author: SMITH, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee v. James Patrick NEEDHAM, Defendant-Appellant
    No. 16-1027
    United States Court of Appeals, Eighth Circuit.
    Submitted: October 21, 2016
    Filed: March 31, 2017
    Rehearing and Rehearing En Banc Denied May 9, 2017

      Counsel who presented argument on behalf of the ^appellant was Douglas Olson, AFPD, of Minneapolis, MN. The following attorney(s) appeared on the appellant brief; Douglas Olson, AFPD, of Minneapolis, MN.
    Counsel who presented argument on behalf of the appellee was Laura M. Pro-vinzino, AUSA, of Minneapolis, MN. The following attorney(s) appeared on the ap-pellee brief; Laura M. Provinzino, AUSA, of Minneapolis, MN.
    Before LOKEN, SMITH, and COLLOTON, Circuit Judges.

      . The Honorable Lavenski R. Smith became Chief Judge of the United States Court of Appeals for the Eighth Circuit on March 11, 2017.

   SMITH, Circuit Judge.

A jury convicted James Needham of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2), and distribution of child pornography, in violation of 18 U.S.C. § 2252(a)(2) and (b)(1). The district court sentenced Need-ham to two concurrent 120-month sentences and 15 years’ supervised release. On appeal, Needham challenges the district court’s (1) evidentiary rulings, (2) rejection of his requested definition of “distribute,” and (3) denial of his motion for new trial and request for an evidentiary hearing on juror misconduct. For the reasons discussed below, we affirm.

I. Background

In 2010, the National Center for Missing and Exploited Children received complaints of suspected child pornography on various GROU.PS websites. GROU.PS is a social-networking platform that enables users to create online groups' through which group members can share images and videos.

Based on these complaints, the FBI began investigating the reported GROU.PS sites. Special Agent Daniel O’Donnell and his team accessed these sites, including one particular group named “boy2kid,” using an administrative account. Special Agent O’Donnell verified that boy2kid’s default album contained images of child pornography. In September 2010, the FBI executed a search warrant at GROU.PS’s headquarters and obtained information concerning boy2kid and other groups suspected of distributing child pornography. The information recovered included videos, images, chat messages, and comments; group members’ profile names, e-mail addresses, and Internet Protocol (IP) addresses; and dates and times of activity on the groups.

A. Evidence of Possession and Distribution of Child Pornography

Upon searching GROU.PS, agents discovered GROU.PS had disabled the public version of the boy2kid group. Despite its removal from public access, the data for the boy2kid group remained stored on the GROU.PS server. Special Agent O’Donnell accessed the preserved version of the site and took a screenshot of how the boy2kid group appeared to its members.

At trial, the government introduced, and the district court admitted, this screenshot over Needham’s foundation and hearsay objections. Special Agent O’Donnell testified that aside from a slight difference in background color, the screen-shot accurately represented how the boy2kid group appeared before GROU.PS disabled the public link. Specifically, Special Agent O’Donnell stated the “content and categories [depicted in the screenshot] were exactly the same” as that on the formerly public boy2kid group.

The screenshot of boy2kid group showed that a member known as “rezchub61” uploaded 11 images containing child pornography to the group’s default album. Special Agent O’Donnell took a screenshot of rezchub61’s profile page, which was admitted over Needham’s- foundation, hearsay, relevance, and Confrontation Clause objections.

Special Agent O’Donnell testified that GROU.PS provided him the IP address that rezchub61 used when uploading child pornography to the boy2kid group and the e-mail address associated with rezchub61’s member account (“rezchub61@yahoo. com”). Using this information, Special Agent O’Donnell subpoenaed the Internet service provider (ISP) associated with rezchub61’s IP address and learned that James Needham was the only customer connected to that IP address. Special Agent O’Donnell created a document that listed each of the 11 images that rezchub61 uploaded to the boy2kid group; identified the time and date of each upload; identified the IP address, ISP, and physical location (city, state, country) from which the images were uploaded; and listed the “User Email” associated with each of the uploads as “rezchub61@yahoo.com.” This document (“Government’s Exhibit 51”) was admitted over Needham’s foundation, hearsay, relevancy, and Confrontation Clause objections.

Based on the information provided by the ISP, the FBI executed a search warrant and seized Needham’s computers. During the search, Special Agent Joe Ogden and another agent interviewed Need-ham outside his home. At trial, Special Agent Ogden testified that during this interview Needham admitted to possessing child pornography; uploading child pornography to GR0U.PS sites (including the boy2kid group); and using both the member name “rezehub61” or “redchub61” and e-mail address “rezchub61@yahoo.com” or “redchub61@yahoo.com.”

B. Requested Definition of “Distribute”

During the final charge conference, Needham requested a jury instruction that defined “distribution” as requiring “proof that another person actually downloaded or obtained the images.” The district court denied the requested instruction in favor of the Eighth Circuit Model Jury Instruction on the distribution of child pornography. The jury found Needham guilty of both possessing and distributing child pornography. The district court sentenced Needham to two concurrent 120-month sentences and 15 years’ supervised release.

C. Motion for New Trial Based on Juror Misconduct

During voir dire, the district judge asked the prospective jurors if they knew any of the attorneys. None of the prospective jurors acknowledged knowing Laura Provinzino, one of the prosecuting attorneys. After the trial, a juror e-mailed Pro-vinzino, stating:

Not sure if you’ll actually receive this email, but I was a juror for the James Patrick Needham trial last week. I was the tall one. I recognized your last name, and AFTER our verdict and the trial was over, I hoped that I would run in to you to ask if you (or possibly a spouse) had relatives with ties to Mel-rose. I’m originally from Melrose, currently live in Avon and work in St. Cloud. I did NOT do research of any kind during the trial, but when I got home I was curious.
If you are who I think you are, then Jean Provinzino was your Grandmother? ? ? I also knew that she had a son who was an attorney in St. Cloud, which lead me to believe you might be his daughter. I also pulled up Jean’s profile on FindaGrave.com, a website I use in my genealogy research, and saw that a granddaughter, Laura Provinzino was a pallbearer.
So, assuming this is correct, I first wanted to tell you of the great job you did in presenting the ease to us (the jury). The evidence was overwhelming. It was certainly an “experience” for me to serve on a Federal Court jury, although the subject matter of the case was not pleasant, to say the least! But mostly I wanted to tell you what a terrific lady your Grandmother was! I had Jean (Mrs. Provinzino) as a 4th grade teacher in Melrose, way back when! I remember always liking her as a teacher, and I think I was one of her best students that year. I remember doing her “times tables” flash cards contest the fastest, and getting a half-dollar coin from her as a prize!
In I believe the years 2000-2001, I had the opportunity & privilege to help her with her banking on more than a few occasions in St. Cloud. I “reminded” her that I was one of her students way back. She said she remembered me being the tallest in the class and being one of her better students. Not sure if she actually did remember or not, but that would be pretty incredible with the hundreds & hundreds of students she had over the years! But we had some nice conversations during those visits. I was saddened to see her obituary a few years ago when she passed away.
Anyways, again she was a wonderful lady. But of course, you already know that!

Needham filed a motion for new trial alleging juror bias or misconduct, maintaining that the juror failed to disclose that he recognized Provinzino’s family name during voir dire and would have been dismissed had he disclosed his connection to Provinzino’s grandmother. Needham alternatively requested an evidentiary hearing to further explore the juror’s bias and reason for failing to disclose this information. The district court determined that Needham failed to establish either bias or misconduct and denied the motion for new trial and request for hearing.

II. Discussion

On appeal, Needham argues that the district court erred by (1) admitting the two screenshots and Government’s Exhibit 51 into evidence because these exhibits lacked an adequate foundation, constituted inadmissible hearsay, and violated Need-ham’s right to confrontation; (2) rejecting his requested definition of “distribute”; and (3) denying his motion for a new trial and his request for an evidentiary hearing on juror misconduct.

A. Evidence of Possession and Distribution of Child Pornography

“We review a district court’s evi-dentiary rulings for abuse of discretion.” United States v. Lomas, 826 F.3d 1097, 1105 (8th Cir. 2016). The admission of evidence can be affirmed on any basis supported by the record. United States v. Stong, 773 F.3d 920, 924 (8th Cir. 2014). Even if the court abused its discretion in admitting hearsay, such error is harmless if it did not influence, or only slightly influenced, the verdict. Lomas, 826 F.3d at 1105. However, “[i]f the error is of constitutional magnitude, then the government is required to prove the error was harmless beyond a reasonable doubt.” United States v. Campbell, 764 F.3d 880, 887 (8th Cir. 2014) (alteration in original) (quoting United States v. Haidley, 400 F.3d 642, 645 (8th Cir. 2005)).

Authentication is satisfied by “evidence sufficient to support a finding that the item is what the proponent claims.” Fed R. Evid. 901(a). “The party authenticating the exhibit ‘need only prove a rational basis for that party’s claim that the document is what it is asserted to be.’ ‘This may be done with circumstantial evidence.’ ” Jones v. Nat’l Am. Univ., 608 F.3d 1039, 1045 (8th Cir. 2010) (citation omitted) (quoting United States v. Wadena, 152 F.3d 831, 854 (8th Cir. 1998)).

1. Screenshots

Exhibits depicting online content may be authenticated by a person’s testimony that he is familiar with the online content and that the exhibits are in the same format as the online content. See id. at 1045^16. Such testimony is sufficient to provide a rational basis for the claim that the exhibits properly represent the online content. See id. at 1046 (“Buckles testified that he was familiar with the NAU website and.... the exhibits were in the same format as the postings found on the website. The court did not abuse its discretion by determining that this testimony was sufficient to ‘prove a rational basis’ for Jones’[s] claim that the exhibits were NAU job postings.” (quoting Wadena, 152 F.3d at 854)). Special Agent O’Donnell testified that he personally viewed the boy2kid group and rezchub61’s profile page and that the screenshots accurately represented the online content of both sites. Thus, the district court did not abuse its discretion by admitting the screenshots.

Additionally, Needham’s assertion that the screenshots constitute inadmissible hearsay is unpersuasive. In United States v. Manning, this court upheld the admissibility of chat transcripts as circumstantial evidence associating the defendant with child pornography found on the defendant’s computer. 738 F.3d 937, 943 (8th Cir. 2014). The defense argued “that the chats constituted inadmissible hearsay and did not sufficiently identify [the defendant] as the person operating under the user-names ‘boost-virgin’ and ‘mem659.’” Id. The government presented evidence that the chats were found on the defendant’s computer, and the officer who helped execute the search warrant “testified that the defendant admitted adopting the username ‘mem659’ for his computer account,” which was the same username identified in the chats. Id. We held that there was sufficient evidence to impliedly identify the defendant as one of the chat participants (which would render any statement of the defendant in the chat transcript admissible non-hearsay) and that the statements of the other participants were admissible as context for the defendant’s messages. See id.

Here, Special Agent Ogden testified that Needham admitted to having a GROU.PS username of “either rezchub61 or redchub61” and the e-mail addresses “rezchub61@yahoo.com and redchub61@ yahoo.com.” Thus,' even assuming the screenshots contained out-of-court statements, there is sufficient evidence to identify Needham as “rezchub61,” rendering rezchub61’s statements admissible. See Fed. R. Evid. 801(d)(2)(A) (providing that an opposing party’s statement that was made in an individual or representative capacity is not hearsay). Even if the screenshots contained inadmissible hearsay, any error in admitting the screenshots would have been harmless and “could not have substantially influenced the jury’s verdict here because of the overwhelming evidence provided by the government of [Needham’s] guilt.” United States v. Merrell, 842 F.3d 577, 583 (8th Cir. 2016).

2. Government’s Exhibit 51

Rule 1006 of the Federal Rules of Evidence permits a proponent to “use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court.” Fed. R. Evid. 1006. Summary charts are admissible if “(1) the charts fairly summarize voluminous trial evidence; (2) they assist the jury in understanding the testimony already introduced; and (3) the witness who prepared the charts is subject to cross-examination with all documents used to prepare the summary.” United States v. Hawkins, 796 F.3d 843, 865 (8th Cir. 2015) (quoting United States v. Green, 428 F.3d 1131, 1134 (8th Cir. 2005)). Additionally, parties may use a “ ‘pedagogic device,’ such as a summary of witness testimony and/or trial exhibits, to organize testimony and other evidence for the jury.” Id. “The use of pedagogic devices is within the sound discretion of the trial court, and our review is limited to ‘whether the pedagogic device in question was so unfair and misleading as to require a reversal.’ ” Id. (quoting United States v. Crockett, 49 F.3d 1357, 1361 (8th Cir. 1995)).

The government introduced a chart containing the information that Special Agent O’Donnell gathered during his investigation of the 11 images that rezch-ub61 uploaded to the boy2kid group. Needham argues that this chart, Government’s Exhibit 51, was improperly admitted into evidence because the chart is a “hybrid summary chart/pedagogical device” containing inadmissible hearsay that is based on review of GROU.PS’s company records.

We find no reversible error in the district court’s admission of Government’s Exhibit 51. Government’s Exhibit 51 consists mostly of properly admitted evidence contained elsewhere in the record. Thus, to the extent the chart contains inadmissible hearsay statements derived from Special Agent O’Donnell’s review of GROU. PS’s records, the admission of such statements was harmless. See Lomas, 826 F.3d at 1105. Therefore, the district court did not err in admitting Government’s Exhibit 51.

B. Requested Definition of “Distribute”

Needham argues that the district court erred by denying his requested instruction that defined “distribute” to mean “that a defendant’s child pornography materials were transferred or downloaded by another person.” Because a district court has broad discretion in forming jury instructions, we review the court’s instructions for an abuse of discretion. Lincoln Composites, Inc. v. Firetrace USA, LLC, 825 F.3d 453, 461 (8th Cir. 2016). “Our review is limited to determining ‘whether the instructions, taken as a whole and viewed in the light of the evidence and applicable law, fairly and accurately submitted the issues to the jury.’ We will not reverse a jury verdict unless an erroneous instruction affects a party’s substantial rights.” Id. (quoting Slidell, Inc. v. Millennium Inorganic Chems., Inc. 460 F.3d 1047, 1054 (8th Cir. 2006)). The district court relied on Eighth Circuit Model Jury Instruction No. 6.18.2252 and instructed the jury as follows:

The crime of distribution of child pornography, as charged in Count 2 of the indictment, has three elements, which are:
One, that on or about August 4, 2010, the defendant knowingly distributed one or more of the computer image files listed in Count 2 of the indictment, which contained multiple visual depictions of child pornography;
Two, that the defendant knew that the visual depictions were of a minor engaging in sexually explicit conduct; and
Three, that the computer image files containing the visual depictions had been transported by computer in interstate or foreign commerce.

“The model instructions ‘are not binding on the district courts of this circuit, but are merely helpful suggestions to assist the district courts.’ ” United States v. Cornelison, 717 F.3d 623, 628 (8th Cir. 2013) (quoting Body v. Murphy-Kjos, 628 F.3d 1000, 1004 (8th Cir. 2011)). The district court’s instruction given here plainly mirrors 18 U.S.C. § 2252(a)(2), which punishes any person who:

knowingly receives, or distributes, any visual depiction using any means or facility of interstate or foreign commerce or that has been mailed, or has been shipped or transported in or affecting interstate or foreign commerce, or which contains materials which have been mailed or so shipped or transported, by any means including by computer, or knowingly reproduces any visual depiction for distribution using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or through the mails, if—
(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and
(B) such visual depiction is of such conduct....

We hold that, “taken as a whole,” the district court’s instruction “fairly and adequately instruct[s] the jurors on the applicable law.” See Cornelison, 717 F.3d at 628 (quoting United States v. Spires, 628 F.3d 1049, 1053 (8th Cir. 2011)). Needham argues that “distribute” should be given its ordinary meaning, but the court need not define terms of ordinary meaning, Am. Bank of St. Paul v. TD Bank, N.A., 713 F.3d 455, 468 (8th Cir. 2013). Therefore, the district court did not abuse its discretion by denying Needham’s requested instruction.

C. Motion for New Trial Based on Juror Bias

“ ‘We review both the district court’s handling of allegations of juror misconduct and its denial of the motion for a new trial for an abuse of discretion.’ District courts also have ‘broad discretion’ regarding whether to conduct evidentiary hearings regarding juror misconduct allegations.” United States v. Muhammad, 819 F.3d 1056, 1061 (8th Cir. 2016) (first quoting United States v. Caldwell, 83 F.3d 954, 955 (8th Cir. 1996); and then quoting United States v. Johnson, 495 F.3d 951, 981 (8th Cir. 2007)). To obtain a new trial or evidentiary hearing on the basis of a juror’s mistaken response on voir dire, a party must establish that (1) the juror “answered dishonestly, not just inaccurately”; (2) the juror was “motivated by partiality”; and (3) “the true facts, if known, would have supported striking [the juror] for cause.” United States v. Tucker, 137 F.3d 1016, 1026 (8th Cir. 1998). In contrast, a juror’s mere failure to answer correctly whether the juror recognizes a party or attorney is insufficient to establish that the juror answered dishonestly. See, e.g., Hawkins, 796 F.3d at 864 (“[I]t was reasonable to infer that Juror No. 2 did not lie about her relationship with [the government witness] but instead simply did not recognize his name or face.”); United States v. Ruiz, 446 F.3d 762, 770 (8th Cir. 2006) (holding a “juror was being truthful during voir dire when she answered that she did not know any of the defendants” even though the juror subsequently recognized the mother of one of the defendants in the courtroom and realized the relationship); United States v. Williams, 77 F.3d 1098, 1100-01 (8th Cir. 1996) (finding no showing of juror misconduct when juror was asked “whether the names of ‘these two’ defendants meant anything to her” and the juror failed to disclose that her grandson shared the same full name as one of the defendants).

The prospective jurors were asked about their personal knowledge of prosecutor Provinzino during voir dire — not if they recognized Provinzino’s family name. So even if the juror immediately recognized Provozino’s family name, Needham has failed to establish that the juror answered dishonestly during voir dire. The juror answered honestly in professing not to know Provinzino. The later revelation in the juror’s correspondence only showed that the juror confirmed a suspicion of knowing Provinzino’s grandparent, which likely did not exist during voir dire.

Likewise, Needham failed to establish that the juror was motivated by partiality. Because “courts presume that a prospective juror is impartial,” establishing juror partiality is a high hurdle. Moran v. Clarke, 443 F.3d 646, 650 (8th Cir. 2006). “Essentially, to fail this standard, a juror must profess his inability to be impartial and resist any attempt to rehabilitate his position.” Id. at 650-51 (holding that the district court did not abuse its discretion in denying a motion to strike jurors that “acknowledged difficulty being impartial, given their strong emotions” on the underlying facts of the case because the jurors “consistently stated that they could be impartial”).

Absent a juror’s profession of the inability to be impartial, juror bias “may be implied [only] in certain egregious situations.” Manuel v. MDOW Ins. Co., 791 F.3d 838, 843 (8th Cir. 2015) (quoting Sanders v. Norris, 529 F.3d 787, 792 (8th Cir. 2008)). Such “extreme situations” are limited to those “in which ‘the relationship between a prospective juror and some aspect of the litigation ... [makes it] highly unlikely that the average person could remain impartial.’” Id. (ellipsis and alteration in original) (quoting Sanders, 529 F.3d at 792). “[E]xamples might include a revelation that a juror is an actual employee of the prosecuting agency, that the juror is a close relative of one of the participants in the trial or the criminal transaction, or that the juror was a witness or somehow involved in the criminal transaction.” United States v. Tucker, 243 F.3d 499, 509 (8th Cir. 2001) (quoting Smith v. Phillips, 455 U.S. 209, 222, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) (O’Connor, J., concurring)). Mere distant past acquaintance with an attorney’s relative does not qualify as an extreme situation and is insufficient to create a presumption of bias. Thus, the district court did not abuse its discretion in denying Needham’s motion for new trial or his request for an evidentiary hearing because Needham failed to establish juror bias or misconduct.

III. Conclusion

Accordingly, we affirm the judgment of the district court.

      . The Honorable John R. Tunheim, Chief Judge, United States District Court for the District of Minnesota.

      . The FBI seized a desktop computer, laptop, and floppy disk. Forensic examination of Needham's desktop computer revealed that the GROU.PS website had been accessed 7,000 times; a few hundred references to the boy2kid group; and over 1,300 images and 100 videos containing child pornography— including the 11 images rezchuból uploaded to the boy2kid group.

      . The chart lists each of the 11 images uploaded by rezchuból to the boy2kid group with the following corresponding information for each image: the uploader's user ID number (2489623), profile name (rezchuból), and e-mail address (rezchub61@yahoo.com); name of the group the image was uploaded to (boy2kid); source URL; date and time the image was uploaded; the uploader’s IP address and ISP; and the physical location from which each upload occurred (city, region, and country).

      . The only information listed in the chart that is not readily apparent from the record is the uploader’s user ID number, source URL, and the date and time each image was uploaded.


source: Caselaw Access Project

author: GRABER, Circuit Judge:

license: Public Domain

text:
    IN RE Konstantin KUPFER; Margarita Kupfer, Debtors. Konstantin Kupfer; Margarita Kupfer, Debtors-Appellants, v. Karim Salma; Robert Salma, as Trustees of the Salma Family Trust; Lindsey S. Bruel; Riyad R. Salma; Laith K. Salma, Creditors-Appellees.
    No. 14-16697
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted October 17, 2016, San Francisco, California
    Filed December 29, 2016

      Reno F.R. Fernandez III (argued), Iain A. Macdonald, and Matthew J. Olson, Mac-donald Fernandez LLP, San Francisco, California, for Debtors-Appellants.
    Merle C. Meyers (argued) and Michele Thompson, Meyers Law Group P.C., San Francisco, California, for Creditors-Appel-lees.
    Before: SUSAN P. GRABER and MARY H. MURGUIA, Circuit Judges, and MARK W. BENNETT, District Judge.

       The Honorable Mark W. Bennett, United States District Judge for the Northern District of Iowa, sitting by designation.

   ORDER

The request to publish the unpublished Memorandum disposition is GRANTED. The Memorandum disposition filed October 27, 2016, is redesignated as an authored Opinion by Judge Graber with modifications.

OPINION

GRABER, Circuit Judge:

“This appeal turns entirely on a single provision of the Bankruptcy Code, 11 U.S.C. § 502(b)(6), and presents a question of statutory interpretation which we review de novo.” AMB Prop., L.P. v. Official Creditors for Estate of AB Liquidating Corp. (In re AB Liquidating Corp.), 416 F.3d 961, 963 (9th Cir. 2005). We hold that the statutory cap on a landlord’s claims against a tenant in bankruptcy, set forth in § 502(b)(6), applies only to claims that result directly from the termination of a lease, but not to collateral claims. Because the district court used an all-or-nothing approach, we vacate and remand for further proceedings.

Konstantin Kupfer and Margarita Kup-fer (“Debtors”) leased from Karim Salma and Roberta Salma as Trustees of the Salma Family Trust, Lindsey S. Bruel, Riyad R. Salma, and Laith K. Salma (“Creditors”) two commercial properties located in Burlingame, California. Each lease ran for 10 years. Each lease included an arbitration clause for the “Resolution of Disputes Between Landlord and Tenant” and included a clause under which attorney fees, arbitration fees, and costs would be awarded to the prevailing party in the event of such a dispute.

Debtors stopped paying rent on the properties and eventually vacated the premises. Creditors initiated an action in California state court for breach of both leases. Debtors counterclaimed, alleging breach of contract, breach of the covenant of good faith and fair dealing, inducement to breach a contract, negligent interference with contract, breach of the covenant of quiet enjoyment, and claims for declaratory relief, constructive eviction, and nuisance. The state court stayed the action pending arbitration.

The arbitrators assessed damages against Debtors for breaches of the leases; the damages included both unpaid past rent and future rent discounted to present value. The damages totaled nearly $1.3 million. The arbitrators also denied all of Debtors’ claims against Creditors. Finally, the arbitrators awarded attorney fees of $137,250, plus arbitration fees of $56,934.18, to Creditors.

Thereafter, Debtors filed for Chapter 11 bankruptcy. Creditors filed a proof of claim for the arbitration award. Debtors objected, arguing that the entire arbitral award, including attorney fees and arbitration fees — not just the portions of the award representing past and future rent— should be limited by the cap contained in 11 U.S.C. § 502(b)(6). Creditors countered that the cap should apply only to past and future rent, but not to the fee award. The bankruptcy court sided with Creditors, allowing an amount that represented the arbitration award of past and future rent as limited by the statutory cap, plus the entire uncapped claim for attorney fees and arbitration fees. The district court affirmed, Kupfer v. Salma (In re Kupfer), 526 B.R. 812 (N.D. Cal. 2014), and Debtors timely appealed. The parties do not dispute the court’s calculations. Instead, they disagree only about the legal question whether the fees must be capped or whether the fees may be claimed in addition to the capped amount of rent.

Under 11 U.S.C. § 502(a), claims are “deemed allowed, unless a party in interest ... objects.” If a party objects, the claim is allowed except, in relevant part, to the extent that,

if such claim is the claim of a lessor for damages resulting from the termination of a lease of real property, such claim exceeds—
(A) the rent reserved by such lease, without acceleration, for the greater of one year, or 15 percent, not to exceed three years, of the remaining term of such lease, following the earlier of—
(i) the date of the filing of the petition; and
(ii) the date on which such lessor repossessed, or the lessee surrendered, the leased property; plus
(B) any unpaid rent due under such lease, without acceleration, on the earlier of such dates[.]

Id. § 502(b)(6). The statute sets forth a category of claims that is subject to the cap (“claim[s] of a lessor for damages resulting from the termination of a lease”) and then defines the cap as the sum of all outstanding current rent and the greater of one year of remaining rent or 15% of the remaining term. In some circumstances, attorney fees and arbitration fees can be categorized as damages resulting from termination. See, e.g., In re PPI En ters. (U.S.), Inc., 228 B.R. 339, 349 (Bankr. D. Del. 1998), subsequently aff'd, Solow v. PPI Enters. (U.S.), Inc., 324 F.3d 197 (3d Cir. 2003). To determine the extent to which that form of damages is capped, though, requires some explanation.

Historically, landlords could not recover future unpaid rent in bankruptcy, on the theory that such claims were contingent. See Manhattan Props., Inc. v. Irving Tr. Co., 291 U.S. 320, 334-35, 54 S.Ct. 385, 78 L.Ed. 824 (1934) (describing 1898 bankruptcy law). Congress revisited that issue following the Great Depression, when it sought to reconcile “the need for landlords to be able to participate in the bankruptcy claim process and share in assets” with “the need not to allow the debtor’s estate to be depleted through admission of extravagant claims for damages or unearned rent.” In re Best Prods. Co., 229 B.R. 673, 675-76 (Bankr. E.D. Va. 1998) (internal quotation marks omitted). The 1933 and 1934 amendments to the Bankruptcy Act introduced a new, but circumscribed, claim for unpaid rent. Those provisions permitted a “claim of a landlord for injury resulting from the rejection by the trustee of an unexpired lease of real estate or for damages or indemnity under a covenant contained in such lease,” but limited the recoverable claim to the unpaid rent plus one year of rent reserved. Act of June 7, 1934, ch. 424, § 4(a), 48 Stat. 911, 923-24. With that law, “Congress intended to strike a balance between compensating the landlord for his loss together with a limited sacrifice to protect other creditors and the debtor’s rehabilitation.... ” In re Heller Ehrman LLP, No. 10-CV-03134 JSW, 2011 WL 635224, at *4 (N.D. Cal. Feb. 11, 2011) (internal quotation marks omitted) (quoting Vause v. Capital Poly Bag, Inc. (In re Vause), 886 F.2d 794, 802 (6th Cir. 1989)).

Holding that a statutory predecessor to the cap did not violate due process, the Supreme Court explained the purpose of capping a landlord’s damages in bankruptcy: “It is well known that leases of business properties, particularly retail business properties, commonly run for long terms. The longer the term the greater the uncertainty as to the loss entailed by abrogation of the lease.” Kuehner v. Irving Tr. Co., 299 U.S. 445, 454, 57 S.Ct. 298, 81 L.Ed. 340 (1937) (construing former § 77B(b)(10) of the Bankruptcy Act, 11 U.S.C. § 207(b)(10) (1934)). The Court continued that “the rent reserved, broadly speaking, has some relationship to the value of the property and the value of a lease thereon” and, even with a cap, “the landlord stands a reasonable chance of restoring himself to as good a position as if the lease had not been terminated.” Id. at 455, 57 S.Ct. 298.

The statutory cap was modified over the years, but did not change significantly until the 1978 enactment of the current law. Whereas the 1930s provision capped “injury resulting from the rejection” of a lease (a post-petition event) as well as “damages or indemnity under a covenant contained in such lease,” 11 U.S.C. § 103(a)(9) (1976), the current provision caps only “damages resulting from the termination of a lease,” 11 U.S.C. § 502(b)(6). Thus the older statute, by its text, may have capped a broader set of landlord-creditor claims than does the current statute. See Michael St. Patrick Baxter, The Application of § 502(b)(6) to Nontermination Lease Damages: To Cap or Not to Cap?, 83 Am. Bankr. L.J. 111, 142^14 (2009) (describing as “counterintuitive” the idea that this difference in text effected “no substantive change”). Since enactment of the current provision, courts have differed on the proper interpretation of its scope: that is, what damages “result[] from the termination of a lease”? 11 U.S.C. § 502(b)(6).

On one end of the spectrum, some courts have interpreted the provision expansively, as a kind of subject matter cap on all lease-related damages. For example, a Colorado bankruptcy court held that, “as a matter of law, the actual damage claim ... for termination of the lease, whether for non-payment of rent, taxes, costs, attorney’s fees, or other financial covenants such as the Residual Guarantee, are limited by the damage cap.” In re Storage Tech. Corp., 77 B.R. 824, 825 (Bankr. D. Colo. 1986). The court explained that the statute “does not qualify or in any way limit the type of damages involved. The damage cap applies to all damages, which are then arbitrarily capped and measured by rent reserved.” Id. The Ninth Circuit’s Bankruptcy Appellate Panel (“BAP”) likewise held that

rejection of the lease results in the breach of each and every provision of the lease, including covenants, and § 502(b)(6) is intended to limit the lessor’s damages resulting from that rejection .... The distinction between past obligations under the lease and damages “caused” by the termination is incorrect because all damages due to nonperformance are encompassed by the statute.

Kuske v. McSheridan (In re McSheridan), 184 B.R. 91, 102 (9th Cir. BAP 1995), overruled in part by Saddleback Valley Cmty. Church v. El Toro Materials Co. (In re El Toro Materials Co.), 504 F.3d 978 (9th Cir. 2007).

On the other end of the spectrum, the provision has been interpreted narrowly to cap claims for future rent, but to exclude all other damages, thereby permitting collateral claims to be asserted in full. Finding that cases applying the cap broadly “rest[ ] upon a somewhat tortured analysis of the relevant code sections” and are unsupported by legislative history, one court held that “the weight of authority in reported opinions where landlords have actually claimed damages for such items as maintenance and repairs is that these damages do not result ‘from the termination of a lease of real property’ and are therefore not subject to the cap of § 502(b)(6)(A).” In re Best Prods. Co., 229 B.R. at 677-78.

We entered the debate by taking the middle ground in In re El Toro Materials Co., 504 F.3d 978. There, the debtor, a mining company, sought to use the cap “to limit its liability for allegedly leaving one million tons of its wet clay ‘goo,’ mining equipment and other materials on Saddle-back Community Church’s property after rejecting its lease.” Id. at 979. After an adversary proceeding in which the creditor-landlord alleged waste, nuisance, trespass, and breach of contract, the Ninth Circuit’s BAP held that those damages were capped by § 502(b)(6) because they resulted from termination of the lease. Id. We reversed. Reviewing the provision’s legislative history, we observed that “section 502(b)(6) of the 1978 Act was intended to carry forward existing law allowing limited damages for lost rental income.” Id. at 980 (citing S. Rep. No. 95-989, at 63 (1978), as reprinted in 1978 U.S.C.C.A.' 5787, 5849). We also reasoned from the statute’s purpose: “The structure of the cap — measured as a fraction of the remaining term— suggests that damages other than those based on a loss of future rental income are not subject to the cap.” Id. Although “[i]t makes sense to cap damages for lost rental income based on the amount of expected rent,” “collateral damages are likely to bear only a weak correlation to the amount of rent: A tenant may cause a lot of damage to a premises leased cheaply, or cause little damage to premises underlying an expensive leasehold.” Id. “Metering these collateral damages by the amount of the rent would be inconsistent with the goal of providing compensation to each creditor in proportion with what it is owed.” Id. We held that tort claims for waste, nuisance, and trespass “do not result from the rejection of the lease — they result from the pile of dirt allegedly left on the property.” Id.

Summarizing its reasoning, El Toro established a test for determining which claims would be capped and which claims would be allowed in full:

A simple test reveals whether the damages result from the rejection of the lease: Assuming all other conditions remain constant, would the landlord have the same claim against the tenant if the tenant were to assume the lease rather than rejecting it?

Id. at 981. Saddleback’s tort claims would have been viable even if El Toro had never rejected its lease in bankruptcy, and Sad-dleback could have sued on them even if El Toro had remained a lessee in good standing. We concluded: “To the extent that McSheridan holds section 502(b)(6) to be a limit on tort claims other than those based on lost rent, rent-like payments or other damages directly arising from a tenant’s failure to complete a lease term, it is overruled.” Id. at 981-82.

The Eighth Circuit’s BAP adopted El Toro and then proposed its own test “for cases involving, not a post-petition rejection of a lease, but a pre-petition termination of a lease: Assuming all other conditions remain constant, would the landlord have the same claim against the tenant if the lease had not been terminated?” Lariat Cos. v. Wigley (In re Wigley), 533 B.R. 267, 270-71 (8th Cir. BAP 2015). The court capped the creditor’s claim for interest on the award of future rent, reasoning that, without termination of the lease, there would be no claim for future rent, and without an award for future rent, there is no interest. Id. at 272. Because the asserted damages for “unpaid [past] rent, common area maintenance, and late fees” had “accrued prior to termination of the lease and thus cannot be said to have resulted from termination of the lease, the related attorney fees, costs, and disbursements— and the pre-petition interest thereon — likewise cannot be said to have resulted from termination of the lease” and were not capped. Id. The court did not rule on the “attorney fees, costs, and disbursements” that did not derive from damages awarded under the lease or the debtor’s guarantee of his bankrupt business, because there had been a dispute in the first instance about whether the landlord-creditor was entitled to those damages at all. The BAP remanded for a determination of both whether the landlord-creditor was entitled to those damages and, if so, whether they are subject to the cap. Id.

We agree with Wigley’s adaptation of our El Toro test in the context of a pre-petition lease termination: Assuming that all other conditions remain constant, would the landlord have the same claim against the tenant had the lease not been terminated? Applying that principle here, we conclude that the parties’ and the courts’ all-or-nothing approach is incorrect.

As noted, the arbitration giving rise to the disputed fees and costs concerned two leases. The prevailing Creditors demanded both past-due rent and future rent. Debtors brought a variety of counterclaims, alleging torts and breaches of contract committed by Creditors. Even though Debtors did not prevail on those claims, they were litigated, and the fees and costs reflect that litigation. The obligation to reimburse Creditors for fees and costs arose from covenants in the leases, but § 502(b)(6) does not cap damages resulting from every breach of contract— only those claims for “damages resulting from the termination of a lease.” 11 U.S.C. § 502(b)(6) (emphases added).

Fees attributable to litigating Creditors’ claims for future rent are capped, because such claims would not arise were the leases not terminated. But the arbitration award also included damages for past rent, which Creditors could claim independent of termination; the fees attributable to that portion of the litigation are not capped. The parties also litigated Debtors’ numerous counterclaims. To the extent that the counterclaims concerned ordinary alleged breaches, independent of a lease termination, the associated fees and costs are not capped, either.

On remand, the district court first must categorize all claims as either directly resulting from termination of the leases, or not. The former are capped; the latter are not. The court then must apportion the associated fees and costs accordingly. The district court may decide whether to apportion the fees itself or to remand the case to the bankruptcy court for apportionment. We also leave to the district court’s or the bankruptcy court’s discretion whether to take additional evidence or conduct further hearings in aid of the apportionment.

VACATED and REMANDED. The parties shall bear their own costs on appeal.


author: ZOUHARY, District Judge:

text:
    Stephen YAGMAN, Plaintiff-Appellant, v. Eric GARCETTI, Gilbert Cedillo; Paul Krekorian; Bob Blumenfield; Tom LaBonge; Paul Koretz; Nury Martinez; Felipe Fuentes; Bernard Parks; Curren Price, Jr.; Herb Wesson, Jr.; Mike Bonin; Mitchell Englander; Mitch O’Farrell; Jose Huizar; Joe Suscanio; George E. Moss; Grace Eunkyung Yoo; Ron Carpenter; David Malcome Carson; Jaime Jesus Rodriguez; Stephanie Rodriguez; Dana Matthew Perlman; Janny H. Kim; John Ly; Eric Eishenberg; Bryan Kang; Jaime De La Vega; Selwyn Hollins; Detrich Allen; Robert Andalon; Grag Savelli; John Ficke; Sharon Louis Jacobucci, Defendants-Appellees.
    No. 14-56223
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted November 9, 2016, Pasadena, California
    Filed January 20, 2017

      Stephen Yagman (argued), Yagman & Reichmann, Venice Beach, California, pro se Plaintiff-Appellant.
    Gerald M. Sato (argued), Deputy City Attorney; Ronald S. Whitaker, Assistant City Attorney; Thomas H. Peters, Chief Assistant City Attorney; Michael N. Feuer, City Attorney; Office of the Los Angeles City Attorney, Los Angeles, California; for Defendants-Appellees.
    Before: MARSHA S. BERZON and JACQUELINE H. NGUYEN, Circuit Judges, and JACK ZOUHARY, District Judge.
   OPINION

ZOUHARY, District Judge:

The primary issue in this appeal is whether the California Vehicle Code’s procedure for contesting parking citations — as implemented by the City of Los Angeles— deprives contestants of property without due process. The district court answered no. We affirm.

I

Appellant Stephen Yagman alleges that he received and contested three parking citations from the City of Los Angeles (“the City”). While not mentioned in his Complaint or opposition to the City’s motion to dismiss, the California Vehicle Code establishes the baseline procedure for contesting those citations. See Cal. Veh. Code § 40215. The contestant must first request an initial review by the “issuing agency.” Id. § 40215(a). If the initial review does not result in the citation’s cancellation, the contestant may then request an administrative hearing within 21 days after the results of the initial ■ review have been mailed. Id. § 40215(b). Should the challenger make such a request, the issuing agency must hold an administrative hearing within 90 days of the receipt of such request. Id. Before the hearing will be held, the contestant must either deposit the amount of the citation penalty or prove an inability to pay. Id. If still unsatisfied after the formal administrative hearing, the contestant may seek de novo review in the superior court. Id. § 40230.

In his threadbare Complaint, Yagman alleges that he asked for a “hearing” and, after his requests to waive the deposit requirement were denied, deposited the penalties and prevailed at two of the three formal administrative hearings. Yagman does not dispute that he underwent the initial review process and that he offered no proof of an inability to pay.

Yagman filed a putative class action against various city officials alleging Section 1983 claims for due process violations, malicious prosecution, conspiracy, and Mo-nell liability, as well as a claim under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq. The district court dismissed Yagman’s claims with prejudice. On appeal, Yagman argues he adequately pled facts supporting each of his claims and, in any event, the district court erred by not granting leave to amend.

II

We review “de novo the district court’s grant of a motion to dismiss under Rule 12(b)(6), accepting all factual allegations in the complaint as true and construing them in the light most favorable to the nonmoving party.” Ebner v. Fresh, Inc., 838 F.3d 958, 962 (9th Cir. 2016) (quoting Skilstaf, Inc. v. CVS Caremark Corp., 669 F.3d 1005, 1014 (9th Cir. 2012)). A dismissal may be affirmed on any ground supported by the record. Id. And dismissal is appropriate where the plaintiff failed to allege “enough facts to state a claim to relief that is plausible on its face.” Id. at 962-63 (quoting Turner v. City & Cty. of San Francisco, 788 F.3d 1206, 1210 (9th Cir. 2015)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements” are insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

A district court’s denial of leave to amend is reviewed for abuse of discretion. Ebner, 838 F.3d at 963. “In dismissing for failure to state a claim, a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Id. (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)).

Ill

Yagman first argues that the City’s procedure for contesting parking citations violates procedural due process because it requires contestants to surrender property before holding a formal hearing. “Due process is a flexible concept that varies with the particular situation.” Shinault v. Hawks, 782 F.3d 1053, 1057 (9th Cir. 2015) (internal quotations omitted). “The base requirement of the Due Process Clause is that a person deprived of property be given an opportunity to be heard at a meaningful time and in a meaningful manner.” Buckingham v. Sec’y of U.S. Dep’t of Agric., 603 F.3d 1073, 1082 (9th Cir. 2010) (quoting Brewster v. Bd. of Educ., 149 F.3d 971, 984 (9th Cir. 1998)). This principle does not always require a full eviden-tiary hearing or a formal hearing. Id.

The Supreme Court has held, however, that usually “the Constitution requires some kind of ... hearing before the State deprives a person of liberty or property.” Shinault, 782 F.3d at 1058 (emphasis added and altered) (quoting Zinermon v. Burch, 494 U.S. 113, 127, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990)); see also United States v. Clifford Matley Family Trust, 354 F.3d 1154, 1162 (9th Cir. 2004) (“[T he type of. hearing required depends on the circumstances.”). Thus, in “situations where the State feasibly can provide a predeprivation hearing before taking property, it generally must do so regardless of the adequacy of a postdeprivation ... remedy to compensate for the taking.” Shinault, 782 F.3d at 1058 (quoting Zinermon, 494 U.S. at 127, 110 S.Ct. 975).

The predeprivation hearing, which “need not be elaborate,” “serves only as an initial check against mistaken decisions — essentially, a determination of whether there are reasonable grounds to believe that the charges are true and support the proposed action.” Brewster, 149 F.3d at 985 (internal citations and quotation marks omitted). “To that end, a [due process] plaintiff need only be accorded oral or written notice of the charges against him, an explanation of the [adverse] evidence, and an opportunity to present his side of the story.” Id. (internal citations and quotation marks omitted). Further, where “prompt postdeprivation review is available for correction of administrative error, [due process] generally require[s] no more than that the predepri-vation procedures used be designed to provide a reasonably reliable basis for concluding that the facts justifying the.official action are as a responsible governmental official warrants them to be.” Mackey v. Montrym, 443 U.S. 1, 13, 99 S.Ct. 2612, 61 L.Ed.2d 321 (1979).

Accordingly, there are no “hard and fast” rules for determining the requisite timing and adequacy of pre- and post-deprivation procedures. See Brewster, 149 F.3d at 984. Rather, once this court has concluded a protected interest is at stake, it must apply the three-part balancing test established in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1979), to determine “whether a pre-deprivation hearing is required and what specific procedures must be employed at that hearing given the particularities of the deprivation.” Shinault, 782 F.3d at 1057. The Mathews factors are: “(1) the private interest affected; (2) the risk of erroneous deprivation through the procedures used, and the value of additional procedural safeguards; and (3) the government’s interest, including the burdens of additional procedural requirements.” Id. “By weighing these concerns, courts can determine whether a State has met the fundamental requirement of due process— the opportunity to be heard at a meaningful time and in a meaningful manner.” City of Los Angeles v. David, 538 U.S. 715, 717, 123 S.Ct. 1895, 155 L.Ed.2d 946 (2003) (internal quotations omitted).

Yagman argues that the Mathews balancing test is inapplicable. He relies on the Supreme Court’s observation in United States v. James Daniel Good Real Property that it “tolerates some exceptions to the general rule requiring predeprivation notice and hearing, but only in extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event.” 510 U.S. 43, 53, 114 S.Ct. 492, 126 L.Ed.2d 490 (1993) (quoting Fuentes v. Shevin, 407 U.S. 67, 82, 92 S.Ct. 1988, 82 L.Ed.2d 556 (1972)). Yagman believes the parking-citation process at issue fails to qualify as “extraordinary” and that this failure must end the inquiry. But Yagman ignores Good’s application of Mathews in determining whether an exception to the general rule was warranted. See Good, 510 U.S. at 53, 114 S.Ct. 492 (“Whether the seizure of real property for purposes of civil forfeiture justifies such an exception requires an examination of the competing interests at stake, along with the promptness and adequacy of later proceedings. The three-part inquiry set forth in [Mathews] provides guidance in this regard.”).

Moreover, Yagman mistakenly assumes the initial review does not satisfy Good’s “general rule requiring predeprivation notice and hearing.” Properly framed, the issue is not whether predeprivation notice and a full, formal hearing are required; it is whether the City’s procedures as a whole are constitutionally adequate under the circumstances — a determination that requires application of the Mathews test.

With respect to the first Mathews factor, the private interest at stake is relatively modest. Any erroneous deprivation based on the City’s prehearing deposit requirement is temporary, as the deposit is refunded after a successful challenge. See Mackey, 443 U.S. at 12, 99 S.Ct. 2612 (“The duration of any potentially wrongful deprivation of a property interest is an important factor in assessing the impact of official action on the private interest involved.”); Cal. Veh. Code § 42201.6 (requiring a refund of the deposit within 30 days of cancellation). Here, given the exception for individuals who cannot afford the deposit, the only private interest at stake for those subject to the deposit requirement is the temporary use of deposited funds during the period between a request for an administrative hearing and any refund following resolution of that hearing — a period which cannot exceed 120 days under state law. See David, 538 U.S. at 717-718, 123 S.Ct. 1895; Love v. City of Monterey, 37 Cal.App.4th 562, 43 Cal. Rptr.2d 911, 923 (1995). Yagman characterizes this private interest as the “lost time-value of money,” but he does not allege the length of time between his payment of the penalty amounts and refund. According to the Complaint, the largest alleged penalty was $73. Thus, the actual amount at stake was the interest accrued on $73 over perhaps as little as a few days, and no more than a few months. In other words, a very modest sum over a short period of time — a few dollars at most. See David, 538 U.S. at 719, 123 S.Ct. 1895 (2003) (holding that a 27-day delay between payment for vehicle towing and any refund was not a due process violation).

With respect to the second Mathews factor, the risk of erroneously depriving contestants of the deposited funds is relatively small. The initial-review process gave Yagman an opportunity to present evidence and arguments challenging his citations. That evidence would then be considered by the reviewer. See Weiss v. City of Los Angeles, 206 Cal.Rptr.3d 213, 218 (2016) (summarizing the Los Angeles initial-review procedure). Nothing in the Complaint plausibly suggests the initial reviews were conducted unfairly. In fact, the state appellate court in Weiss — a ease on which Yagman relies heavily on appeal— noted that the initial-review procedure was fair. 206 Cal.Rptr.3d at 232 (“That the current initial review procedure is fair speaks well of the City and Xerox’s intent in implementing and using it.”).

Yagman argues that the initial review is “perfunctory, illusory, meaningless, and ... [that it] results invariably in 75% of all cases in a deprivation of property.” Even assuming he could support this argument with allegations to the same effect, that would not be enough to plausibly suggest a constitutional inadequacy. To the contrary, as the district court correctly noted, the fact that the initial review allegedly results in cancellation of a citation twenty-five percent of the time shows that it “catches many mistakes and protects against arbitrariness.” The mere fact that the initial-review process failed to correct two of the three tickets he received, under identical circumstances, does not suggest a systemic failure of the process. The Due Process Clause does not require “that all governmental decisionmaking comply with standards that assure perfect, error-free determinations.” Mackey, 443 U.S. at 13, 99 S.Ct. 2612.

Finally, with respect to the third Mathews factor, the City’s interests served by the deposit requirement are substantial. One such interest is in discouraging dilatory challenges. See Love, 43 Cal.Rptr.2d at 925. Requiring the City to provide formal administrative hearings without collecting deposits would encourage contestants to request hearings simply to delay paying the penalties. The City has an interest in promptly collecting parking penalties. See id. at 924-25. Also, requiring a deposit before providing a formal hearing ensures the penalty will be collected following unsuccessful challenges. See id. at 924. By ensuring prompt payment for unsuccessful challenges, the City is spared the cost of further collection efforts. Lastly, the City has an interest in conserving “scarce administrative resources.” See id. at 925. By discouraging frivolous and dilatory challenges, the City avoids the need to schedule and staff unnecessary hearings.

Given the threadbare allegations in the Complaint and balancing the Mathews factors discussed above, this court concludes that the deposit requirement does not violate procedural due process. Given the moderate risk of erroneous deprivation, Yagmaris modest interest in temporarily retaining the amount of a parking penalty is outweighed by the City’s more substantial interests in discouraging dilatory challenges, promptly collecting penalties, and conserving scarce resources.

Importantly, under these circumstances, the initial review serves as an adequate “initial check against mistaken decisions.” Brewster, 149 F.3d at 985 (quoting Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 545-46, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985)). Given the availability of prompt post-deprivation review and correction, the initial review is “designed to provide a reasonably reliable basis for concluding that the facts justifying the official action are as a responsible governmental official warrants them to be,” Mackey, 443 U.S. at 13, 99 S.Ct. 2612, and so supports requiring payment of the deposit if the initial challenge does not succeed. Thus, Yagman cannot state a claim for violation of procedural due process based on the deposit requirement.

rv

In addition to his procedural due process challenge, Yagman argues the City’s procedure violates substantive due process because it is fundamentally unfair. Not so. Fundamental rights are not implicated in this case. See Samson v. City of Bainbridge Island, 683 F.3d 1051, 1058 (9th Cir. 2012) (“[Government action that ‘affects only economic interests’ does not implicate fundamental rights.”) (quoting Jackson Water Works, Inc. v. Pub. Utils. Comm’n, 793 F.2d 1090, 1093 (9th Cir. 1986)). Thus, to establish a substantive due process violation based on the City’s procedures, Yagman must show the procedures are “clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals or general welfare.” Id. (quoting Kawaoka v. City of Arroyo Grande, 17 F.3d 1227, 1234 (9th Cir. 1994)). The City’s procedures, however, are “presumed valid, and this presumption is overcome only by a clear showing of arbitrariness and irrationality.” Id. (quoting Kawaoka, 17 F.3d at 1234). This is an “exceedingly high burden.” Id. (quoting Shanks v. Dressel, 540 F.3d 1082, 1088 (9th Cir. 2008)). Because Yagman has not alleged conduct so “egregious” as to “amount to an abuse of power lacking any reasonable justification in the service of a legitimate governmental objective,” id. (quoting Shanks, 540 F.3d at 1088), his substantive due process challenge fails.

V

Yagman also argues he pled sufficient facts to state Section 1983 claims for malicious prosecution, conspiracy, and Monell liability. But to establish a claim for malicious prosecution under Section 1983, Yagman “must show that the defendants prosecuted [him] with malice and without probable cause, and that they did so for the purpose of denying [him] equal protection or another specific constitutional right.” Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004) (quoting Freeman v. City of Santa Ana, 68 F.3d 1180, 1189 (9th Cir. 1995)). Yagman alleges no facts indicating his civil parking citations were issued with malice and without probable cause.

Moreover, Yagman’s malicious prosecution, conspiracy, and Monell claims are each premised on a violation of Yagman’s constitutional rights. Because we hold that Yagman has not alleged a violation of his constitutional rights, he cannot maintain derivative constitutional claims based on that conduct.

VI

Yagman next argues that he adequately pled facts establishing a RICO claim. But the Complaint contains nothing more than the following conclusory allegations regarding the required RICO predicates: “The bad acts described in the matters enumerated herein above ... evidence civil RICO predicates, including at least fraud, wire fraud, mail fraud, extortion, and civil rights violations.”

There is no RICO predicate based on allegations of unspecified “civil rights violations.” See Jennings v. Emry, 910 F.2d 1434, 1438 (7th Cir. 1990). And Yag-man pled no facts on which this court could infer the City engaged in “fraud, mail fraud, wire fraud, or extortion.”

VII

Finally, Yagman argues the district court erred by not granting leave to amend his Complaint. A district court ordinarily must grant leave to amend when it dismisses claims under Rule 12(b)(6). But the district court need not grant leave if it “determines that the pleading could not possibly be cured by the allegation of other facts.” Ebner, 838 F.3d at 963 (quoting Doe, 58 F.3d at 497).

For the reasons discussed above, Yag-man could not in good faith allege additional facts that would plausibly state a claim based on the City’s citation-contest procedure. Leave to amend would have been futile. And for all those reasons, the dismissal of Yagman’s claims with prejudice is affirmed.

AFFIRMED.

      . Yagman also argues that the City's delegation of the initial review to a third-party processing agency in violation of the California Vehicle Code made the initial review a "legal nullity” that deprived him of due process. We decline to consider this argument because he failed to raise it in opposing the motion to dismiss below. See Hendricks & Lewis PLLC v. Clinton, 766 F.3d 991, 998 (9th Cir. 2014).


author: BERZON, Circuit Judge:

text:
    DB HEALTHCARE, LLC, DBA Metro Center Health Care; AVD Healthcare, LLC, DBA Mountain Vista Health Center; MH Healthcare, LLC, DBA North Health Center; SV Healthcare, LLC, DBA White Rock Health Center; Quinn Chiropractic, LLC, DBA White Rock Health Center; CK Healthcare, LLC, DBA Avondale Health Center; TM Healthcare, LLC, DBA Avondale Health Center; KM Healthcare, LLC, DBA Avondale Health Center; KD Chiropractic, LLC, DBA White Rock Health Center; EW Healthcare, LLC, DBA Greenway Health Center; PW Healthcare, LLC, DBA Greenway Health Center; Mary Melissa Hands; Victoria Tweedy; Robert Alexander; Simran Sethi; Sarah Quinn; Teresa Meloche; Allison Woodworth; Joe Melby; Crysty Frick; Patricia Paradis, Plaintiffs-Appellants, v. BLUE CROSS BLUE SHIELD OF ARIZONA, INC., Defendant-Appellee. Advanced Women’s Health Center, Inc., Plaintiff-Appellant v. Anthem Blue Cross Life and Health Insurance Company, Defendant-Appellee
    No. 14-16518, No. 14-16612
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted July 7, 2016 San Francisco, California
    Filed March 22, 2017

      Richard J. Quadrino (argued), Harold J. Levy, and Eugene R. Pagano, Quadrino Law Group P.C., Melville, New York; Tod F. Schleier and Bradley H. Schleier, Schleier Law Offices, Phoenix, Arizona; for Plaintiffs-Appellants.
    Anthony F. Shelley (argued), Michael N. Khalil, and Adam P. Feinberg, Miller & Chevalier Chartered, Washington, D.C., for Defendant-Appellee Blue Cross Blue Shield of Arizona, Inc.
    Eileen R. Ridley (argued), Alan R. Ouel-lette, and Michael A. Naranjo, Foley & Lardner LLP, San Francisco, California, for Defendant-Appellee Anthem Blue Cross Life and Health Insurance Company.
    Before: MARSHA S. BERZON, and N. RANDY SMITH, Circuit Judges, and DANA L. CHRISTENSEN, Chief District Judge.

       The Honorable Dana L. Christensen, United States Chief District Judge for the District of Montana, sitting by designation.

   OPINION

BERZON, Circuit Judge:

These two cases involve reimbursement disputes between health care providers and employee health benefit plan administrators. We decide the cases together because they raise a common central issue: whether a health care provider designated to receive direct payment from a health plan administrator for medical services is authorized to bring suit in federal court under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq. We consider two separate potential bases for such authority under ERISA’s civil enforcement provisions: direct statutory authority and derivative authority through assignment. Although the contractual relationships between the health care providers and the plan administrators, and between the providers and the patients, in these two cases differ in relevant ways, we conclude in both cases that the providers cannot enforce ERISA’s protections in federal court on either basis.

I. Background

The Plaintiffs-Appellants in these cases are health care providers (“Providers”) who furnish medical services to subscribers of employee health benefit plans. The benefit plans are governed by either ERISA (the private employer plans) or the Patient Protection and Affordable Care Act (“ACA”) (the government employer plans). The Plaintiffs in DB Healthcare are twelve medical facilities located in and around Phoenix, Arizona, and ten nurse practitioner employees of those facilities (collectively, “DB Healthcare Providers”). The Plaintiff in Advanced Women’s Health Center is a medical facility in Bakersfield, California (“the Center”). Defendants-Ap-pellees Blue Cross Blue Shield of Arizona, Inc. (“Blue Cross”) and Anthem Blue Cross Life and Health Insurance Company (“Anthem”) are health insurers, plan administrators, and/or claims administrators for the relevant employee benefit plans.

The reimbursement disputes in these cases share a number of common facts. In 2010 and 2011, Providers performed certain blood tests and related services for plan subscribers and submitted reimbursement claims to either Blue Cross or Anthem. Blue Cross and Anthem processed the claims and reimbursed Providers. On completion of post-payment reviews, however, the plan administrators determined that Providers were not entitled to reimbursement for the blood tests, albeit for different reasons. In DB Healthcare, Blue Cross determined that the tests were in-vestigational and thus excluded from coverage. In Advanced Women’s Health Center, Anthem determined that the Center used faulty practices to bill for the tests and so was not entitled to reimbursement.

At that point, Blue Cross and Anthem informed Providers that the prior reimbursements for the blood tests were in error and requested repayments totaling $237,000 and $295,912.87, respectively. Providers disputed Blue Cross and Anthem’s authority retroactively to recoup the reimbursements and refused to pay. Blue Cross responded by restating its payment demand to DB Healthcare Providers, threatening to withhold recredentialing for the in-network nurse practitioners, refusing to credential newly hired nurses, and threatening to terminate the relevant provider agreements. Anthem went one step further, withholding reimbursements from Advanced Women’s Health Center in 2013 for unrelated claims as a means of recouping the disputed past payments.

Several types of contracts govern the relationships between the subscribers, the plan administrators, and the providers in each case: (1) Employee benefit plans provide the terms of the insurance provided to the subscribers. (2) Payment authorizations or assignment of benefits forms executed by subscribers assign some rights to the providers. (3) Provider agreements govern the relationships between the providers and the plan administrators. Each of these contracts is relevant to our analysis.

In DB Healthcare, the governing employee benefit plans prohibit patients from assigning any of their rights under the plans to third parties. Despite this prohibition, DB Healthcare Providers’ patients executed “assignment of benefits” forms purporting to assign certain plan rights to DB Healthcare Providers. Unlike in DB Healthcare, the benefits plans in Advanced Women’s Health Center do not prohibit assignment of benefits. The Center’s patients signed forms authorizing Anthem to pay the Center directly for health care services rendered to plan subscribers. Those forms read: “I Hereby Authorize My Insurance Benefits To Be Paid Directly to the Physician And Acknowledge That I Am Financially Responsible for Any Unpaid Balance.”

The provider agreements grant some health care providers in-network status for the benefit plans administered by Anthem or Blue Cross. Five of the ten nurse practitioner Providers are credentialed by Blue Cross as in-network providers and the five others seek such credentialing. Advanced Women’s Health Center is an in-network provider for health plans administered by Anthem. In-network providers agree to a fixed schedule of fees for services and can bill the insurers directly for health care services rendered to plan subscribers. In fact, the provider .agreements require Providers to seek payment for medical services rendered only from the relevant plan administrator, not from patients (subject to limited exceptions).

In response to recoupment strategies by Blue Cross and Anthem, DB Healthcare Providers and the Center, respectively, filed complaints in federal district court. The specific claims in DB Healthcare and Advanced Women’s Health Center differ slightly, although both sets of providers generally allege that the claims administrators violated ERISA when they unilaterally determined that the blood testing procedures and related services were not reimbursable and used various strategies to recoup payments already made.

DB Healthcare Providers alleged two causes of action under ERISA in their complaint. First, they sought injunctive relief regarding Blue Cross’s refusal to credential nurse-practitioners and its threat to cancel provider agreements, alleging that Blue Cross violated ERISA’s prohibition, against retaliation for the exercise of rights guaranteed by employee benefit plans. See 29 U.S.C. § 1140. Second, they sought a declaratory judgment that Blue Cross’s recoupment efforts violate the ERISA Claims Procedure, 29 U.S.C. § 1138, and the ERISA Claims Procedure regulation, 29 C.F.R. § 2560.503-1, which provide procedural protections for ERISA claimants. Specifically, DB Healthcare Providers alleged that Blue Cross violated the requirement that plan administrators notify claimants of adverse benefit determinations within thirty days of receiving a claim.

Advanced Women’s Health Center also challenged Anthem’s recoupment efforts, asserting four causes of action in its complaint, three under ERISA and one under the Declaratory Judgment Act, 28 U.S.C. § 2201. Under ERISA, which governs private employer plans, the Center: (1) sought a declaratory judgment that Anthem’s reversal of benefit determinations and offsetting of asserted overpayment against other reimbursements violate ERISA’s Claims Procedure, 29 U.S.C. § 1133, and the ERISA Claims Procedure regulation, 29 C.F.R. § 2560.503-1, and an injunction precluding such offsetting; (2) sought monetary damages for past recoup-ments; and (3) requested declaratory and injunctive relief regarding Anthem’s alleged violation of its fiduciary duty to plan beneficiaries and participants. Invoking the Declaratory Judgment Act, the Center alleged that the government employee benefit plans administered by Anthem are also subject to the ERISA Claims Procedure regulation and sought a declaratory judgment that Anthem’s recoupment of payments for claims made under those plans was unlawful.

The district courts in both Advanced Women’s Health Center and DB Healthcare dismissed the claims, holding that the health care providers lacked authority to bring claims under ERISA. In Advanced Women’s Health Center, the district court also dismissed the claim brought under the Declaratory Judgment Act, holding that government plans are, by their terms, exempt from the ERISA Claims Procedure regulation. The providers in both cases timely appealed.

II. Discussion

A.

ERISA’s civil enforcement provisions specify which categories of individuals and entities may enforce each of the statute’s protections. The relevant provisions state: “(a) A civil action may be brought — (1) by a participant or beneficiary — (A) for the relief provided for in subsection (c) of this section, or (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; ... (3) by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan.” ERISA § 502(a), 29 U.S.C. § 1132 (a)(1),(3). Providers maintain that they are “beneficiarles]” for purposes of § 502(a) and so may bring suit directly under that statute.

We note, preliminarily, that our cases discussing whether a plaintiff is authorized to sue under ERISA’s civil enforcement provisions often refer to the question as whether the plaintiff has “standing” or “statutory standing” to sue under ERISA. See e.g., Harris v. Amgen, Inc., 573 F.3d 728, 732 (9th Cir. 2009) (examining whether a plaintiff has “standing under ERISA”); Davidowitz v. Delta Dental Plan of Cal., Inc., 946 F.2d 1476, 1477 (9th Cir. 1991) (“Under ERISA, a beneficiary has standing to bring a civil action for non-payment.”). This common shorthand suggests that subject matter jurisdiction may also be at stake. It is not. The question whether Congress has granted a private right of action to a particular plaintiff is not a jurisdictional requirement. “[A] dismissal for lack of statutory standing [under ERISA] is properly viewed as a dismissal for failure to state a claim rather than a dismissal for lack of subject matter jurisdiction.” Vaughn v. Bay Envtl. Mgmt., Inc., 567 F.3d 1021, 1024 (9th Cir. 2009). For clarity on this point, we avoid in this opinion references to Providers’ “stand-mg,” and so turn to the question whether Providers may bring suit directly under ERISA § 502(a).

“[Section] 502(a) [of ERISA] ... demonstrates Congress’ care in delineating the universe of plaintiffs who may bring certain civil actions.” Harris Tr. & Sav. Bank v. Salomon Smith Barney, Inc., 530 U.S. 238, 247, 120 S.Ct. 2180, 147 L.Ed.2d 187 (2000). With regard to the plaintiffs specified in § 502(a), “Congress presumably determined that a right to enter federal court was necessary to further the statute’s purposes.” Franchise Tax Bd. v. Constr. Laborers Vacation Tr., 463 U.S. 1, 21, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983), superseded by statute on other grounds, 28 U.S.C. § 1441(e).

Among the parties who may sue under ERISA § 502(a) are health plan “beneficiaries.” Providers argue that they are “beneficiaries” under ERISA and so may sue for declaratory relief and money damages under ERISA § 502(a)(1)(B), as well as for injunctive relief under § 502(a)(3). We have held before, and reiterate now, that health care providers are not “beneficiaries” within the meaning of ERISA’s enforcement provisions. Spinedex Physical Therapy USA Inc. v. United Healthcare of Arizona, Inc. emphasized this rule when it held, “a non-participant health care provider ... cannot bring claims for benefits on its own behalf. It must do so derivatively, relying on its patients’ assignments of their benefits claims.” 770 F.3d 1282, 1289 (9th Cir. 2014), cert denied, United Healthcare of Ariz. v. Spinedex Physical Therapy USA Inc., — U.S. -, 136 S.Ct. 317, 193 L.Ed.2d 227 (2015). As Spinedex’s analysis is brief, we expand on it here.

ERISA defines a “beneficiary” 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.” 29 U.S.C. § 1002(8). Here, the employee benefit plans or the plan subscribers, or both, designate Providers to receive direct payment from Anthem or Blue Cross. This remuneration for medical services rendered is not a “benefit” under ERISA.

Although ERISA does not define the word ‘Tenefit,” in isolation, the definition of “employee welfare benefit plans” in ERISA, in conjunction with the common definition of the term “benefit,” supports the conclusion that a payment to a medical provider for services rendered is not properly termed a “benefit” to the provider. ERISA defines “employee welfare benefit plans,” in part, as any plan, fund or program maintained by an employer or an employee organization that “was established or is maintained for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise ... medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment, or vacation benefits, apprenticeship or other training programs, or day care centers, scholarship funds, or prepaid legal services.” Id. § 1002(1). The term “benefit,” in context, quite evidently refers to the specific advantages provided to covered employees, as a consequence of their employment, for particular purposes connected to alleviating various life contingencies.

That statutory usage comports with dictionary definitions of “benefit,” which include “[a] form of compensation, such as paid vacation time, subsidized health insurance, or a pension, provided to employees in addition to wages or salary as part of an employment arrangement.” American Heritage Dictionary of the English Language 168 (5th ed. 2011). The statutory usage is also consistent with a more general definition of “benefit,” “something that promotes or enhances well-being; an advantage.” Id. Neither of these meanings of the term “benefit” suggests that a fee owed in exchange for a service is included.

Both the statutory context and common usage thus illustrate that in the ERISA context, as the Second Circuit has explained, the “[b]enefits to which a beneficiary [under ERISA] is entitled are bargained-for goods, such as medical, surgical, or hospital care, ... rather ’than a right to payment for medical services rendered.” Rojas v. Cigna Health & Life Ins. Co., 793 F.3d 253, 257 (2d Cir. 2015) (internal citations and quotation marks omitted). Although the “benefits” provided under ERISA plans are often monetary rather than “goods” in the tangible sense, they are provided only in the event of specified contingencies, as part of an overall compensation package. They are not payment in exchange for any discrete services.

Health care providers’ patients are thus the ones who receive ERISA health benefits, not the providers themselves. Neither a designation in a health benefit plan nor an assignment by a patient allowing a health care provider to receive direct payment for health services entitles a health care provider to “benefits” on its own behalf. Providers are therefore not ERISA “beneficiarles].” They do not have direct authority as beneficiaries to sue under ERISA § 502(a)(1)(B) or § 502(a)(3) to recover payments due them for services rendered, or otherwise to enforce the statute’s protections.

This holding is consistent with the decisions of other circuits, which have uniformly concluded that health care providers are not “benefieiar[ies]” for ERISA purposes, even when the providers are contractually authorized to receive direct payment for medical services rendered subscribers. See Brown v. BlueCross BlueShield of Tenn., Inc., 827 F.3d 543, 546 (6th Cir. 2016); Pa. Chiropractic Ass’n v. Indep. Hosp. Indem. Plan, Inc., 802 F.3d 926, 930 (7th Cir. 2015); Rojas, 793 F.3d at 257-58; Pascack Valley Hosp. v. Local 464A UFCW Welfare Reimbursement Plan, 388 F.3d 393, 400 (3d Cir. 2004), as amended (Dec. 23, 2004); Hobbs v. Blue Cross Blue Shield of Ala., 276 F.3d 1236, 1241 (11th Cir. 2001); Ward v. Alt. Health Delivery Sys., Inc., 261 F.3d 624, 627 (6th Cir. 2001).

In the face of this great weight of authority, Providers insist that many circuits have held that health care providers are ERISA “beneficiaries.” Not so. The cases Providers rely upon in support of this assertion did not so conclude.

City of Hope National Medical Center v. Healthplus, Inc., 156 F.3d 223, 224-26 (1st Cir. 1998), and Kennedy v. Connecticut General Life Insurance Co., 924 F.2d 698, 701 (7th Cir. 1991), both involved providers that held assignments from their patients and so had derivative authority to sue for their patients’ benefits. Although Kennedy suggested that the health care provider was a “beneficiary,” a close look at the opinion reveals that the Seventh Circuit’s language covered only derivative authority suits, as later cases have clarified. See, e.g., Davidowitz, 946 F.2d at 1479 (“[T]he plaintiff health care provider in Kennedy sued under ... an assignment.”). In Pennsylvania Chiropractic Ass’n, the Seventh Circuit eliminated any doubt in this regard when it held that health care providers “are not ‘beneficiaries’ as ERISA uses that term.” 802 F.3d at 930.

Neither Ruttenberg v. U.S. Life Insurance Co., 413 F.3d 652 (7th Cir. 2005), nor Peterson v. American Life & Health Insurance Co., 48 F.3d 404 (9th Cir. 1995), involved recovery by health care providers of payments due. Instead, both cases concerned patient claims for health plan coverage, and considered whether an independent contractor and a partner in a company — workers who do not fit the traditional definition of an employee — are ERISA beneficiaries. Ruttenberg, 413 F.3d at 661-63; Peterson, 48 F.3d at 408.

In sum, Spinedex, consistently with all other circuits that had addressed the question, held that health care providers are not “beneficiarles]” within the meaning of § 502(a) of ERISA and may not bring suit under ERISA in that capacity. We reaffirm that holding of Spinedex.

B.

Providers do not enjoy derivative authority to bring their claims either. As a general matter, “ERISA does not forbid assignment by a beneficiary of his right to reimbursement under a health care plan to the health care provider.” Misic v. Bldg. Serv. Emps. Health and Welfare Tr., 789 F.2d 1374, 1377 (9th Cir. 1986) (per curiam). So a health care provider in appro priate circumstances can assert the claims of an ERISA participant or beneficiary. See id. Here, however, Providers lack such derivative authority to sue under ERISA § 502(a)(1)(B) or § 502(a)(3) given the nature of the governing agreements and of the purported assignments.

(i) The providers in DB Healthcare lack derivative standing because they do not hold valid assignments. The governing employee benefit plans contain non-assignment clauses that override any purported assignments. “ERISA welfare plan payments are not assignable in the face of an express non-assignment clause in the plan.” Davidowitz, 946 F.2d at 1481.

(ii) The Center lacks derivative authority for a different reason. Their provider agreement with Anthem permits assignment, and payment authorization forms in the record could be construed as assigning the Center limited rights. But the claims made here fall outside the scope of those assigned rights.

The Center’s patients signed forms that read, “I Hereby Authorize My Insurance Benefits to Be Paid Directly to the Physician.” These forms do not use the terms “assign” or “assignment,” but no such specific language is necessary to effectuate an assignment of rights. “No words of art are required to constitute an assignment; any words that fairly indicate an intention to make the assignee owner of a claim are sufficient.” 29 Williston on Contracts 74:3 (4th ed.). We shall assume therefore that these payment authorizations assign the physicians limited rights to payment under ERISA. See BlueCross BlueShield of Tenn., 827 F.3d at 544 n.1, 546-47 (finding a limited assignment of rights where an “Assignment of Benefits Form” stated “I request that payment of authorized insurance benefits .;. be made on my behalf to [my provider]”).

Assuming the payment authorizations in Advanced Women’s Health Center effectuated an assignment of some rights, however, does not end the inquiry. “The question of what rights and remedies pass with a given assignment depends upon the intent of the parties.” Pac. Coast Agr. Exp. Ass’n v. Sunkist Growers, Inc., 526 F.2d 1196, 1208 (9th Cir. 1975). We therefore consider whether the claims the Center advances in this litigation are within the scope of the assignments on which it relies. See Spinedex, 770 F.3d at 1292.

Here, the Center seeks injunctive relief to prevent Anthem from offsetting asserted overpayments against other payments due the Center (which for the most part, of course, relate to different patients than the ones to whom the contested services were provided); declaratory relief that Anthem’s recoupment efforts are unlawful; monetary damages for benefits allegedly unlawfully recouped; and declaratory and injunctive relief for breach of fiduciary duty. To determine whether the payment authorization forms assigned the Center the right to pursue these claims, we look at the language and context of the authorizations.

Our analysis in Spinedex, 770 F.3d at 1292, is instructive. There, health plan subscribers signed forms assigning the provider the right to seek payment of claims directly from health plan administrators. Id. In that context, the forms provided, in part, “[t]his is a direct assignment of my rights and benefits under this policy.” Id. (capitalization removed). Notwithstanding the broad language of the assignment— considerably broader than the language here — the court held that “the entirety of the Assignment indicates that patients intended to assign to [the provider] only their rights to bring suit for payment of benefits,” and that the provider had “no right to bring claims for breach of fiduciary duty.” Id.

Even more clearly than in Spinedex, the language and context of the assignment here indicates the plan subscribers’ intended to assign, at most, the right to payment of benefits and the associated right to sue for non-payment. The authorization is located on a form that lists types of medical services. The assignment language refers only to direct payment of insurance benefits to the physician, with no reference to any broader rights. There is no doubt that this authorization does not encompass the Center’s claims for declaratory and injunc-tive relief with regard to offsetting of over-payments against largely unrelated claims, or for breach of fiduciary duty. See id.

Nor does the authorization reflect an assignment that encompasses the Center’s claims for declaratory relief and money damages regarding recoupment of alleged overpayments. We have held that “because a health care provider-assignee stands in the shoes of the beneficiary, such a provider has standing to sue under § 502(a)(1)(B) to recover benefits due under the plan.” Blue Cross of Cal. v. Anesthesia Care Ass’n, 187 F.3d 1045, 1051 (9th Cir. 1999). But the Center’s claim regarding recoupments is not a suit to recover benefits under the ERISA plans. Rather, the claim relates to Anthem’s process of posUpayment claims review and practice of recouping erroneous payments. These are claims that the Center’s “patient-assignors could not assert,” id. as any recoupment would come from Providers not from the patients. See n.8, infra. The claims therefore do not fall within the scope of the assignment. See Anesthesia Care Ass’n, 187 F.3d at 1051. Although a “dispute ... over the right to payment, ... might be said to depend on the patients’ assignments to the Providers,” the dispute over recoupment “depends on the terms of the provider agreements,” not on the assignment. Id.; see also BlueCross BlueShield of Tenn., 827 F.3d at 548-49 (in an analogous ease, holding that a health care provider’s claims regarding recoupment were “outside the scope of [the provider’s] assigned standing,” because “the patient-assignors are not party to the Provider Agreement that governs the recoupment process, and [the insurer] has no right to recoup payments for medical care made to its members”).

In sum, Providers are not “beneficiaries” expressly authorized to sue to enforce ERISA’s provisions, and they cannot bring their claims derivatively as assignees on behalf of plan beneficiaries. Providers therefore are not authorized to bring their claims in federal court under ERISA. Accordingly, we affirm the district courts’ dismissals of the ERISA claims in both DB Healthcare and Advanced Women’s Health Center

C.

We caution that our conclusions regarding the reach of ERISA’s statutory remedies do not necessarily preclude Providers from contesting the recoupment and offsetting actions they dispute. Claims are preempted by ERISA only if two conditions are met: (1) the litigant could have brought the claim under ERISA’s civil enforcement provision, and (2) the claims have no basis in an independent legal duty. Aetna Health Inc. v. Davila, 542 U.S. 200, 210, 124 S.Ct. 2488, 159 L.Ed.2d 312 (2004). Any state law claims for breach of the provider agreements could not have been brought under ERISA and would have an independent legal basis. Such claims would not be preempted by ERISA. See Anesthesia Care Ass’n, 187 F.3d at 1050-52 (holding that because a health care provider’s claim that Blue Cross of California improperly amended its schedule of fees was governed by a provider agreement rather than an employee benefit plan, that claim was properly brought in state court and not preempted by ERISA).

D.

Finally, the district court properly dismissed the Center’s claims under the Declaratory Judgment Act, 28 U.S.C. § 2201(a), disapproving Anthem’s recoupment program with respect to government employee benefits plans. The government employee benefits plans are governed by the ACA, not by ERISA. See 29 U.S.C. § 1003(b)(1); 42 U.S.C. § 300gg-21(a)(l).

The Center does not have authority to bring its claims directly under ERISA— because, among other reasons, the government plans are not covered by ERISA § 502(a), and also because the Center is not, in any event, an ERISA beneficiary, see Part IIA, supra. For the reasons explained earlier, see Part IIB, supra, the Center cannot sue derivatively via patient assignment either. Nor can the Center be considered a “beneficiary” under the government plans themselves, for essentially the same reasons it is not a “beneficiary” under ERISA. As the Center has not identified any other basis for the claims concerning the government plans, those claims cannot go forward.

III. Conclusion

For the foregoing reasons we AFFIRM the judgments of the district courts in Advanced Women’s Health Center and DB Healthcare.

      . We use the term "subscribers” to refer to individuals covered under the health benefit plans. We avoid the terms "participant” and "beneficiary” to describe these individuals because the precise meaning of those terms is central to this dispute.

      . The record does not include all the employee benefit plans at issue in the case. DB Healthcare Providers submitted an exemplar plan in support of their complaint. The sample plan includes a non-assignment clause, which reads, in relevant part: “The benefits contained in this plan, and any right to reimbursement or payment arising out of such benefits, are not assignable or transferable, in whole or in part, in any manner or to any extent, to any person or entity....” The district court relied on this provision in the exemplar plan to find that the governing plans contained valid non-assignment clauses. This finding is not contested on appeal.

      . In DB Healthcare, just the in-network nurse practitioners, not the out-of-network practitioners or the facilities themselves, have provider agreements with Blue Cross.

      . DB Healthcare Providers also brought a state law breach of contract claim with respect to government employee benefit plans. The district court declined to exercise supplemental jurisdiction over the state law claim, dismissing the claim without prejudice.

      . The district court in Advanced Women’s Health Center dismissed the Center’s claims for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). That error, however, does not affect our analysis, because we review dismissals under both Rule 12(b)(1) and Rule 12(b)(6) de novo. See Vaughn, 567 F.3d at 1024.

      . The exemplar assignment of benefits forms submitted by DB Healthcare Providers to the district court are blank and unsigned. As a result, the district court found that DB Healthcare Providers did not plead sufficient facts to allege that their patients had assigned them any rights. Because we find the non-assignment clause overrides any purported assignment, we decline to review the determination that no patient assignments existed.

      . An assignment of the right to receive payment of benefits generally includes the limited right to sue for non-payment under § 502(a)(1)(B), which empowers a participant or beneficiary to bring a civil action “to recover benefits due to her under the terms of the plan.” See Spinedex, 770 F.3d at 1292, 1297 (recognizing that patients had assigned the health care provider their “rights to bring suit for payment of benefits”); Misic, 789 F.2d at 1377-79 (holding that a physician, "as as-signee of beneficiaries pursuant to assignments valid under ERISA, has standing to assert the claims of his assignors,” and so can sue to recover benefits under § 502(a)(1)(B) of ERISA); see also BlueCross BlueShield of Tenn., 827 F.3d at 547; N. Jersey Brain & Spine Ctr. v. Aetna, Inc., 801 F.3d 369, 372 (3d Cir. 2015).

      . Because we affirm the district courts’ decisions on the ground that Providers are not statutorily or contractually authorized to bring suit, we do not consider the merits of Providers' claims that the plan administrators violated the ERISA Claims Procedure regulation. We do note, however, that the regulation applies only to "claims for benefits by participants and beneficiaries.” See 29 C.F.R. § 2560.503-l(a) (emphasis added). That language does not seem to provide procedural protections to health care providers in payment disputes with claims administrators where, as here, those providers have no recourse against the plan subscribers. See Dep’t of Labor, Employee Benefits Security Administration, Benefit Claims Procedure Regulation FAQs, A-8, available at https://www.dol.gov/ ebsa/faqs/faq_claims_proc_reg.html (last viewed February 21, 2017) ("The regulation does not apply to requests by health care providers for payments due them — rather than due the claimant — in accordance with contractual arrangements between the provider and an insurer or managed care organization, where the provider has no recourse against the claimant for amounts, in whole or in part, not paid by the insurer or managed care organization.").