text:
    Mario Gilberto MORALES-MORALES, Petitioner, v. Jefferson B. SESSIONS, III, Attorney General of the United States, Respondent.
    No. 16-1774
    United States Court of Appeals, First Circuit.
    May 22, 2017

      George Charles Maroun, Jr., Methuen, MA, for petitioner.
    Allison Frayer, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Benjamin C. Mizer, Principal Deputy Acting Assistant Attorney General, M. Jocelyn Lopez Wright, Acting Assistant Director, Office of Immigration Litigation, and Melissa Neiman-Kelting, Senior Litigation Counsel, Office of Immigration Litigation, for respondent.
    Before HOWARD, Chief Judge, THOMPSON and BARRON, Circuit Judges.

       Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Jefferson B. Sessions, III has been substituted for former Attorney General Loretta E. Lynch as the respondent.

   BARRON, Circuit Judge.

Mario Gilberto Morales-Morales (“Morales”) petitions for review of a decision of the Board of Immigration Appeals (“BIA”) denying Morales’s requests for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We deny the petition.

I.

Morales is a citizen of Guatemala. He entered the United States unlawfully in 2012. After immigration authorities began removal proceedings against him, Morales applied for asylum, withholding of removal, and protection under the CAT.

In the proceedings before the Immigration Judge (“IJ”), Morales offered the following account in testimony that the IJ determined to be credible. Morales joined the Partido Party in 2011 and began distributing the party’s fliers in Guatemala City approximately twice a week. Roughly a year later, Morales, along with four other members of the Partido Party, was beaten by members of a different political party—the Lider Party—who retaliated against Morales for his refusal to join their ranks and help them with “publicity.” These members of Lider beat him “unconscious,” such that Morales required hospitalization. They also broke his arm.

After Morales returned home from the hospital, he received “threatening phone calls.” Morales’s uncle, the IJ noted, was also a Partido member and had “disappeared in May of 2011.” The uncle, too, “had been receiving threatening phone calls and his whereabouts are still unknown.”

Morales did not report either the beating or the phone calls to the police because “the police are corrupt” and because he feared retaliation from Lider partisans. Morales also testified that he did not inform the police about the beating because “the people who broke his arm would go to jail, but when they got out, they would seek retribution.”

The IJ found the following additional facts. First, Morales’s parents remain in Guatemala, but no longer live in Guatemala City, the country’s capital. Second, Morales’s siblings—two brothers and a sister—also continue to reside in Guatemala. Third, Morales “had no[] information regarding whether any harm had befallen” the other members of the Partido Party' who were attacked the same day as Morales.

Nevertheless, the IJ denied Morales the relief that he sought. The IJ first addressed Morales’s application for asylum. Pursuant to 8 U.S.C. § 1158(b)(1)(A), an applicant may be granted asylum “if the Secretary of Homeland Security or the Attorney General determines that such alien is a refugee within the meaning of’ 8 U.S.C. § 1101(a)(42)(A). In turn, § 1101(a)(42)(A) requires that, to qualify as a refugee, “an applicant must prove either past persecution or a well-founded fear of future persecution if repatriated, on account of one of five enumerated grounds: race, religion, nationality, membership in a particular social group, or political opinion.” Giraldo-Pabon v. Lynch, 840 F.3d 21, 24 (1st Cir. 2016) (citing 8 U.S.C. § 1101(a)(42)(A)).

The IJ held that Morales had not established past persecution in Guatemala. Looking to the “frequency of the alleged harm,” the IJ emphasized that Morales’s “one encounter with members of the Lider Party”—though it resulted in a severe beating—“[did] not rise to the level of [past] persecution.” Next, noting that establishing past persecution “requires evidence that the government participated in, or at least acquiesced in, the alleged harm,” the IJ held that Morales had not presented evidence sufficient to show that the Guatemalan government was unable or unwilling “to control the conduct of private actors.” The IJ also concluded that Morales could not establish a likelihood of future persecution in Guatemala, given that his “parents and siblings remain unharmed” in that country. Nor, the IJ stated, did Morales offer any information about the fate of four other Partido members who were beaten the same day he was that would tend to suggest that they were further harmed on the basis of their political affiliation or beliefs.

The IJ then rejected Morales’s application for withholding of removal and protection under the CAT. Withholding of removal, the IJ noted, requires meeting a more demanding standard than the well-founded fear test that governs grants of asylum. Thus, the IJ concluded that, in light of the ruling denying Morales’s asylum application, Morales had, by definition, also failed to satisfy this heightened, dear-probability test for withholding of removal. And, the IJ noted, much like the asylum statute, the CAT and Department of Homeland Security (“DHS”) regulations that implement it require an applicant to demonstrate that he will be tortured in his home country “by or at the instigation of or with the consent or acquiescence ... of a public official or person acting in official capacity.” In consequence, the IJ held that Morales could not obtain relief under the CAT.

The BIA affirmed the IJ’s decision. The BIA explained that the “level of mistreatment” Morales was found to have suffered “does not amount to persecution,” and the BIA relied for that conclusion on our decisions in Cabas v. Holder, 695 F.3d 169, 174 (1st Cir. 2012), Khan v. Mukasey, 549 F.3d 573, 575 (1st Cir. 2008), and Topalli v. Gonzales, 417 F.3d 128, 132 (1st Cir. 2005).

The BIA also upheld the IJ’s “determination that the respondent did not establish that the authorities in Guatemala are unable or unwilling to protect him from violence in Guatemala.” The BIA explained that, “[i]n order to qualify as persecution for purposes of asylum or withholding of removal, an act must be inflicted either by the government or by individuals or groups the government is unable or unwilling to control.” But, the beating Morales suffered was perpetrated by private actors, and the BIA found that Morales had failed to demonstrate that “reporting the crime to Guatemalan police would be futile.”

The BIA also agreed that Morales did not have a well-founded fear of future persecution. Morales’s parents are unharmed, even though they remain in Guatemala. Likewise, the BIA agreed that Morales’s two brothers also remain unharmed, although the BIA did not appear to make any finding in that regard with respect to Morales’s sister. And, the BIA noted, Morales admitted that his “Partido Party colleagues and friends who were also assaulted” on the same day as Morales “remain in Guatemala and that, to his knowledge, they were not harmed because they moved.”

The BIA then held: “we agree with the Immigration Judge that the respondent did not meet his burden of proof to show that his fear of persecution is country-wide and that it is unreasonable to relocate to avoid harm.” Like the IJ, the BIA went on to address whether Morales could “satisfy the higher burden of proof required for withholding of removal,” and concluded that he could not. And the BIA also concluded that Morales could not meet the requirements for protection under the CAT because the evidence did “not establish that it is ‘more likely than not’ that he will be tortured by or with the acquiescence of a public official, or other person acting in an offíciál capacity in Guatemala.”

Morales now petitions for review of the BIA’s decision.

II.

“Usually, this court confines its review to the BIA’s order that is being challenged.... However, when as here, the BIA adopts the decision of the IJ, and provides some analysis of its own, [we] review! ] both decisions.” Lumataw v. Holder, 582 F.3d 78, 83 (1st Cir. 2009) (quoting Rashad v. Mukasey, 554 F.3d 1, 4 (1st Cir. 2009)). We treat the rulings below that Morales has not met his burden of “demonstrat[ing] past persecution” as “factual determination^] subject only to the highly deferential substantial evidence standard.” Id. at 84 (citing INS v. Elías-Zacarías, 502 U.S. 478, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). Thus, the agency’s decisions “must be upheld if supported by reasonable, substantial, and probative evidence on the record considered as a whole,” and may be “reversed only if the evidence presented by [the applicant] was such that a reasonable factfinder would have to conclude that the requisite fear of persecution existed.” Elías-Zacarías, 502 U.S. at 481, 112 S.Ct. 812 (citations omitted).

An alien who has suffered past persecution is presumed to have a well-founded fear of persecution and thus to be entitled to a grant of asylum. Chen v. Lynch, 814 F.3d 40, 45 (1st Cir. 2016) (quoting Singh v. Holder, 750 F.3d 84, 86 (1st Cir. 2014)). Morales contends that the BIA erred in concluding that the level of mistreatment he suffered—because it involved only a single beating followed by threatening phone calls—did not rise to the level of mistreatment that could qualify as persecution. And he attempts to distinguish the cases on which the BIA relied in concluding otherwise.

But even if there were some basis for distinguishing those cases, “[i]n order to qualify as a refugee” on the basis of past persecution, Morales must also show that the harm he suffered (assuming it was of a kind that could qualify as persecution) was “the direct result of government action, government-supported action, or government unwillingness or inability to control private conduct.” Guaman-Loja v. Holder, 707 F.3d 119, 123 (1st Cir. 2013) (citation and modifications omitted). Or, put otherwise, he “must demonstrate that the government would have been unwilling or unable to pursue these lines of redress on the petitioner’s behalf.” Id at 124 (citation and modifications omitted). Yet, despite the fact that the BIA and the IJ ruled that Morales had failed to make the showing that the harm he had suffered was attributable to action—or inaction—by the government, Morales makes no argument in his briefing to us as to how either the BIA or the IJ erred in that regard, and so we may fairly deem that claim abandoned. See Anacassus v. Holder, 602 F.3d 14, 19 nn.5, 7 (1st Cir. 2010) (holding that undeveloped claims are deemed waived).

Moreover, we note that the record contains substantial evidence to support the BIA’s and the IJ’s finding that Morales failed to meet his burden of showing the requisite government action or inaction. To be sure, a government’s failure to act on credible reports of private abuse can constitute inaction. See Ivanov v. Holder, 736 F.3d 5, 13-14 (1st Cir. 2013) (emphasizing that authorities’ failure to respond to the petitioner’s and the petitioner’s parents’ reports of severe beatings by skinheads “signals their unwillingness or inability to control [the petitioner’s] persecutors”). And, the failure by a petitioner to make such a report is not necessarily fatal to a petitioner’s case if the petitioner can demonstrate that reporting private abuse to government authorities would have been futile. See Pavlova v. INS, 441 F.3d 82, 91 (2d Cir. 2006) (concluding that the petitioner had met her burden of showing that the “Russian government was unwilling to control [private] religiously-motivated mistreatment of [a religious minority group]” in part because the petitioner “testified that, based on her own experiences with police inaction ... she ‘had come to understand that [the private group] had some kind of relationship with the police and that realistically the police wouldn’t do anything to help us’ ”); Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1058 (9th Cir. 2006) (holding that an applicant for withholding of removal “need not have reported ... persecution to the authorities if he can convincingly establish that doing so would have been futile or have subjected him to further abuse”).

But here, substantial evidence in the record supports the finding made below that Morales failed to demonstrate that the reason he did not report the mistreatment he suffered was that it would have been futile to do so. Morales testified that it was his belief that the police were “corrupt,” but we have previously explained that a failure to report mistreatment— even if based on the petitioner’s subjective belief that authorities are corrupt—is not, without more, sufficient to show that the mistreatment was attributable to the government, whether through action or inaction. See Barsoum v. Holder, 617 F.3d 73, 80 (1st Cir. 2010) (affirming the agency’s finding of no past persecution because, although the petitioner claimed that the police “failed to investigate his story” after an initial visit to the authorities, the petitioner nevertheless “never again sought their help”); Orelien v. Gonzales, 467 F.3d 67, 72 (1st Cir. 2006) (denying the petition for review because “the petitioner did not offer a scintilla of evidence to show that ... he ... sought governmental protection from the maraudings of [a] jealous coworker, let alone that the authorities could not or would not provide protection”); see also Guaman-Loja, 707 F.3d at 124 (upholding the agency’s finding that the petitioner had failed to show past persecution where the “individuals who allegedly persecuted [the petitioner] were without an apparent connection to the government, and [the petitioner] never sought aid or protection from the police or local authorities”); Galicia v. Ashcroft, 396 F.3d 446, 448 (1st Cir. 2005) (upholding the IJ’s conclusion that the petitioner “did not show that the harassment he suffered was by the government or a group the government could not control” in part because the “beating [the petitioner] received was by young men, including one he knew from his church, and [the petitioner] made no effort to contact the authorities or any other group in the country that might be able to help him”).

Moreover, Morales also testified that if he had reported the incidents that ground his claim of persecution to authorities, the perpetrators “would go to jail.” And while Morales did testify to his concern that the perpetrators would seek to harm him again upon their release, such concern regarding what might happen after authorities did take the action that Morales believed would be taken does not suffice to demonstrate that the authorities were unable or unwilling to take action to protect him. See Ortiz-Araniba v. Keisler, 505 F.3d 39, 42 (1st Cir. 2007) (“An applicant must show the government’s acquiescence in the persecutor’s acts or its inability or unwillingness to investigate and punish those acts, and not just a general difficulty preventing the occurrence of particular future crimes.” (emphasis in original)); Silva v. Ashcroft, 394 F.3d 1, 7 (1st Cir. 2005) (affirming the BIA’s finding that the petitioner did not suffer past persecution given a “lack of proof that [government] authorities would be unable or unwilling to do their duty, and thus safeguard the petitioner and his family”).

Because Morales’s contention in his brief that he has a well-founded fear of persecution depends entirely on his contention that the BIA and the IJ erred in ruling that he had not suffered past persecution, he provides us with no basis for reversing the agency’s ruling denying his application for asylum. Nor does Morales offer us any basis on which to conclude that he could satisfy the even-more-demanding clear-probability test necessary to qualify for withholding of removal. See, e.g., INS v. Cardoza-Fonseca, 480 U.S. 421, 449-450, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). Morales’s application for protection under the CAT likewise fails for substantially the same reason as do his challenges to the denials of his request for asylum and withholding of removal. See Romilus v. Ashcroft, 385 F.3d 1, 8 (1st Cir. 2004) (“[A]n applicant must demonstrate that any torture he will suffer would be at the hands of the government or with the consent or acquiescence of the government.” (citing Guzman v. INS, 327 F.3d 11, 17 (1st Cir. 2003))).

III.

The petition for review is denied.

      . We note that the fact that Morales's family members remain in Guatemala and have not been harmed does not, by itself, foreclose a finding that there is "a pattern or practice” in Guatemala "of persecution of a group of persons similarly situated to the applicant.” 8 C.F.R. § 1208.13(b)(2)(iii) (emphasis added). Not all family members are "similarly situated.” See, e.g., Chen v. Holder, 551 Fed.Appx. 580, 582-83 (1st Cir. 2013). The "lack of harm” to remaining family members in these circumstances is "entitled to weight in the decisional calculus” only where the family members are "similarly situated” and "the record does not provide a satisfactory differentiation between [the] petitioner and similarly-situated family members.” Vasili v. Holder, 732 F.3d 83, 91 (1st Cir. 2013) (internal citations omitted). In this case, the BIA, to its credit, acknowledged Morales’s argument that his family members were not members of the Partido Party.


source: Caselaw Access Project

author: GUIDO CALABRESI, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Choudry Muhammad KHALIL, Defendant-Appellant.
    Docket No. 15-3819-cr
    August Term, 2016
    United States Court of Appeals, Second Circuit.
    Argued: April 20, 2017
    Decided: May 16, 2017
    For additional opinion, see 2017 WL 2126594.
    FOR APPELLANT: Andrew H. Frei-feld, Law Office of Andrew Freifeld, New York, NY.
    FOR APPELLEE: Matthew J. Jacobs (Emily Berger, Alexander A. Solomon, on the brief), Assistant United States Attorneys, for Bridget M. Rohde, Acting United States Attorney for the Eastern District of New York, Brooklyn, NY.
    Before: CALABRESI, WESLEY, and LOHIER, Circuit Judges.
   GUIDO CALABRESI, Circuit Judge:

Defendant-Appellant Choudry Muhammad Khalil appeals from a judgment of the United States District Court for the Eastern District of New York (Mauskopf, /.) following his conviction for (1) smuggling, conspiring to smuggle, transporting, conspiring to transport, and harboring an alien in violation of 8 U.S.C. § 1324; (2) transferring and conspiring to transfer false identification documents in violation of 18 U.S.C. § 1028; and (3) making false statements to federal agents in violation of 18 U.S.C. § 1001. On appeal, Khalil argues that the district court erred in denying his motion for judgments of acquittal on several counts of his conviction, that the district court constructively amended the indictment, and that the district court misapplied the United States Sentencing Guidelines.

Most of Khalil’s contentions are dealt with in a summary order filed simultaneously with this opinion. Here, we address only Khalil’s argument that he should have been acquitted of transporting an alien within the United States for profit in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and § 1324(a)(1)(B)(i) (Count Four). Khalil asserts that the evidence presented by the Government was insufficient to prove that he transported an alien “in furtherance of’ the alien’s illegal stay in the United States, as required by 8 U.S.C. § 1324(a)(1)(A)(ii). We agree. We therefore reverse the judgment of conviction on Count Four and remand the ease with instructions for the district court to dismiss that count and for de novo resentencing.

I. BACKGROUND

We recount the facts and procedural history of the case only as relevant to the alien transportation charges under Count Four. Because the jury found Khalil guilty on that Count, “we view the evidence in the light most favorable to the government.” United States v. Veliz, 800 F.3d 63, 66 (2d Cir. 2015), cert. denied, — U.S.-, 136 S.Ct. 522, 193 L.Ed.2d 411 (2015) (internal quotation marks omitted).

A. The Enterprise

Khalil and his younger brother Ahmed, both born in Pakistan, became United States citizens in 2001 and 2008, respectively. At least as early as 2002, the brothers were principals of an international passport fraud ring operating primarily in Pakistan, the United States, and the United Kingdom. The organization specialized in manufacturing high-quality identity documents, such as passports, driver’s licenses, and work permits. It also facilitated the illegal entry of undocumented aliens into the United States and Canada, and sometimes helped them to find housing and jobs in these countries. The organization’s clients paid substantial fees for these services, which the brothers began collecting once their clients were established and employed. The record shows that Ahmed worked from Pakistan, London, and New York, while Khalil worked from Queens, New York, where he was also employed as a taxi driver.

B. Transportation of Rafique from Queens to Pennsylvania Station

In 2002, Ahmed agreed to smuggle Muhammad Nasir Rafique, a Pakistani man, into the United States for $25,000. Ahmed provided Rafique with a false United Kingdom passport and arranged for his air travel using that passport from London to New York City. Upon Rafique’s arrival in New York City, Ahmed and Khalil, using fraudulent licenses, helped Rafique secure employment as a taxi driver. At Ahmed’s direction, Rafique began to repay his $25,000 debt in weekly installments.

In early 2010, Rafique told Khalil that he wanted a fake British passport. Rafique believed that a fake British passport would enable him to obtain legal status in the United States. After Rafique had made a $1,000 down payment on the passport, Khalil recommended that Rafique instead use the passport to travel to Canada, explaining that he and Ahmed had sent other individuals to Canada, where they had successfully obtained legal status. Rafique agreed to this plan.

In late 2010, Khalil informed Rafique that the passport was ready. In the early morning of December 10, 2010, Khalil drove his taxi to pick up Rafique in Queens. Khalil gave the fake passport to Rafique and then drove him to Pennsylvania Station in Manhattan, where Khalil parked the car and bought Rafique a train ticket to Montreal. Rafique boarded the Canada-bound train but was arrested by United States Customs and Border Protection officers just before reaching the border.

C. Procedural History

On April 9, 2015, a grand jury in the United States District Court for the Eastern District of New York returned a ten-count, third superseding indictment against Khalil.

A jury trial began in April 2015. Khalil moved for a judgment of acquittal on each count pursuant to Rule 29 of the Federal Rules of Criminal Procedure (“Rule 29”). After the close of the Government’s and Khalil’s cases, the district court denied the motion. The jury convicted Khalil on all ten counts.

On November 5, 2015, the district court imposed: (a) a 51-month sentence on each count to run concurrently, followed by 3 years of supervised release; (b) a judgment of forfeiture; and (c) a $1,000 special assessment. Khalil, who was released on bond at the commencement of the case, was remanded upon conviction, and has been imprisoned since.

II. DISCUSSION

A. Standard of Review

We review the’ denial of a Rule 29 motion arguing sufficiency of the evidence de novo. United States v. Soler, 759 F.3d 226, 229 (2d Cir. 2014). In doing so, we ask “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

B. Sufficiency of the Evidence: Transportation of Rafique

Khalil was convicted on Count Four of violating 8 U.S.C. § 1324(a)(1)(A)(ii), which provides that the offense of unlawfully transporting an alien within the United States is committed by any person who:

knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, transports, or moves or attempts to transport or move such alien within the United States by means of transportation or otherwise, in furtherance of such violation of law

8 U.S.C. § 1324(a)(1)(A)(ii) (emphasis added). With respect to the “in furtherance of’ element of the crime, the district court charged the jury as follows:

[T]he government must prove beyond a reasonable doubt ... that the defendant acted willfully in furtherance of the alien’s violation of law. In order to establish this element, the government must prove that the defendant knowingly and intentionally transported the alien in furtherance of the alien’s unlawful presence in the United States. In other words, the evidence must show a direct and substantial relationship between the transportation and its furtherance of the alien’s unlawful presence in the United States. Transportation of an alien unlawfully within the country is not, by itself, a violation of the statute if it is merely incidental to the alien’s presence in the United States, for the law proscribes such conduct only when it is in furtherance of the alien’s unlawful presence.

App. at 1465-66 (emphasis added). Khalil did not object to these instructions before the district court and does not object to them on appeal. Accordingly, we express no views about their correctness. Cf. United States v. Stonefish, 402 F.3d 691, 695 (6th Cir. 2005) (“In order to find that a defendant has acted ‘in furtherance of such violation of law,’ a court must conclude that the specific intent of the person transporting the illegal aliens was ‘to deliberately assist an alien in maintaining his or her illegal presence’ in this country.” (quoting United States v. 1982 Ford Pick-Up, 873 F.2d 947, 951 (6th Cir. 1989))); United States v. Barajas-Chavez, 162 F.3d 1285, 1288 (10th Cir. 1999) (en banc) (“[W]e conclude the ‘in furtherance of language is unambiguous. The statute requires that a ... defendant’s transportation or movement of the alien will help, advance, or promote the alien’s illegal entry or continued illegal presence in the United States.”).

Khalil argues that the district court erred in denying his motion for acquittal of this charge because, in driving Rafique to Pennsylvania Station, Khalil

did not intend to “further” [Rafique’s] illegal presence in the United States, nor did the government show any “direct and substantial relationship between the transportation and its furtherance of the alien’s unlawful presence.” To the contrary, the undisputed evidence shows that the purpose of the transportation was to terminate [Ra-fique’s] illegal presence in the United States forthwith.

Def. Br. 38.

Khalil is correct. There was insufficient evidence to allow a rational trier of fact to find, beyond a reasonable doubt, that the Government had proven this element of the crime under any plausible reading of the statute. Although the Government did present evidence that Khalil drove Rafique to Pennsylvania Station in order to facilitate Rafique’s entry into Canada using a fraudulent passport, such a showing alone cannot establish an act in furtherance of Rafique’s unlawful presence in the United States. The Government, for example, does not allege—nor is there anything in the record to suggest—that Khalil intended to help Rafique enter Canada in order for Rafique to somehow return to the United States illegally. We therefore reverse Khalil’s conviction on Count Four.

“[W]hen a count of conviction is overturned due to a ‘conviction error,’ the proper remedy is de novo resentencing, except in circumstances not applicable here.” United States v. Natal, 849 F.3d 530, 538 (2d Cir. 2017) (per curiam) (citing United States v. Powers, 842 F.3d 177, 179-81 (2d Cir. 2016) (per curiam)). Therefore, on remand, Khalil must be resen-tenced de novo.

III. CONCLUSION

For the reasons stated above, we REVERSE the judgment of conviction on Count Four, and REMAND the case with instructions for the district court to dismiss that count and for de novo resentenc-ing. For the reasons stated in the accompanying summary order, we AFFIRM the district court’s judgments of conviction on the remaining Counts.


author: JOHN M. WALKER, JR., Circuit Judge:

text:
    MCCULLOCH ORTHOPAEDIC SURGICAL SERVICES, PLLC, a/k/a Dr. Kenneth E. McCulloch, Plaintiff-Appellant, v. AETNA INC., dba Aetna Health and Life Insurance Co., et al., Defendants-Appellees.
    No. 15-2150-cv
    August Term, 2015
    United States Court of Appeals, Second Circuit.
    Argued: April 26, 2016
    Decided: May 18, 2017

      Kenneth J. McCulloch, Law Office of Kenneth J. McCulloch, New York, NY, for Plaintiff-Appellant.
    Edwakd Wakdell (Patricia A. Lee, on the brief), Connell Foley LLP, New York, NY, for Defendants-Appellees.
    Before: WALKER, CALABRESI, and HALL, Circuit Judges.
   JOHN M. WALKER, JR., Circuit Judge:

We consider in this case whether the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001 et seq., completely preempts an “out-of-network” health care provider’s promissory-estoppel claim against a health insurer where the provider (1) did not receive a valid assignment for payment under the health care plan and (2) received an independent promise from the insurer that he would be paid for certain medical services provided to the insured. We hold that ERISA does not completely preempt such a claim.

BACKGROUND

Plaintiff-appellant McCulloch Ortho-paedic Surgical Services, PLLC, a/k/a Dr. Kenneth E. McCulloch (“McCulloch”) filed this action against defendant-appellee Aet-na Inc. and several of its wholly-owned subsidiaries in New York State Supreme Court. McCulloch, an orthopedic surgeon, seeks reimbursement from Aetna for performing two knee surgeries on a patient who is a member of an Aetna-administered health care plan that is governed by ERISA. McCulloch is an “out-of-network” provider under this plan—he does not have a contract with Aetna and is not identified by Aetna as a participating physician who has agreed to abide by a set fee schedule.

Before performing the patient’s surgeries, McCulloch’s office staff called a number listed on the patient’s Aetna insurance card to obtain information about the patient’s coverage. An Aetna representative informed McCulloch’s staff that the patient was covered by a health care plan administered by Aetna, that the plan provided for payment to out-of-network physicians, and that the plan covered the surgical procedures that McCulloch would be providing for the patient. The Aetna representative stated that McCulloch would be reimbursed at seventy percent of the usual, customary, and reasonable (“UCR”) rate for the knee surgeries and that this rate would be based on an industry-standard schedule.

Relying on Aetna’s promise of reimbursement, McCulloch performed the two surgeries and billed Aetna at the UCR rate for a total of $66,048. McCulloch then submitted a health insurance claim form to Aetna for each surgery (Centers for Medicare and Medicaid Services Form 1500). The claim form has two sections that concern the assignment of payment for medical benefits. First, in Box 13, the insured must authorize the “payment of medical benefits to the undersigned physician ... for services described below.” The parties do not dispute that the patient signed both of the completed forms submitted by McCulloch. Second, in Box 27, the form asks if the provider will “Accept Assignment?”. The parties also do not dispute that McCulloch checked “yes” in response to this question on the forms.

The patient’s health care plan, however, has an anti-assignment provision, which states that:

Coverage may be assigned only with the written consent of Aetna. To the extent allowed by law, Aetna will not accept an assignment to an out-of-network provider, including but not limited to, an assignment of:
• The benefits due under this contract;
• The right to receive payments due under this contract; or
• Any claim you make for damages resulting from a breach or alleged breach, of the terms of this contract.

Despite this provision, Aetna reimbursed McCulloch $842.51 for the first surgery and $14,425 for the second surgery, for a total of $15,267.51.

On February 17, 2015, McCulloch sued Aetna in New York State court on a single cause of action: promissory estoppel. McCulloch alleged that Aetna had made a clear and unambiguous promise to reimburse him for seventy percent of the UCR rate for both knee surgeries ($46,233.60), that he had reasonably and foreseeably relied on that promise, and that he had been injured as a result. McCulloch sought $30,966.09—the difference between seventy percent of the UCR rate ($46,233.60) and what Aetna had paid him ($15,-267.51)—plus interest from August 4, 2011, costs, and other appropriate relief.

On March 17, 2015, Aetna timely removed this action to the United States District Court for the Southern District of New York. Aetna invoked federal-question jurisdiction, asserting that McCulloch’s complaint raised a claim for benefits under an employee welfare-benefit plan governed by ERISA. McCulloch then filed a motion to remand the action to state court. On May 11, 2015, the district court (Katherine B. Forrest, J.) issued an opinion and order denying McCulloch’s motion to remand and directing McCulloch to amend his complaint “to assert ERISA eause[s] of action not later than ... May 25, 2015.” App’x at 233.

On May 21, 2015, McCulloch moved for reconsideration of the district court’s order. He requested that the district court either remand this case to state court or enter a final judgment dismissing the action for failure to state a claim under ERISA. McCulloch did not file an amended complaint. On June 8, 2015, the district court denied McCulloch’s motion for reconsideration and, “[i]n light of plaintiffs refusal to amend,” dismissed this action. McCulloch timely appealed.

LEGAL STANDARD

We review de novo whether a district court has subject matter jurisdiction. Montefiore Med. Ctr. v. Teamsters Local 272, 642 F.3d 321, 327 (2d Cir. 2011). An action filed in state court may be properly removed by a defendant to federal court in “any civil action ... of which the district courts of the United States have original jurisdiction.” 28 U.S.C. § 1441(a). “The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331.

The defendant, as the party seeking removal and asserting federal jurisdiction, bears the burden of demonstrating that the district court has original jurisdiction. See Montefiore, 642 F.3d at 327. Under the “well-pleaded complaint rule,” a defendant generally may not “remove a case to federal court unless the plaintiffs complaint establishes that the case arises under federal law.” Aetna Health Inc. v. Davila, 542 U.S. 200, 207, 124 S.Ct. 2488, 159 L.Ed.2d 312 (2004) (citation and internal quotation marks omitted). There is, however, an exception to this rule. Id. A defendant may properly remove a state-law claim when a federal statute “wholly displaces the state-law cause of action,” such that the claim, “even if pleaded in terms of state law, is in reality based on federal law.” Id. at 207-08, 124 S.Ct. 2488 (citation omitted).

ERISA provides for the wholesale displacement of certain state-law claims. Pursuant to ERISA § 502(a)(1)(B), a participant or beneficiary may bring an action “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.” ERISA § 502(a)(1)(B), codified at 29 U.S.C. § 1132(a)(1)(B). This civil enforcement scheme “completely preempts any state-law cause of action that ‘duplicates, supplements, or supplants’ an ERISA remedy.” Montefiore, 642 F.3d at 327 (citation omitted).

In Aetna Health Inc. v. Davila, the Supreme Court established a two-pronged test to determine whether a state-law claim is completely preempted by ERISA § 502(a)(1)(B) (the “Davila” test). 542 U.S. at 209-10, 124 S.Ct. 2488; see Wurtz v. Rawlings Co., 761 F.3d 232, 242 (2d Cir. 2014). The Davila test is conjunctive—a state-law claim is completely preempted by ERISA only if both prongs of the test are satisfied. Montefiore, 642 F.3d at 328. Under the first prong, the claim must be brought by “an individual [who], at some point in time, could have brought his claim under ERISA § 502(a)(1)(B).” Davila, 542 at 210, 124 S.Ct. 2488. In making this determination, we consider: (1) whether the plaintiff is the type of party that can bring a claim pursuant to § 502(a)(1)(B) and also (2) whether the actual claim that the plaintiff asserts can be construed as a colorable claim for benefits pursuant to § 502(a)(1)(B). Mon-tefiore, 642 F.3d at 328. Under the second prong of the Davila test, the claim must involve “no other independent legal duty that is implicated by a defendant’s actions.” Davila, 542 U.S. at 210, 124 S.Ct. 2488.

DISCUSSION

The district court held that McCulloch’s promissory-estoppel claim was completely preempted by ERISA under the Davila test. The district court found that the first prong of this test was satisfied because McCulloch was assigned the right to receive payment under the plan and because McCulloch’s promissory-estoppel claim could be construed as a colorable claim for benefits pursuant to § 502(a)(1)(B). The district court further found that the second prong of the Davila test was satisfied because the Aetna representative’s oral statements did not give rise to an “independent legal duty” and, instead, that any duty to reimburse McCulloch “ar[ose] out of the terms and conditions of [the patient’s] plan.” App’x at 243-44.

On appeal, McCulloch argues inter alia that his state-law claim is not preempted by ERISA because: (1) he did not receive a valid assignment and thus is not the “type of party” that can bring a claim pursuant to § 502(a)(1)(B) and (2) Aetna’s oral statements gave rise to a duty that was distinct and independent from its obligations under the patient’s health care plan. We agree.

I. Davila, Prong 1, Step 1

We first must determine whether McCulloch is “the type of party that can bring a claim pursuant to § 502(a)(1)(B).” See Montefiore, 642 F.3d at 328. Aetna argues that, despite the health care plan’s anti-assignment provision, it has established a “colorable claim” that McCulloch was assigned the patient’s right to payment for medical benefits and that, thus, McCulloch is the type of party that can bring a claim under ERISA. We find this argument unpersuasive. McCulloch—an “out-of-network” health care provider who plainly did not have a valid assignment for payment—is not the type of party who can bring a claim pursuant to § 502(a)(1)(B).

Under § 502(a), a civil action may be brought “by a participant or beneficiary” of an ERISA plan to recover benefits due to him under the terms of that plan. See 29 U.S.C. § 1132(a)(1)(B). 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.” Id. § 1002(2)(B)(8). Although § 502(a) is narrowly construed to permit only the enumerated parties to sue directly for relief, we have “ ‘carv[ed] out a narrow exception to the ERISA standing requirements’ to grant standing ‘to healthcare providers to whom a beneficiary has assigned his claim in exchange for health care.’ ” Montefiore, 642 F.3d at 329 (quoting Simon v. Gen. Elec. Co., 263 F.3d 176, 178 (2d Cir. 2001)).

In Montefiore Medical Center v. Teamsters Local 272, an “in-network” hospital brought state-law claims against a union’s employee benefit plan that was governed by ERISA. 642 F.3d at 324-25. The hospital sought reimbursement for medical services that it had provided to beneficiaries of the plan. Id. at 325-26. We found that the hospital’s state-law claims were completely preempted by ERISA because, among other things, the hospital had received a valid assignment of the beneficiaries’ right to payment and it was, therefore, the type of party that could bring its claim regarding benefits pursuant to § 502(a)(1)(B). Id. at 328, 333. In making this determination, we noted that the hospital’s reimbursement forms contained a “Y” for “yes” in the space certifying that the beneficiary patients had assigned their claims to the hospital. Id. at 329.

Here, McCulloch submitted claim forms to Aetna indicating that the patient had authorized payment of medical benefits to McCulloch and that McCulloch had accepted this assignment from the patient. As we held in Montefiore, this normally would constitute an assignment to the provider of the patient’s right to payment. See Montefiore, 642 F.3d at 329. Unlike in Montefiore, however, the health care plan in this case has an anti-assignment provision. This provision states that although “[c]overage may be assigned ... with the written consent of Aetna[,] ... Aetna will not accept an assignment to an out-of-network provider.” App’x at 280.

Based on the plain language of this provision, McCulloch’s acceptance of an assignment was ineffective—a legal nullity. See Allhusen v. Caristo Constr. Corp., 303 N.Y. 446, 452, 103 N.E.2d 891 (1952) (holding that a “clear” and “definite” no-assignment provision “may be construed in no other way but that any attempted assignment of either the contract or any rights created thereunder shall be ‘void’ as against the obligor”); see also Physicians Multispecialty Grp. v. Health Care Plan of Horton Homes, Inc., 371 F.3d 1291, 1295 (11th Cir. 2004) (“[W]e are persuaded by the reasoning of the majority of federal courts that have concluded that an assignment is ineffectual if the [ERISA benefit] plan contains an unambiguous anti-assignment provision.”) (collecting eases).

Aetna does not dispute that this provision renders invalid McCulloch’s attempt to enforce the purported assignment. Instead, Aetna argues—and the district court found—that in determining whether preemption applies, we should ignore that the health care plan prohibits any assignment to McCulloch. The. district court noted that “[w]hether the assignment is valid under the terms of the ERISA plan at issue is a question to be decided once an ERISA claim is before the Court” and that the attempted assignment between the patient and McCulloch was “all that [was] required to render [McCulloch] ‘the type of party that can bring a claim pursuant to § 502(a)(1)(B)’ for purposes of complete preemption.” App’x at 241.

The first prong of the Davila test, however, requires that we must assess whether a party has standing to pursue an ERISA claim. See Montefiore, 642 F.3d at 328 n. 7. We have noted that, “[a]bsent a valid assignment of a claim, ... non-enumerated parties lack statutory standing to bring suit under [ERISA] even if they have a direct stake in the outcome of the litigation.” Conn. v. Physicians Health Srvs. of Conn., Inc., 287 F.3d 110, 121 (2d Cir. 2002) (emphasis added); see also Am. Psychiatric Ass’n v. Anthem Health Plans, Inc., 821 F.3d 352, 361 (2d Cir. 2016) (“[W]e have allowed physicians to bring claims under § 502(a) based on a valid assignment from a patient.” (emphasis added)).

If we were to ignore that the health care plan prohibits an assignment to McCulloch in determining whether his claim is preempted, this would lead to a result that is both unjust and anomalous: McCulloch would be barred from pursuing state-law claims in state court on preemption grounds and from pursuing an ERISA claim in federal court for lack of standing. McCulloch—and other third-party providers in similar situations—would be left without a remedy to enforce promises of payment made by an insurer.

Such a rule would not further the principal purpose of ERISA to protect plan beneficiaries and participants. As the United States Department of Labor noted in its amicus brief, this risk of non-payment might lead medical providers to decide not to treat, or to otherwise screen, patients who are participants in certain plans. See Lordmann Enterprises, Inc. v. Equicor, Inc., 32 F.3d 1529, 1533 (11th Cir. 1994) (“[HJealth care providers [must] be able to rely on insurers’ representations as to coverage. If ERISA preempts their potential causes of action for misrepresentation, health care providers ... must either deny care or raise fees to protect themselves against the risk of noncoverage.”); Hospice of Metro Denver, Inc. v. Grp. Health Ins. of Okla., Inc., 944 F.2d 752, 756 (10th Cir. 1991) (“Denying a third-party provider a state law action based upon misrepresentation by the plan’s insurer in no way furthers the purposes of ERISA.”); Mem’l Hosp. Sys. v. Northbrook Life Ins. Co., 904 F.2d 236, 247-48 (5th Cir. 1990) (“[Discouraging health care providers from becoming assignees would undermine Congress’ goal of enhancing employees’ health and welfare benefit coverage.... This does not serve, but rather directly defeats, the purpose of Congress in enacting ERISA.” (citation and internal quotation marks omitted)). Indeed, as the Fifth Circuit has concluded, “[i]f providers have no recourse under either ERISA or state law[,] ... providers will be understandably reluctant to accept the risk of non-payment, and may require up-front payment by beneficiaries—or impose other inconveniences—before treatment will be offered.” Mem’l Hosp. Sys., 904 F.2d at 247.

In sum, while the patient attempted to assign McCulloch the right to payment for the surgeries that McCulloch performed, this assignment was prohibited under the terms of the patient’s health care plan. Aetna—which has not argued on appeal that the anti-assignment provision does not apply—has failed to establish that McCul-loch is the “type of party” who may bring claims pursuant to § 502(a)(1)(B).

II. Davila, Prong 1, Step 2

Although Aetna’s failure to meet any part of the Davila test requires that we reverse the district court’s ruling, we briefly address why Aetna has failed to satisfy the remaining requirements as well. Under the Davila test, we next must determine “whether the actual claim that [McCulloch] asserts can be construed as a colorable claim for benefits pursuant to § 502(a)(1)(B).” Montefiore, 642 F.3d at 328. A colorable ERISA claim exists when the claim “implicates coverage and benefit determinations as set forth by the terms of the ERISA benefit plan.” Id. at 325. On appeal, Aetna argues that McCulloch’s claim “goes to the heart of administration of the Plan and necessarily implicates the patient’s assigned right to payment under the Plan.” Appellees’ Br. at 26. We disagree and conclude that the actual claim asserted here cannot be construed as a colorable ERISA claim for benefits.

In Montefiore, we determined that the “in-network” hospital provider’s suit against the ERISA plan, seeking reimbursement for medical services that the hospital had provided to beneficiaries of the plan, were “colorable claims for benefits pursuant to § 502(a)(1)(B).” Id. The hospital had entered into agreements with preferred provider organizations that it would offer medical services to the plan’s beneficiaries at certain rates. Id. at 326. The preferred provider organizations, in turn, had contracted with the ERISA plan to set reimbursement rates and terms. Id. We concluded that the hospital’s state-law claims of breach of contract and quasi-contract concerned the hospital’s right to be reimbursed as a valid assignee under the ERISA plan and that deciding whether the hospital should be reimbursed would implicate the plan’s coverage and benefits determinations. Id. at 331.

The instant case differs from Montefiore for several reasons. First, because McCul-loch is not a valid assignee and has no plan-related relationship with Aetna, the benefits under the health care plan belong to the patient, not to McCulloch. The health care plan simply provides the context for McCulloch’s claim—if no plan had existed, McCulloch’s office would not have called Aetna to inquire about the patient’s coverage and Aetna likely would not have made such representations.

Second, unlike the contract and quasi-contract claims at issue in Montefiore, McCulloch’s promissory-estoppel claim does not depend on the specific terms of the relevant health care plan or on Aetna’s determination of coverage or benefits pursuant to those terms. The Aetna representative’s statements to McCulloch may have been a mere summary of the patient’s health care plan and the coverage and benefits that would apply to an “out-of-network” provider. But McCulloch’s claim rests on whether Aetna promised to reimburse him for seventy percent of the UCR rate, whether he reasonably and foresee-ably relied on that promise, and whether he suffered a resulting injury. The claim does not implicate the actual coverage terms of the health care plan or require a determination as to whether those terms were properly applied by Aetna. See Stevenson v. Bank of N.Y. Co., 609 F.3d 56, 61 (2d Cir. 2010) (finding promissory-es-toppel claim not preempted by ERISA where, inter alia, the claim’s “resolution does not require a court to review the propriety of an administrator’s or employer’s determination of benefits under such a plan”); see also Wurtz, 761 F.3d at 242 (finding state-law claim not preempted because “the terms of plaintiffs’ ERISA plans are irrelevant to their claims”); Franciscan Skemp Healthcare, Inc. v. Cent. States Joint Bd. Health & Welfare Trust Fund, 538 F.3d 594, 598 (7th Cir. 2008) (finding action arising from insurer’s “alleged misrepresentations made ... in response to [provider’s] inquiry” was not an action “to recover benefits due to [a patient] under the terms of his plan, to enforce [a patient’s] rights under the terms of the plan, or to clarify [a patient’s] rights to future benefits under the terms of the plan”); DaPonte v. Manfredi Motors, Inc., 157 Fed.Appx. 328, 331 (2d Cir. 2005) (summary order) (finding fraudulent-misrepresentation claim not completely preempted where “neither the existence of an ERISA plan nor the interpretation of any such plan’s terms is material” to the claim).

Thus, because McCulloch’s promissory-estoppel claim does not implicate the terms of the plan—and instead is based on the Aetna representative’s oral statements (regardless of whether those statements accurately represent the plan’s terms)— McCulloch has not alleged a colorable claim for benefits pursuant to § 502(a)(1)(B).

III. Davila, Prong 2

Finally, we proceed to the second prong of the Davila test. “Under Davila, a claim is completely preempted only if ‘there is no other independent legal duty that is implicated by [the] defendant’s actions.’ The key words here are ‘other’ and ‘independent.’ ” Montefiore, 642 F.3d at 332 (quoting Davila, 542 U.S. at 210, 124 S.Ct. 2488); see also id. at 328 (noting claim fails to satisfy second prong of Davi-la test where it “could have been brought under ERISA, but also rests on ‘[an]other independent legal duty that is implicated by [the] defendant’s actions’ ” (citation omitted)). Aetna argues that its “only duty arises out of the terms and conditions of’ the ERISA plan and that our decision in Montefiore “squarely foreclose^]” that an independent duty may arise from a provider’s conversation with an insurer to confirm a plan’s coverage. Appellees’ Br. at 31.

We conclude that any legal duty Aetna has to reimburse McCulloch is independent and distinct from its obligations under the patient’s plan. McCulloch’s promissory-estoppel claim against Aetna arises not from an alleged violation of some right contained in the plan, but rather from a freestanding state-law duty grounded in conceptions of equity and fairness. See generally 57 N.Y. Jur. 2d Estoppel, Ratification, and Waiver § 51. Aetna is correct that, in Montefiore, we found that an insurer’s statements in response to a provider’s phone inquiry about plan coverage did not create a “sufficiently independent duty.” Montefiore, 642 F.3d at 332. In making this determination, however, we noted that the “pre-approval process [of calling the insurer] was expressly required by the terms of the Plan itself and is therefore inextricably intertwined with the interpretation of Plan coverage and benefits.” Id. We did not, as Aetna argues and the district court found, establish a per se rule that pre-approval calls with an insurer could not give rise to an independent legal duty.

Here, unlike in Montefiore, McCulloch’s phone call with Aetna was not in furtherance of an ERISA plan. McCulloch was not a valid assignee of the plan, he had no preexisting relationship with Aetna, and he was not required by the plan to pre-ap-prove coverage for the surgeries that he performed. Instead, McCulloch called Aet-na for his own benefit to decide whether he would accept or reject a potential patient who sought his out-of-network services. McCulloch’s conversation with Aet-na, therefore, is not governed by the plan’s terms or “inextricably intertwined” with an interpretation of the plan’s coverage and benefits. Id. at 332.

Franciscan Skemp Healthcare, Inc. v. Central States Joint Board Health & Welfare Trust Fund is illustrative. See 538 F.3d at 594. In that case, the health care provider called the plan administrator “to verify [its] coverage of [a particular patient] and the relevant services” before providing medical services. Id. at 596. A plan representative “made oral representations that they were covered,” and the provider treated the patient. Id. The Seventh Circuit found that the provider’s state-law claims of negligent misrepresentation and estoppel, based on “alleged shortcomings in the communications” between the provider and insurer, did not duplicate, supplement, or supplant the ERISA exclusive remedy. Id. at 598-601. The court made such a determination in part because these claims were not brought by the plaintiff “as a beneficiary, nor [as a party] standing in the shoes of a beneficiary” and the plaintiff was not “arguing about plan terms” or “seeking to recover plan benefits.” Id. at 601; see also Marin Gen. Hosp. v. Modesto & Empire Traction Co., 581 F.3d 941, 950 (9th Cir. 2009) (finding provider’s state-law claims based on oral contract not completely preempted where claims “are in no way based on an obligation under an ERISA plan, and ... would exist whether or not an ERISA plan existed”); cf. Lone Star OB/GYN Assocs. v. Aetna Health Inc., 579 F.3d 525, 532 (5th Cir. 2009) (finding independent obligation existed under a contract between provider and insurer and noting provider’s state-law claim’s “mere reference to or consultation of an ERISA plan” does not mean such claims “duplicate, supplement, or supplant ERISA”); cf Geller v. County Line Auto Sales, Inc., 86 F.3d 18, 23 (2d Cir. 1996) (finding, in context of § 514, state-law fraud claim not preempted by ERISA where “the essence of the plaintiffs’ ... claim does not rely on the ... plan’s operation or management”).

For similar reasons, McCulloch’s promissory-estoppel claim is not completely preempted by ERISA. McCulloch does not seek to enforce the patient’s right to reimbursement. He is suing in his own right pursuant to an independent obligation. In other words, this is simply a suit between a third-party provider and an insurer based on the insurer’s independent promise. See Stevenson, 609 F.3d at 60 (finding promissory-estoppel claim not preempted by ERISA where defendant’s promise to insured gave rise to legal liability, not defendant’s obligations under ERISA plan).

In sum, we conclude that because any legal duty Aetna has to reimburse McCul-loch is independent and distinct from its obligations under the patient’s plan, Aetna has failed to satisfy the second prong of the Davila test.

CONCLUSION

Because we find that ERISA does not preempt McCulloch’s state-law promissory-estoppel claim, we VACATE the district court’s orders denying McCulloch’s motion to remand and dismissing McCulloch’s complaint. We REMAND this action to the district court with instructions to remand the case to New York state court.

      . In addition to Aetna Inc., the following subsidiaries were named as defendants in this action: Aetna Health Inc., Aetna Health and Life Insurance Company, Aetna Life Insur-anee Company, and Aetna Health Insurance Company of New York. We refer to all of the defendants collectively as "Aetna.”

      . McCulloch alleges that he charges UCR rates in accordance with those established by Ingenix, now known as the Optumln-sight/FAIRPLAN program. Aetna does not dispute that this is an industry-standard schedule.

      . The district court also stated that, “Aetna in fact sent two payments ... for [the] surgery directly to [McCulloch] despite the anti-assignment provision” which "is sufficient for purposes of the complete preemption analysis.” App’x at 241. There are several district court cases in this circuit that have held that where an ERISA plan either permits assignment with the consent of an insurer or the plan is ambiguous as to whether assignment is permitted, direct payment is sufficient to demonstrate a patient’s assignment for preemption purposes. See, e.g., Neuroaxis Neuro-surgical Assocs., PC v. Cigna Healthcare of N.Y., Inc., No. 11 CIV. 8517 (BSJ) (AJP), 2012 WL 4840807, at *3 (S.D.N.Y. Oct. 4, 2012). Even assuming arguendo that these cases reach the correct holding, we find that they are not analogous to the instant case, which involves a benefit plan that clearly prohibits assignments to out-of-network providers.

      . This amicus brief was filed in support of McCulloch in a companion case with identical issues—McCulloch Orthopedic Surgical Services, PLLC v. United Healthcare Insurance Co. of New York, No. 15-2144-cv. Although the parties ultimately withdrew this case, we may take judicial notice of the brief. See In re Enter. Mortg. Acceptance Co., LLC, Securities Litig., 391 F.3d 401, 410 n.8 (2d Cir. 2004) (taking judicial notice of Securities and Exchange Commission amicus brief in another appeal addressing similar issues).

      . The health care plan, for example, covers seventy percent of an out-of-network provider’s surgical procedures after a calendar year deductible.

      . We note that Aetna made two payments to McCulloch and it does not contest that it had a legal duty to make these payments.

      . Although the plan states that the insured is "responsible for obtaining the necessary pre-certification from Aetna prior to receiving services from an out-of-network provider,” it does not require an out-of-network provider to make a pre-approval call. App’x at 89.

      . Aetna relies on Devlin v. Transportation Communications International Union, 173 F.3d 94, 102 (2d Cir. 1999) in support of its contention that "state law promissory estop-pel claims are not immune from ERISA preemption.” Appellees’ Br. at 32-33. This case is inapposite. There, we affirmed the district court's determination that a promissoiy-es-toppel claim could not be pursued by the beneficiaries and participants of a health care plan—not a third-party health care provider— under ERISA § 514. Id. at 97, 101. We did not address whether such an action would be completely preempted under ERISA § 502, and we affirmed the district court’s determination in part because we found that plaintiffs had not presented "extraordinary circumstances” to pursue both an ERISA claim and a claim for promissory estoppel. Id. at 102.


author: VANASKIE, Circuit Judge.

text:
    Thomas WISNIEWSKI, Appellant v. Jon D. FISHER; R. Sue Hannah; Jay B. Whitesel; Lisa Hollibaugh; Charles Mitchell; Mandy Biser; Brian Lightner; Mary Anne Morder; Frank Campopiano; Robin Rutter; Daniel Myers; Joseph Eichenlaub; Jeffrey Oaks; F. Shoop; Doug Loy; M. Sheetz; J. Deline; Kevin Smith; Gregory Barnett; Mark Harlan; Renee Lubert; Titus Moolathara; Beth Mccreary; William Dreibelbis; Julie Cowler; Josh Mahute; Dorina Varner
    No. 14-4194
    United States Court of Appeals, Third Circuit.
    Argued January 17, 2017
    (Filed: May 16, 2017)

      Richard L. Heppner, Jr., Esq. [ARGUED], Reed Smith, 225 Fifth Avenue, Suite 1200, Pittsburgh, PA 15222, Michael P. Yingling, Esq., Reed Smith, 10 South Wacker Drive, 40th Floor, Chicago, IL 60606, Counsel for Appellant
    Debra S. Rand, Esq. [ARGUED], Pennsylvania Department of Corrections, Office of Chief Counsel, 1920 Technology Parkway, Mechanicsburg, PA 17050, Counsel for Appellee
    Before: AMBRO, VANASKIE AND SCIRICA, Circuit Judges'
   OPINION OF THE COURT

VANASKIE, Circuit Judge.

Appellant Thomas Wisniewski, appeals from an order of the United States District Court for the Middle District of Pennsylvania dismissing his amended complaint for failure to state a claim. For the reasons set forth below, we will reverse in part the District Court’s order and will remand for further proceedings.

I.

In 2013, Wisniewski filed a civil rights action pursuant to 42 U.S.C. § 1983, naming as defendants officials and employees of the State Correctional Institution at Smithfield (“SCI-Smithfield”) in Hunting-don, Pennsylvania, where he is confined. In a sprawling amended complaint, Wis-niewski asserted claims of First Amendment retaliation and violations of his Fourth, Eighth, and Fourteenth Amendment rights.

Wisniewski’s amended complaint alleged that he worked as an Inmate Legal Reference Aide in the prison’s law library. Perceiving staffing shortages and believing that other library policy decisions were harming the ability of inmates to access the courts, he registered complaints with prison officials and filed inmate requests about the issues. He asserted that, in turn, he was subject to additional scrutiny when, in his library position, he provided legal assistance to qualified inmates who had been assigned to his caseload by prison officials. An inmate specifically assigned to Wisniewski’s caseload based on his mental health diagnosis sought assistance in preparing a grievance challenging a yard policy. In order to assist the inmate, Wisniewski obtained a draft grievance from another inmate regarding the same topic to use as a template. Prison officials discovered the draft grievance in Wisniewski’s possession and confiscated it based on their suspicions that it was from a notoriously litigious inmate and was similar or identical to multiple other grievances that had been filed. A questionnaire originating from the attorney for the same litigious inmate was also discovered during a subsequent search of Wisniewski’s cell. Based on his possession of these documents, Wisniewski was charged with, and found guilty of, engaging in or encouraging unauthorized group activity, possession or circulation of a petition, possession of contraband, and lying to an employee. Certain defendants supported the misconduct charge by claiming that the documents were “petitions” prohibited under prison policy, despite the fact that neither of the documents had the requisite three or more signatures to be considered a petition under prison guidelines. Accordingly, the misconduct charge was ultimately dismissed, but not until Wisniewski had already spent nearly 90 days in the Restricted Housing Unit (“RHU”) as a result of the charges.

Wisniewski alleged that, in addition to contriving these charges and issuing a guilty verdict for conduct that did not contradict prison guidelines, the defendants engaged in a series of additional "actions in retaliation for helping his assigned inmate prepare a grievance. These retaliatory acts included removing him from his law library position, tampering with his television, denying him yard time, delaying his release from disciplinary confinement, interfering with his access to legal materials, and limiting his access to a photocopier to copy legal materials. Wisniewski filed multiple grievances challenging the allegedly unconstitutional conduct.

The defendants filed a motion to dismiss. The Magistrate Judge recommended granting defendants’ motion, and the District Court, over Wisniewski’s objections, adopted the Magistrate Judge’s report in its entirety and dismissed the amended complaint with prejudice. Specifically, the District Court dismissed all of Wisniew-ski’s claims arising out of events that occurred more than two years prior to the filing of the complaint based on the statute of limitations. The District Court then dismissed the two remaining First Amendment retaliation claims, which related to his limited access to the photocopier and his removal from his Inmate Legal Reference Aide position, for failure to state a claim. The District Court determined that helping a fellow inmate to prepare a grievance was not protected conduct under the First Amendment, and that limiting access to a photocopier did not constitute an adverse action sufficient to support a First Amendment retaliation claim. Wisniewski timely appealed.

II.

This Court has jurisdiction pursuant to 28 U.S.C. § 1291 and exercises plenary review over the District Court’s dismissal of Wisniewski’s amended complaint. See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). To survive dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). This Court will affirm a district court’s dismissal for failure to state a claim “only if, accepting all factual allegations as true and construing the complaint in the light most favorable to the plaintiff, [it] determine[s] that the plaintiff is not entitled to relief under any reasonable reading of the complaint.” McGovern v. City of Phila., 554 F.3d 114, 115 (3d Cir. 2009).

A.

To state a claim for retaliation, a prisoner must allege that: (1) he was engaged in constitutionally protected conduct, (2) “he suffered some ‘adverse action’ at the hands of prison officials,” and (3) “his constitutionally protected conduct was ‘a substantial or motivating factor’ in the decision” to take that action. Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001) (citation omitted). The District Court concluded that Wisniewski failed to allege that he engaged in constitutionally protected activity because, pursuant to Shaw v. Murphy, 532 U.S. 223, 121 S.Ct. 1475, 149 L.Ed.2d 420 (2001), inmates do not possess an independent First Amendment right to provide legal assistance to fellow inmates. We conclude, however, that Wisniewski’s allegations regarding his retaliation claim based on his removal from his Inmate Legal Reference Aide position, are sufficient to survive a motion to dismiss.

“[A]n inmate’s constitutional rights are ‘necessarily limited.’ ” Newman v. Beard, 617 F.3d 775, 781 (3d Cir. 2010) (quoting Waterman v. Farmer, 183 F.3d 208, 213 (3d Cir. 1999)). Nevertheless, “it is settled law that an inmate ‘retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.’ ” Id (quoting Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974)); see also Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) (“[W]hen a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.”). In Shaw, on which the District Court relied, the Supreme Court declined to give prisoner-to-prisoner legal assistance any First Amendment protection “above and beyond the protection normally accorded prisoners’ speech.” 532 U.S. at 231, 121 S.Ct. 1475. Instead, the Supreme Court held that prisons may, if consistent with Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), restrict inmates from assisting other inmates in legal matters. Id at 228-232, 121 S.Ct. 1475.

Wisniewski alleged that as an Inmate Legal Reference Aide, he was responsible for assisting inmates assigned to his caseload prepare legal documents, including grievances. In performing those duties, he obtained a copy of a draft grievance to use in assisting his assigned inmate prepare a grievance challenging the prison’s yard policy. Wisniewski alleged that when prison officials discovered that this material belonged to a notoriously litigious inmate and was used in the filing of multiple other grievances challenging the same policy, they contrived misconduct charges, of which he was ultimately cleared, and engaged in a series of retaliatory actions, including arranging for his removal from his law library position. Wis-niewski’s amended complaint plausibly alleged that his conduct in assisting his assigned inmate prepare a grievance, which was both pursuant to his job duties and in accordance with prison regulations, was hot inconsistent with legitimate penological interests, and therefore could fall within the limited First Amendment rights that prisoners retain. See, e.g., Newman, 617 F.3d at 781. Cf. Johnson v. Avery, 393 U.S. 483, 486-90, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969) (protecting the right of access to courts by prohibiting state prison officials from actively interfering with inmates’ attempts to prepare legal documents).

With respect to the second element, the termination of prison employment constitutes adverse action sufficient to deter the exercise of First Amendment rights, satisfying the second element of a retaliation claim at this stage of the litigation. See, e.g., Williams v. Meese, 926 F.2d 994, 998 (10th Cir. 1991) (“[A prisoner] has no right to a job ... [but] prison officials cannot punish [him for] exercising his first amendment rights by denying him certain job assignments or transferring him from one job to another”). His amended complaint also adequately alleged a causal link between his provision of legal assistance and his job removal.

Accordingly, accepting as true the factual allegations in the complaint and all reasonable inferences that can be drawn therefrom, we conclude that Wisniewski’s allegations regarding his job removal state a plausible claim for relief sufficient to survive Rule 12(b)(6) dismissal.

B.

We also conclude that the District Court erred in dismissing, at this stage, Wisniewski’s remaining claims based on the statute of limitations. The running of the statute of limitations is an affirmative defense. See Fed. R. Civ. P. 8(c)(1); Bradford-White Corp. v. Ernst & Whinney, 872 F.2d 1153, 1161 (3d Cir. 1989). A complaint is subject to dismissal for failure to state a claim on statute of limitations grounds only when the statute of limitations defense is apparent on the face of the complaint. Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014). Wisniewski filed his complaint on October 25, 2013. The statute of limitations applicable to § 1983 claims in Pennsylvania is two years. See Knoll v. Springfield Twp. Sch. Dist., 763 F.2d 584, 585 (3d Cir. 1985). “A [§ ] 1983 cause of action accrues when the plaintiff knew or should have known of the injury upon which [his] action is based.” Sameric Corp. of Del. v. City of Phila., 142 F.3d 582, 599 (3d Cir. 1998). Although Wisniewski argues that his claims are timely presented because he suffered a continuing wrong, we agree that the District Court properly concluded that the continuing violations doctrine does not apply to Wisniewski’s claims, as defendants’ actions “had a degree of permanence which should trigger [his] awareness of and duty to assert his[ ] rights.” See Cowell v. Palmer Twp., 263 F.3d 286, 292 (3d Cir. 2001). Accordingly, absent tolling of the statute of limitations, Wisniewski’s claims accruing before October 2011 were time-barred.

This Court has held, however, that because exhaustion of prison administrative remedies is mandatory under the Prison Litigation Reform Act (“PLRA”), the statute of limitations applicable to § 1983 actions should be tolled while a prisoner pursues the mandated remedies. Pearson v. Sec’y Dep’t of Corr., 775 F.3d 598, 603 (3d Cir. 2015). Although Wisniewski’s amended complaint revealed that certain instances of allegedly unconstitutional conduct occurred more than two years prior to the filing of the complaint, such as the confiscation of his leg brace for two days while he was housed in the RHU, the allegations did not rule out the possibility that the statute of limitations should have been tolled while Wisniewski exhausted his administrative remedies. For example, Wisniewski alleged multiple instances of retaliatory conduct from approximately April 2011 through November 2011, during which time he was also filing numerous related grievances. We cannot say, therefore, that it was apparent on the face of the amended complaint that all claims accruing prior to October 2013 were necessarily barred by the statute of limitations. We conclude that the District Court erred in dismissing these claims as barred by the statute of limitations without considering whether Wisniewski properly exhausted administrative remedies and whether and to what extent the limitations period should be tolled. We express no view as to whether Wisniewski’s underlying claims will prevail or whether defenses, such as the statute of limitations, will prove to be dispositive.

III.

For the foregoing reasons, we will reverse the District Court’s order to the extent it dismissed the First Amendment retaliation claim based on Wisniewski’s job removal and to the extent it dismissed the remaining claims on statute of limitations grounds. We remand for further proceedings consistent with this opinion.

      . We appointed counsel to represent Wis-niewski on appeal. Appointed counsel performed admirably and was of immense assistance to the Court. We express our sincere appreciation to counsel for the excellent representation of Wisniewski on appeal.

      . Nonetheless, prison officials may still demonstrate that their actions were reasonably related to legitimate penological interests. See, e.g., Carter v. McGrady, 292 F.3d 152, 159 (3d Cir. 2002) (concluding that there was no genuine issue of material fact that prison officials’ actions were " ‘reasonably related to legitimate penological interests,’ and that [plaintiff] would have been disciplined notwithstanding his jailhouse lawyering.” (quoting Turner, 482 U.S. at 90, 107 S.Ct. 2254)). However, we cannot say, at this stage, that Wisniewski’s allegations were insufficient to survive a Rule 12(b)(6) dismissal.

      . At oral argument, counsel for Wisniewski withdrew the retaliation claim based upon limits imposed on his access to a photocopier.

      . Wisniewski also argues on appeal that his job removal was additionally in retaliation for complaints he made about staffing shortages in the library. The District Court did not directly address this claim before dismissing the complaint, but we believe that Wisniewksi's allegations raise his right to relief above the speculative level. Wisniewski’s complaints to prison officials and inmate requests implicate conduct protected by the First Amendment. See Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003). Moreover, his amended complaint suggests a pattern of retaliation beginning with his complaints to prison staff about the prison’s implementation of library policies and culminating with the loss of his position as an Inmate Legal Reference Aide. Accordingly, construing Wisniewski’s amended complaint liberally, we believe that he adequately alleged a causal connection between those complaints and his job removal. Cf. Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007) (noting ways to establish causal link, including through "a pattern of antagonism coupled with timing”); Marra v. Phila. Hous. Auth., 497 F.3d 286, 303-05 (3d Cir. 2007) (concluding that evidence of a pattern of antagonist behavior was sufficient to support a causal link).

      . Our decision also does not preclude the District Court from considering other bases for dismissal of the claims on remand.