
Amicus Curiae. ON BRIEF: Drew Legando, LANDSKRONER GRIECO MERRIMAN LLC,
Cleveland, Ohio, for Appellant. Jeffrey J. Wedel, ZASHIN & RICH CO., L.P.A., Cleveland,
Ohio, for Appellee. Marcia Bove, UNITED STATES DEPARTMENT OF LABOR,
Washington, D.C., for Amicus Curiae.
COLE, C.J., delivered the opinion of the court in which CLAY and THAPAR, JJ., joined.
THAPAR, J. (pp. 9–12), delivered a separate concurring opinion.
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_________________
OPINION
_________________
COLE, Chief Judge. Sometimes it’s easier to seek forgiveness than permission. Jason
Springer hoped as much when he arranged air ambulance transportation for his son before his
employee benefit plan could verify his membership and authorize the service. But the plan
administrator denied Springer’s claim for coverage because he did not obtain the precertification
required for nonemergency transportation. The district court affirmed and alternatively found
that Springer did not suffer an injury to have Article III standing. Although Springer has standing
to bring his claim, we agree that the plain language of the plan required precertification. We
affirm.
I. BACKGROUND
Jason Springer, a physician in Utah, began a fellowship at the Cleveland Clinic in Ohio
on July 1, 2010. He enrolled his family in its employee benefit plan, which was administered by
Antares Management Solutions. Springer’s coverage began on July 1 but required about fifteen
business days to process enrollment paperwork. The plan provided that claims rendered during
the enrollment period “may be denied” but “will be adjusted on the backend when [Antares]
processes your benefit selections data.” (Id.)
On July 7, Springer had his fourteen-month-old son, J.S., transported from a Utah
hospital to the Cleveland Clinic by Angel Jet’s air ambulance service. J.S. had been hospitalized
since birth for multiple congenital abnormalities, including omphalocele (protrusion of
abdominal organs from the navel) and pulmonary hypoplasia (underdeveloped lungs). He
required a mechanical ventilator to breathe.
J.S.’s physician prepared a letter of medical necessity for the air ambulance service. He
explained that J.S. could not be safely transported by any other means because of the distance
and his health conditions, which required close monitoring for suctioning of secretions, potential
airway compromise, and possible respiratory failure. The letter, dated June 3, found that J.S. was

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“stabilized for transfer and will continue to progress with continued care.” (R. 15-2, PageID
150.)
Before the flight, Angel Jet sought coverage information from Antares. Antares was
unable to confirm that Springer and his son were members of the plan while their enrollment
paperwork was processing and did not precertify the air ambulance service. Angel Jet decided to
proceed with the transportation on July 7 and submitted a bill to Antares for $340,100. After
initially approving the claim, Antares denied it a few days later for failure to obtain
precertification.
Angel Jet appealed the determination to Cleveland Clinic Employee Health Plan Total
Care (“Total Care”). Total Care affirmed the denial but issued Angel Jet a check for $34,451.75,
approximately ten percent of the billed charges. Total Care explained that the payment was “an
attempt to be fair” and reflected the amount their preferred provider of air ambulance services
would have charged. (R. 17-28, PageID 729; R. 16-15, PageID 325.) The Advisory Committee,
which exercises the final level of appeal under the plan, affirmed.
Angel Jet brought suit under the Employee Retirement Security Act (“ERISA”) for the
remainder of its $340,100 bill. The district court dismissed the suit, finding that Springer had not
properly assigned his rights under the plan to Angel Jet. Angel Jet Services, LLC v. Cleveland
Clinic Emp. Health Plan Total Care, 34 F. Supp. 3d 780, 783 (N.D. Ohio 2014). Springer then
brought his own claim as a plan participant under ERISA Section 502(a)(1)(B). The district court
affirmed the plan’s denial of benefits. The court found that Springer did not suffer an injury to
have Article III standing because he received the air ambulance service and was not personally
billed for any of the expenses. Even if Springer had standing, the court alternatively concluded
that the determination was not arbitrary and capricious because J.S.’s transportation was not an
emergency or precertified as required for a nonemergency.
Springer now appeals.

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II. ANALYSIS
A. Article III Standing
We must first decide whether we have jurisdiction to review Springer’s claim. To meet
the requirements for Article III standing, Springer bears the burden of showing: (1) an injury in
fact that is “concrete and particularized” and “actual or imminent,” (2) that the injury is fairly
traceable to the challenged action of the defendant, and (3) that the injury is likely to be
redressed by a favorable decision. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547–48 (2016). The
parties only dispute whether Springer suffered a concrete injury when Angel Jet did not bill him
for the air ambulance service.
Springer suffered an injury within the meaning of Article III because he was denied
health benefits he was allegedly owed under the plan. Like any private contract claim, his injury
does not depend on allegation of financial loss. His injury is that he was denied the benefit of his
bargain. Springer purchased a health plan that said it would “pay 100% for transportation—
including . . . air ambulance,” but Total Care only paid about ten percent of his air ambulance
expense. (R. 15-1, PageID 103.) The plan confers standing to appeal a determination in that
circumstance (id. at PageID 136), while ERISA enforces his right “to recover benefits due to him
under the terms of his plan” in a civil action. 29 U.S.C. § 1132(a)(1)(B).
Every circuit court to consider this issue agrees that a plaintiff in Springer’s shoes does
not need to suffer financial loss. The Fifth, Ninth, and Eleventh Circuits have each held that the
denial of plan benefits is a concrete injury for Article III standing even when patients were not
directly billed for their medical services. North Cypress Med. Ctr., Operating Co., Ltd. v. Cigna
Healthcare, 781 F.3d 182, 192–94 (5th Cir. 2015); Spinedex Physical Therapy USA Inc. v.
United Healthcare of Arizona, Inc., 770 F.3d 1282, 1289–91 (9th Cir. 2014); HCA Health Servs.
of Georgia, Inc. v. Employers Health Ins. Co., 240 F.3d 982, 991 (11th Cir. 2001), overruled on
other grounds by Doyle v. Liberty Life Assur. Co. of Boston, 542 F.3d 1352 (11th Cir. 2008). For
example, in North Cypress, a hospital had standing to bring an ERISA claim seeking coverage
from a plan even though the patient-assignors “were never at imminent risk of out-of-pocket
expenses.” 781 F.3d at 192. The court concluded that a patient-assignor suffers a concrete injury

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whenever she is denied “use of funds rightfully hers” or “the benefit of her bargain,” “regardless
of whether she has directed the money be paid to a third party for her convenience.” Id. at 193.
The injury therefore stemmed from traditional principles of contract law that did not depend on
financial harm.
Total Care argues that these cases are distinguishable because they concern the standing
of assignors rather than the participants themselves. Springer did not perfect his earlier attempt to
assign his rights under the plan to Angel Jet and brought this claim on his own behalf. But the
reason those courts found standing is because assignees acquire the same legal right as
participants to seek payment directly from the plans. North Cypress, 781 F.3d at 193; Spinedex,
770 F.3d at 1291; HCA, 240 F.3d at 991. Non-participant health care providers cannot bring their
own ERISA claims—they do so derivatively, relying on the participants’ contractually defined
rights and therefore the participants’ standing at the time of the assignment. Spinedex, 770 F.3d
at 1289. As the Ninth Circuit explained, if the plaintiffs in question were the participants
themselves, “they would have had an unquestioned right to bring suit for benefits.” Id. at 1291.
“No one”—except Total Care—“would contend that the beneficiaries would have lacked Article
III standing in that circumstance.” Id.
Total Care also argues that standing here would be inconsistent with our decision in
Soehnlen. See Soehnlen v. Fleet Owners Ins. Fund, 844 F.3d 576 (6th Cir. 2016). In Soehnlen,
we held that a class of plaintiffs did not have Article III standing to challenge their plan’s benefit
caps because they alleged procedural violations of ERISA “without showing which specific
fiduciary duty or specific right owed to them was infringed.” Id. at 585. The plaintiffs did not
assert that they exercised any right under the plan that would be impeded by its noncompliance
with ERISA and merely argued “that the pecuniary limitations imposed by the Plan exist.” Id. at
582 (citations omitted). Unlike those plaintiffs, Springer does not allege bare procedural
violations unconnected to an individual right under the plan. There is no dispute that Springer
alleges a specific contractual right owed to him and his son as plan participants.
Springer has therefore suffered a concrete injury sufficient for Article III standing.

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B. Standard of Review
We review an ERISA claim for denial of benefits de novo “unless the benefit plan gives
the administrator or fiduciary discretionary authority to determine eligibility for benefits or to
construe the terms of the plan.” Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 115
(1989). The Supreme Court “has made it abundantly clear that discretion is not the norm.”
Anderson v. Great West Life Assur. Co., 942 F.2d 392, 394 (6th Cir. 1991) (emphasis in original)
(citing Firestone, 489 U.S. at 112). The plan must therefore confer discretion “expressly” and
“clear[ly]” for arbitrary and capricious review to apply. Johnson v. Eaton Corp., 970 F.2d 1569,
1571 (6th Cir. 1992) (citations omitted). Otherwise, “[d]e novo review is the default rule.”
Anderson, 942 F.2d at 395.
Antares does not have a clear grant of discretionary authority under the plan. The plan
assigns Antares seven discrete tasks in its capacity as third-party administrator, including
“[m]ember eligibility verification” and “[b]enefit coverage determinations.” (R. 15-1, PageID
85.) The district court found that responsibility sufficient to apply arbitrary and capricious review
based on our decision in Emerson, where a plan parroted the language of our precedent in
granting the administrator “the discretionary authority to determine eligibility for benefits or to
construe the terms of the Plan.” Univ. Hosps. of Cleveland v. Emerson Elec. Co., 202 F.3d 839,
845–46 (6th Cir. 2000). But without that express grant, we have rejected the proposition “that the
right to make coverage determinations presupposes discretionary authority.” Tiemeyer v.
Community Mut. Ins. Co., 8 F.3d 1094, 1099 (6th Cir. 1993); see also Wulf v. Quantum Chemical
Corp., 26 F.3d 1368, 1373–74 (6th Cir. 1994). Following a checklist is not the same as defining
the checklist.
The Advisory Committee does not appear to have a clear grant of discretionary authority
either. Relying on our decision in Eaton, Total Care argues that arbitrary and capricious review
applies because the Advisory Committee has final and binding review of third-level appeals. See
Eaton, 970 F.2d at 1572. But Eaton also involved an express grant of discretionary authority,
conferring the final review committee with “all such powers and authority as may be necessary
to carry out the provisions of this plan.” Id. at 1571–72. Unlike that administrator, the Advisory
Committee may not be involved in the determinations process at all. The plan only recognizes its

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role when a dispute “cannot be resolved” in two earlier appeals, which are subject to Total
Care’s own “final and binding” review. (R. 15-1, PageID 136.) That singular authority is “quite
distinct from the issue whether the [p]lan confers a zone of discretion on the administrator with
respect to the content and standards for decision making.” Ramsey v. Hercules Inc., 77 F.3d 199,
206 (7th Cir. 1996).
In any case, we do not need to resolve whether the plan language is sufficiently clear to
overcome the presumption of de novo review. Springer’s claim fails under either standard.
C. Eligibility for Coverage
Springer has not demonstrated that he was entitled to reimbursement for the air
ambulance service. Even applying de novo review, the plain language of the plan precludes his
claim.
The plan unambiguously requires precertification as a condition of coverage. The
provision Springer relies upon states that the plan “will pay 100% for transportation—including
. . . air ambulance” for a sick or injured member outside of the Cleveland area, but “[t]his type of
transportation to a Cleveland Clinic Hospital must meet the precertification process.” (R. 15-1,
PageID 103.) A claim submitted during the enrollment period is “adjusted on the backend” but
not exempt from precertification. (R. 15-1, PageID 79.) The plan explains in bold-face,
capitalized, and italicized font: “If precertification is required and NOT obtained, EHP Total
Care is not obligated to reimburse for services even if it is a covered benefit.” (R. 15-1,
PageID 130 (emphasis in original).) In case that were not clear, the plan reiterates: “If the
member does not participate in the precertification process before obtaining the service there will
be NO REIMBURSEMENT for the service.” (Id. at PageID 98 (emphasis in original).) The
weary-eyed could not overlook the requirement.
J.S.’s transportation was not an emergency to otherwise sidestep the precertification
process. The plan defines an “emergency” as a medical condition reasonably expected to result
in serious harm in “the absence of immediate medical attention.” (R. 16-18, PageID 420.) There
is no evidence in the record that J.S. required “immediate medical attention” on July 7 and could
not wait another week or so for his enrollment paperwork to be processed. To the contrary, the

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physician’s letter of medical necessity—dated June 3—stated that J.S. was stable and planned for
his transportation on a date scheduled over a month later.
Springer argues that precertification should nonetheless be excused as “impossible”
during the enrollment period because his membership could not be verified. Under ERISA
regulations, denial of a claim for failure to obtain precertification would be unreasonable “under
circumstances that would make obtaining such prior approval impossible or where application of
the prior approval process could seriously jeopardize the life or health of the claimant.” 29
C.F.R. § 2560.503-1(b)(3). The example provided is an unconscious claimant “in need of
immediate care at the time medical treatment is required.” Id. In other words, a plan should
provide an exception for emergency situations—and the plan here does that. The regulations do
not require a plan to also exempt nonemergency services and effectively forego any
precertification requirement. Nor was the processing period an unforeseeable event that made
compliance impossible under general principles of contract law. The plan provides notice that
“claims may be denied” in the period of “approximately 15 business days from the time your
paperwork is received by Human Resources to the time your benefit selection is processed.” (R.
15-1, PageID 79.)
Because Springer did not show the transportation was an emergency or obtain the
precertification required for a nonemergency, he was not entitled to reimbursement under the
plan.
III. CONCLUSION
We affirm the judgment of the district court.

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_________________
CONCURRENCE
_________________
THAPAR, Circuit Judge, concurring. When Dr. Jason Springer sued for breach of
contract, he was attempting to vindicate his own private rights rather than the rights of the public
at large. As such, he did not need to demonstrate concrete and particularized harm to satisfy
standing. An invasion of his legal rights was enough. I write separately to explain why.
When the Cleveland Clinic hired Dr. Springer, he enrolled his family in the Cleveland
Clinic’s employee benefit plan (“Total Care”). As part of his family’s relocation from Utah, he
needed to transport his infant son—who has been hospitalized since birth—by air ambulance.
The plan, however, required him to obtain pre-approval. He did not. Thus, Total Care denied
his reimbursement claim—leaving Dr. Springer on the hook for the full cost. The air ambulance
service, however, never charged (or threatened to charge) Dr. Springer a dime. As a result, Total
Care alleges that he has suffered no damages and does not have standing to sue.
In discussing standing, courts (and litigants) often lose sight of the first principles that
animate the doctrine. Standing is about the limits of judicial power. The federal judiciary only
has the power to decide “Cases” or “Controversies”—all other disputes are left to the political
branches. U.S. Const. art. III; Vt. Agency of Nat. Res. v. U.S. ex rel. Stevens, 529 U.S. 765, 771
(2000) (explaining that standing is an “‘essential and unchanging part’ of Article III’s case-or-
controversy requirement, and a key factor in dividing the power of government between the
courts and the two political branches” (citation omitted)). In order for a dispute to be a case or
controversy, the party bringing the claim must have standing, or, in other words, they must be the
appropriate party to file suit. If a party brings a claim to vindicate their private rights, standing
can be straightforward. Since the founding, a lawsuit seeking to vindicate an individual’s private
rights has counted as a case or controversy for purposes of Article III. See Spokeo, Inc. v.
Robins, 136 S. Ct. 1540, 1551 (2016) (Thomas, J., concurring); 1 William Blackstone,
Commentaries on the Laws of England *119 (describing private rights as those that “appertain
and belong to particular men, merely as individuals or single persons”). As a private right, it
would be their right to vindicate. But a lawsuit seeking to vindicate a public right presents a

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harder question. When a plaintiff seeks to vindicate a right belonging “to the people at large,”
there is always a risk that he will call upon the courts to test the abstract legality of the
government’s actions. Lansing v. Smith, 4 Wend. 9, 21 (N.Y. 1829); see also Spokeo, 136 S. Ct.
at 1553 (Thomas, J., concurring). And weighing in on the abstract legality of a government
action pushes the court into the forbidden territory of the other branches. After all,
“[v]indicating the public interest (including the public interest in Government observance of the
Constitution and laws) is a function of Congress and the Chief Executive,” not the courts. Lujan
v. Defenders of Wildlife, 504 U.S. 555, 576 (1992) (emphasis omitted). So to ensure that the
plaintiff bringing a public-rights lawsuit presents a true case or controversy (i.e., that they are the
appropriate party to file this public-rights lawsuit), the plaintiff must show that he has actually
suffered a concrete and particularized harm. Id. at 560.
Since the requirements of standing turn on whether the plaintiff seeks to vindicate a
private or public right, the first step in any standing case is to classify the asserted right. An easy
way to think of this distinction is to think of criminal and tort law. Imagine that Sam punches
Jon in the face. He has harmed both the public (by committing a crime) and Jon (by committing
a battery). While Jon cannot bring criminal charges against Sam, Jon can bring a private tort
suit. Now imagine Jon’s face is made of steel and Sam’s punch bounces right off. Jon has no
harm in the traditional sense, but since his “personal, legal rights [have been] invaded,” he may
still sue. See Spokeo, 136 S. Ct. at 1551 (Thomas, J., concurring) (“[C]ourts historically
presumed that the plaintiff suffered a de facto injury merely from having his personal, legal
rights invaded.” (citations omitted)); see also 3 Blackstone, Commentaries at *120 (noting that
battery was actionable whether or not the victim felt pain). But Jon can neither prosecute Sam
nor ask the court to force the executive to do so. See Lujan, 504 U.S. at 577 (“To permit
Congress to convert the undifferentiated public interest in executive officers’ compliance with
the law into an ‘individual right’ vindicable in the courts is to permit Congress to transfer from
the President to the courts the Chief Executive’s most important constitutional duty, to ‘take
Care that the Laws be faithfully executed.’” (citations omitted)).
So how do courts determine whether a litigant has asserted a private right? We look back
to the rights that common law courts allowed private litigants to enforce. See, e.g., Coleman v.

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Miller, 307 U.S. 433, 469–70 (1939). And in cases ranging from assault to trespass to slander,
there was no question that private litigants could vindicate their rights before a court. See De S.
& Wife v. W. de S., (1348 or 1349) Y.B. 22 Edw. 3, f. 99, pl. 60 (assault); Robert Marys’s Case,
(1613) 77 Eng. Rep. 895 (K.B.) (trespass); Crittal v. Horner, (1618) 80 Eng. Rep. 366 (K.B.)
(slander). This was true regardless of whether a violation of the private right caused a concrete
or particularized harm—the violation alone was enough to justify a judicial remedy. See
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803) (Marshall, C.J.) (“[I]t is a general and
indisputable rule, that where there is a legal right, there is also a legal remedy by suit or action at
law, whenever that right is invaded.” (quoting 3 Blackstone, Commentaries *23)).1
Here, Dr. Springer sued to vindicate his private rights. He claimed that Total Care denied
him health insurance benefits under his ERISA plan. Those health benefits represent a
bargained-for exchange that vest in Dr. Springer as an individual. And when rights vest in an
individual—rather than the whole community—we consider those rights “private.”
3 Blackstone, Commentaries *2; Francis Plowden, Jura Anglorum 487–88 (1792). Dr. Springer
does not share his health benefits the same way he shares, say, waterway transportation. His
health benefits do not belong to “the people at large.” Lansing, 4 Wend. at 21. No one else can
claim his contractual rights, and prior litigation in this case even confirms that point. See Angel
Jet Servs., LLC v. Cleveland Clinic Emp. Health Plan Total Care, 34 F. Supp. 3d 780, 783 (N.D.
Ohio 2014).
Moreover, the fact that ERISA governs this action does not transform Dr. Springer’s
private right into a public one. After all, Congress can create civil remedies for private rights.
E.g., Huntington v. Attrill, 146 U.S. 657, 676–77 (1892) (“But as [the statute] gives a civil
remedy, at the private suit of the creditor only, and measured by the amount of his debt, it is as to
1See also Webb v. Portland Mfg. Co., 29 F. Cas. 506, 507–08 (C.C.D. Me. 1838) (Story, J.) (“Actual,
perceptible damage is not indispensable as the foundation of an action. The law tolerates no farther inquiry than
whether there has been the violation of a right.”); Whittermore v. Cutter, 29 F. Cas. 1120, 1121 (C.C.D. Mass. 1813)
(Story, J.) (“[W]here the law gives an action for a particular act, the doing of that act imports of itself a damage to
the party. Every violation of a right imports some damage, and if none other be proved, the law allows a nominal
damage.”); Ashby v. White, (1703) 92 Eng. Rep. 126, 137 (Q.B.) (Holt, C.J., dissenting) (“[S]urely every injury
imports a damage, though it does not cost the party one farthing, . . . for a damage is not merely pecuniary, but an
injury import damage, when a man is thereby hindered of his right.”); Green v. Cole, (1670) 85 Eng. Rep. 1037
(K.B.); Joseph Story, Commentaries on the Law of Agency § 217 (“Where the breach of duty is clear, it will . . . be
presumed, that the party has sustained a nominal damage.”).

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him clearly remedial. To maintain such a suit is . . . simply to enforce a private right secured
under its laws to an individual.”). Here, ERISA does not give Dr. Springer his rights; the health
plan does. ERISA merely provides a mechanism through which Dr. Springer can enforce those
underlying, bargained-for rights. See Mass. Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 148
(1985) (claiming that Congress created ERISA to “protect contractually defined benefits”).
Using this mechanism, Dr. Springer essentially pled a breach-of-contract claim. And common
law courts historically analyzed contractual claims using a private-rights framework. Marzetti v.
Williams, (1830) 109 Eng. Rep. 842, 845 (K.B.) (“It is immaterial in such a case whether the
action in form be in tort or in assumpsit. It is substantially founded on a contract; and the
plaintiff, though he may not have sustained a damage in fact, is entitled to recover nominal
damages.”); see also Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798) (Chase, J.) (“The
prohibitions . . . not to pass any law impairing the obligation of contracts, [was] inserted to
secure private rights.”).2 They entertained breach-of-contract claims even when “no real loss be
proved.” Clinton v. Mercer, 7 N.C. (3 Murr.) 119, 120 (N.C. 1819); accord Wilcox v. Plummer’s
Ex’rs, 29 U.S. (4 Pet.) 172, 182 (1830). Such violations at least deserved nominal damages
because the offender had invaded a private right. E.g., Marzetti, 109 Eng. Rep. at 845.
Because Dr. Springer seeks to vindicate a private right against Total Care, he has
standing to sue under Article III. And, as the majority correctly notes, he loses on the merits. As
such, I concur.
2Sometimes courts analyze ERISA claims using trust law. E.g., Firestone Tire & Rubber Co. v. Bruch,
489 U.S. 101, 110–11 (1989) (“ERISA abounds with the language and terminology of trust law.”). Although Dr.
Springer’s case more closely resembles a breach-of-contract claim, even construing his suit as a fiduciary-duty claim
under trust principles would not defeat standing. Here, too, courts treated fiduciary claims as vindicating private
rights. See, e.g., Keech v. Sandford, (1726) 25 Eng. Rep. 223 (Ch.).

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