ERISA & Employee Benefits Litigation Blog

Court Smacks Down Plaintiff’s “[But Mom…] Everyone Else Is Doing It” Public Policy Argument To Void Illegal Exclusions Provisions

Posted in Plan Administration Litigation

By: Alexius O’Malley and Sam Schwartz-Fenwick

Seyfarth Synopsis: A Court ruled that under the Affordable Care Act, an ERISA governed plan exclusion cannot unequivocally bar emergency medical care related to injuries sustained in a fireworks explosion.

Recently, a federal court in Minnesota addressed whether a participant in a self-funded ERISA-governed welfare plan, could recover $225,000 in medical care and expenses incurred for injuries participant sustained in an explosion while igniting mortar-style fireworks on Independence Day 2015.  In Henrikson v. Choice Products USA, LLC, 16-CV-1317 (MJD/LIB), 2016 WL 6143357 (D. Minn. Oct. 20, 2016), the plan had denied the benefit claim due to its illegal activities exclusion for medical care. In challenging the benefit denial, Plaintiff raised a mix of claims under ERISA, common-law and the Affordable Care Act (ACA).

The Court found that the illegal activities exclusion was unambiguous. It further found the exclusion was not void as a matter of public policy. In so finding the Court rejected Plaintiff’s novel theory that because “everyone” lights fireworks on Independence Day, applying the illegal activities exclusion would be improper

The Court found it could not determine on a motion to dismiss whether the illegal activities exclusion extended to firework use. It noted the plan was ambiguous as to which law governed the illegality of an activity. Plaintiff argued that the plan was ambiguous in that the applicable law could be Minnesota (Plaintiff’s residence, where igniting fireworks is illegal), Wisconsin (the employer’s home state, where the plan was given effect, where igniting fireworks is legal), or Federal (due to ERISA preemption, where no federal law exists that would render ignition of fireworks illegal). The appropriate governing law for criminal activity would typically be the state in which the act occurred, nonetheless, the Court declined to rule on that issue at the motion to dismiss stage and found Plaintiff’s ambiguity argument plausible.

The Court further found that because the plan at issue was a “group health plan” under the ACA and that Plaintiff sufficiently pled that the plan covers some services in an emergency department of the hospital, it was “facially plausible” that the ACA would require the plan to provide “emergency services” and could not deny such coverage. The ACA does not mandate that a “group health plan” cover emergency services, but it does mandate that if a plan does cover “emergency services” those services must be reimbursed at the same level in-network and out-of-network. A ruling that the ACA requires coverage for emergency services would be a very broad expansion of the law.

This decision highlights the importance of ensuring that plan language is clearly drafted so as to avoid preventable ambiguity. The decision further underscores plaintiffs’ utilization of the ACA to increase the theories and remedies available in ERISA benefits cases.

Evidence From LinkedIn, IMDB Used to Support Denial of Benefits

Posted in Plan Administration Litigation

By: Amanda Sonneborn and Thomas Horan

Be careful what you ask for. The Plaintiff in a recent case from the Central District of California learned that lesson when the Plan’s re-evaluation of her claim for benefits revealed that she was apparently working as a stunt coordinator and stunt actress, despite having received disability pension payments for nearly ten years. In Hoffman v. Screen Actors Guild-Producers Pension Plan, the Plaintiff sought to convert her disability pension to an “occupational disability pension” to receive the additional benefit of health coverage. The Plan denied her request, finding a lack of evidence that her disability (severe depression) had resulted from her employment as a stunt actress. The Benefits Committee denied her appeal of that decision, and Plaintiff brought suit to challenge that determination. No. 2:16-cv-01530, 2016 WL 6537531 (C.D. Cal. Nov. 2, 2016).

The district court granted the Plan’s original motion for summary judgment on May 3, 2012. The Ninth Circuit reversed that decision, finding that the Plan had failed to provide Plaintiff a full and fair review, and directed that the case be remanded to the Plan to obtain a second medical opinion. The Plan submitted Plaintiff’s file for consideration by two panels, including six different specialists. Five specialists reached the conclusion that Plaintiff had never been “totally disabled” under the Plan. The sixth found that she could work in jobs that met certain criteria.

The review also revealed that Plaintiff had continued working as a stunt coordinator since 2004, despite receiving disability pension benefits because she was “unable to work.” Plaintiff’s personal website, LinkedIn profile, and IMDb page listed stunt and acting credits from 2004 through 2010. Plaintiff removed these posts after Defendants brought them to the court’s attention in supplemental pleading.

In March 2016, the Benefits Committee both denied Plaintiff’s appeal as to her “occupational disability pension” and terminated her disability pension. Plaintiff again sued to challenge that determination. The parties agreed that the Plan gave discretion to the administrator, and the court applied an abuse of discretion standard. The court found that the decision to deny Plaintiff benefits was neither arbitrary nor capricious.

The court found that the Benefits Committee had given Plaintiff a clear, reasoned explanation of its decision, and that it was rationally based on two reports, from six different medical specialists, as well as on Plaintiff’s various internet profiles. As the Committee did not abuse its discretion, the court found that Plaintiff lacked standing to challenge the Plan’s failure to comply with disclosure requirements, as she lacked a colorable claim on her suit for benefits.

This case demonstrates the value of thoroughly investigating a claim for benefits, and documenting the investigation. What plaintiffs say in court filings or claims for benefits is not always consistent with what they say in other arenas. This decision shows that courts are willing to consider evidence that plaintiffs’ social media or internet presence can disprove their claims to be totally disabled or otherwise unable to work.

A Question of Timing – Social Security Disability Determinations and the Administrative Record

Posted in Plan Administration Litigation

By: Amanda Sonneborn and Jules Levenson

Seyfarth Synopsis: Court excludes evidence of Social Security disability award issued after the final decision issued on plaintiff’s claim for plan disability benefits.  The decision accentuates the importance of fighting to limit the evidence before a Court on review of a plan administrator’s decision.

Just like football is a game of inches, a recent case from the Northern District of Ohio reminds us that the outcome of a denial-of-benefits appeal can sometimes turn on quirks of timing.  In Folds v. Liberty Life Assurance Co., the Plaintiff had successfully sought benefits for his Crohn’s disease under his own-occupation disability plan and had been receiving benefits for 10 months when Defendant questioned his continuing eligibility and ultimately determined that he was no longer eligible for benefits. No. 15-CV-00354, 2016 WL 5661615 (N.D. Ohio September 30, 2016).

Plaintiff unsuccessfully then appealed twice, with his second appeal being decided only four days before the Social Security Administration awarded him benefits. Id. at *6.  He then sued claiming that the denial of benefits was arbitrary and capricious, based in part on the failure to consider the SSA decision, as well as a host of other reasons, including failure to conduct an independent medical exam, reliance on Defendant’s own physicians’ file review, failure to consider a letter from Plaintiff’s primary care physician and failure to consider a vocational report.

In a significant victory for Defendant, the Court struck the SSA decision because it had been issued after the conclusion of the appeal process and was therefore not part of the administrative record. In light of this ruling, the Court refused to consider the SSA decision, which had been submitted by Plaintiff to “show how a neutral body would analyze the very same set of facts,” holding that that the decision was not properly before the Court. Id. 

This case serves as a victory for plan administrators who often engage in heated battles with plaintiffs who seek to ever expand the scope of administrative records.  The decision here can be used by administrators as strong support for the proposition that courts should only consider the evidence before the administrators at the time of decision when reviewing those administrator’s decisions.

Watching SCOTUS – ERISA Church-Plan Exemption Revisited

Posted in Uncategorized

By: Danielle Vera and Sam Schwartz-Fenwick

Seyfarth Synopsis: Currently before the  Supreme Court are two petitions regarding the thorny legal question of which organizations can qualify for ERISA’s Church-plan exemption. If the Supreme Court grants certiorari and follows the recent Third and Seventh Circuit Court decisions, then all Church-affiliated organizations (e.g. church affiliated hospitals, daycares, and adoption agencies) will have to bring their existing plans into compliance with ERISA, likely at a substantial cost both to their bottom line and to their religious mandate.    

In the fall term, the Supreme Court may address an ERISA question with broad ranging impact on the First Amendment. Specifically, currently before the Court are petitions in two cases (Saint Peter’s Healthcare System v. Kaplan and Advocate Health Care Network v. Stapleton) where the appellate court found that benefit plans established by religious hospitals (Church-affiliated organizations) are not eligible for ERISA’s Church-plan exemption and therefore are subject to ERISA..

Both the Third and Seventh Circuits found that the defendant healthcare organizations did not qualify for the ERISA Church-plan exemption, as they were Church affiliated organizations not Churches. They reasoned the Church-plan exemption was very limited and only applied to plans established by a church, or by a convention or association of churches. The courts found that the exemption does not apply to plans established and maintained by a Church-affiliated organization. In reaching this holding, the courts rejected the arguments that both the legislative history and text of ERISA support a broad Church-plan exemption that extends to Church affiliated organizations.

While a Circuit split has not yet emerged on this issue, there is still a significant chance that the Supreme Court will grant certiorari, given that these cases touch on the limits of the Federal government to regulate religion.

As a practical matter, if the Supreme Court affirms the rulings of the Circuit Court it will be difficult financially for many of these plans to comply with ERISA. Subjecting formerly exempt plans to the strictures of ERISA places high monetary demands on Church-affiliated organizations that maintain pension plans. For instance, the plan will be subjected to ERISA disclosure requirements and compliance with the funding requirements of the Pension Protection Act of 2006. In addition, an affirmance of the Circuit Courts’ holdings will cause many plans to make amendments that contradict the religious tenets of the Church with which they affiliate. For instance, retirement and welfare plans, suddenly subject to ERISA, will likely be very limited in their ability to limit health and survivor benefits to opposite-sex spouses (a core tenet of many religious entities that maintain Church plans). Even if the Supreme Court were to affirm the Circuit Courts’ holdings, it is certain that the plans, relying on the decision in Hobby Lobby, would argue that their religious right to provide benefits in accord with their religious tenets should control. How the Supreme Court will ultimately decide that issue has broad implications for employers and plan sponsors as it will help clarify the line between an employer’s freedom of religion, and an employee’s entitlement to certain benefits under anti-discrimination laws.

DOL Fiduciary Rule-Making Overreach? Stay Tuned for the Judgment of the Courts

Posted in Uncategorized

By:  Jim Goodfellow and Mark Casciari

Seyfarth Synopsis: The U.S. Department of Labor has recently issued its new regulation expanding the definition of fiduciary under ERISA, but there are a number of lawsuits challenging the authority of the DOL to issue the regulation — stay tuned to see how the DOL fares in the courts.  

In April, the Department of Labor issued new regulations under ERISA related to individuals who offer investment advice to ERISA plans, their fiduciaries, or participants for a fee.

The DOL now says that a fiduciary is someone who provides recommendations or advice for a fee to a plan, a plan fiduciary, a plan participant, or an IRA owner for a fee regarding: (1) the advisability of acquiring, holding, disposing, or exchanging plan or IRA assets; (2) the investment of assets after those assets are rolled over, transferred, or distributed from a plan or IRA; and (3) the management of those assets. The new regulation became effective on June 7, 2016.

Investment advisers and other groups are not taking this new rule lying down, and the DOL now faces a number of separate lawsuits, which allege that the DOL overstepped its rule making authority when it issued its new regulation.  Five of those lawsuits have been consolidated into one action in the United States District Court for the Northern District of Texas, and a hearing in that consolidated action has been set for November 17, 2016. Another lawsuit has been filed in the United States District Court for the District of Kansas.

In yet another suit, National Association for Fixed Annuities v. Perez, 16-cv-01035 (D.D.C.), the parties are briefing a motion for a preliminary injunction filed by the plaintiff association. The plaintiff association has argued, among other things, that implementing the new rule will have irreparable harm on the fixed annuity industry because the new fiduciary definition will cause jobs to hemorrhage. In addition, the plaintiff argues that the DOL has expanded fiduciary liability far beyond Congress’ intent when it passed ERISA–according to the plaintiff, ERISA fiduciary status is meant to cover only those who provide ongoing management of the plan or its assets.

The DOL has responded with a cross motion for summary judgment and a memorandum in opposition, arguing that its regulation comports with ERISA, and that the plaintiff is playing Chicken Little as to the harm to its membership.

Stay tuned. This surely will wind up before one or more Courts of Appeal and perhaps the Supreme Court.

An Expanding Universe of Healthcare Provider Liability: The United States Supreme Court Endorses “Implied False Certification” under the False Claims Act

Posted in Uncategorized

An Expanding Universe of Healthcare Provider Liability:  The United States Supreme Court Endorses “Implied False Certification” under the False Claims Act

By Jonathan Braunstein and Nabeel Ahmad

http://www.seyfarth.com/JonathanBraunstein

http://www.seyfarth.com/NabeelAhmad

 

Seyfarth Synopsis:

In Universal Health Services Inc. v. U.S. et al. ex rel. Escobar et al., the United States Supreme Court found a healthcare provider liable under the False Claims Act (“FCA”) for material omissions on its claim for payment because the claim made specific representations, and the provider’s failure to disclose its noncompliance with regulatory requirements made those representations misleading.

The Holding

On June 16, 2016, the Supreme Court considered and endorsed the “implied false certification” theory of liability under the False Claims Act. Specifically, the Supreme Court held a defendant may be liable for a material omission on a claim for payment if the claim makes specific representations, and the defendant’s failure to disclose its noncompliance with a statutory, regulatory, or contractual requirement renders those representations misleading. Going even further, the Supreme Court held that a defendant may be liable even if the requirement that the defendant did not comply with was not an express condition of payment.

The Underlying Facts

A beneficiary of a state Medicaid program received counseling services at a mental health facility owned and operated by Universal Health. The beneficiary died after suffering an adverse reaction to medication prescribed by the facility. After the beneficiary’s death, her guardians learned that the vast majority of the facility’s employees were not licensed or authorized to prescribe medication or offer counseling without supervision. The guardians filed a qui tam action against Universal Health alleging that it had violated the FCA under the “implied false certification theory” of liability.

The Supreme Court’s Analysis

In a unanimous decision written by Justice Thomas, the Supreme Court agreed with plaintiffs. First, the Supreme Court considered whether submitting a claim without disclosing violations of statutory, regulatory, or contractual requirements constituted an actionable misrepresentation under the FCA. Finding that it did, the Court wrote that by submitting claims for payment using payment codes corresponding to specific services, Universal Health represented that specific types of treatment were provided. The facility’s staff members made further representations by using National Provider Identification numbers corresponding to specific job titles. By conveying this information without disclosing the facility’s many violations, Universal Health’s claims constituted actionable misrepresentations.

Second, the Supreme Court considered Universal Health’s argument that FCA liability should be limited to undisclosed violations of express conditions of payment. The Court disagreed, and held that this argument was not supported by the text of the statute or the statute’s scienter requirement. According to the Court, a defendant can have actual knowledge that a condition is material even if not expressly designated as a condition of payment.

Third, the Supreme Court clarified the FCA’s materiality requirement and held that the Government’s decision to specify a provision as a condition of payment is relevant, but not dispositive. The Supreme Court noted that it is not sufficient for a finding of materiality that the Government would have declined to pay a claim if it knew of the defendant’s noncompliance.  Materiality also cannot be found if the defendant’s noncompliance with statutory, contractual, or regulatory requirements is minor or insubstantial. Moreover, payment of a claim despite actual knowledge that certain requirements were violated is strong evidence that those requirements are not material. The Supreme Court vacated the First Circuit Court of Appeal’s ruling because its materiality standard was too broad.

Takeaway for ERISA plans: The Supreme Court’s Endorsement of Implied False Certification Liability Will Help ERISA Plans Defend Provider Collection Actions, Prosecute Overpayment Recovery Actions, and Deter Future Fraud

Although this case involved claims for payment under the FCA, the ruling is of great relevance and aid to ERISA plans. Claim submissions by providers to ERISA benefit plans often contain actionable material omissions and concealments akin to “implied false certifications” under the FCA.

If providers concealed material information on their claim submissions to ERISA benefit plans, they should not be able to recover allegedly owed but unpaid claims. The “implied certification” theory under the FCA can be cited by ERISA plans in support of affirmative defenses (such as unclean hands) to collection actions brought by providers.

Similarly, ERISA plans should be able to claw back overpayments induced by the providers’ material omissions and concealments. Fraudulent omissions, concealments and “implied false certifications” support claims by ERISA Plans under state law (see e.g., Cal. Civil Code 1710, sub. 3) to recover overpayments and offset future amounts owed.

Health care fraud, waste and abuse have a significant impact on our economy. Public agencies and private companies are focused on controlling costs and are increasing anti-fraud efforts.  Hopefully, the Supreme Court’s decision will serve as a fraud deterrent going forward. We fully expect to see many more civil and criminal healthcare fraud and provider billing disputes involving “implied false certification” in the near future.

Don’t Be a Menace to South Central (Houston Action Council) When Your ERISA Claim Is No Good

Posted in Uncategorized

By Sam Schwartz-Fenwick and William David

Seyfarth Synopsis: A recent decision district court ruling affirms that in a benefit discrimination claim, just as in a typical claim of employment discrimination, to survive summary judgment a plaintiff must demonstrate that a defendant’s given lawful reason for taking an adverse action was pretext.

Temporal proximity between an adverse action and an enrollment in an ERISA plan (without more), is insufficient to overcome an employer’s legitimate, nondiscriminatory reason for the termination. Such was the decision of the district court for the Southern District of Texas in Francis v. South Central Houston Action Council Inc.

Plaintiff, was hired by Defendant in February 2012.  A year later she enrolled in Defendant’s medical plan. A month later she was terminated for being insubordinate, and for violating company policy regarding absenteeism and tardiness.

Plaintiff sued for wrongful discharge in violation of the Employee Retirement Income Security Act (“ERISA”), employment discrimination based on national origin in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), and age discrimination in violation of the Age Discrimination in Employment Act (“ADEA”). Her employer moved for summary judgment for all three claims, and the court granted the motion in its entirety.  Because this blog is focused on ERISA, we limit our discussion to the court’s analysis of the ERISA claim.

In the Complaint, Plaintiff asserted that the proximity in time between her benefits enrollment and her termination established she was terminated in violation of ERISA for enrolling in the plan.

The Court rejected this argument. It held that Defendant offered a legitimate, nondiscriminatory reason for Plaintiff’s termination, and thus it was Plaintiff’s burden to demonstrate pretext. The Court found Plaintiff failed to make this showing as she simply argued that the temporal proximity between her enrollment in the plan and her termination raised a question of fact sufficient to survive summary judgment.

What is the takeaway here for employers? The decision reinforces that in a benefit discrimination claim, just as in a typical claim of employment discrimination, a plaintiff must meet its burden of proof and not rely on happenstance if it hopes to survive a motion for summary judgment.

Spokeo and the Future of ERISA Litigation

Posted in Uncategorized

By Mark Casciari

Seyfarth Synopsis: The Supreme Court’s Spokeo decision is sure to impact ERISA litigation.  Expect ERISA plaintiffs to focus more on alleging a “concrete” injury, and ERISA defendants to argue more often that the claim cannot proceed in federal court because its alleged injury, while it may allege a breach of ERISA, does not rise above a purely technical violation.

Business man in suit with cityscape montage. The man is unrecognizable and you cannot see his face. He is superimposed onto a city skyline at sunset. He is holding a world map globe like a crystal ball. Success, vison concept with copy space.

We have blogged previously about the Spokeo Inc. v. Robbins case just decided by the Supreme Court, and our sister blog has recently commented on that decision. The following comments do not repeat what already has been said, and are intended to limit the discussion at this time to the ERISA litigation context.

The facts in Spokeo concern the federal Fair Credit Reporting Act, but the holding implicates litigation under a number of other federal statutes, including ERISA.  The Supreme Court said that, while Congress can create federal claims, those claims can be litigated in federal court only if the plaintiff alleges a “concrete” injury (i) that affects the plaintiff in a personal and individual way, (ii) that is traceable to the defendant, and (iii) that is repressible by the federal judge.  Add to these preconditions the Supreme Court’s Twombly holding, which said that any federal complaint, as a matter of federal civil procedure, must state a “plausible” claim, beyond speculation and conclusion, in order to be considered by a federal judge.

The Supreme Court found the allegations in Spokeo possibly less than concrete, and remanded the case back to the Court of Appeals for the Ninth Circuit with instructions to address that issue in detail.  Here is the Court’s explanation of what a claim needs to allege to be “concrete” enough to be heard by a federal judge:

  • The alleged injury must “actually exist”; it must be “real.”
  • The alleged injury can be tangible or intangible. As to intangible harm, the courts will give some deference to what Congress thinks on the subject.  But Congress cannot create an intangible harm merely by creating a claim to remedy a statutory violation.
  • The alleged injury can be a “risk” of real harm that is difficult to measure. For example, the Court said, a failure to obtain information that Congress decided must be make public can (but not necessarily will) be a concrete injury.  Still, it seems, any risk of real harm must rise to a level above speculation.

Some ERISA litigation claims obviously involve concrete injuries.  These include claims for denial of benefits that plan terms allow, plan investment losses resulting from a fiduciary breach and detrimental reliance on fiduciary misrepresentations.  Other ERISA litigation claims less obviously involve concrete injuries.  These include claims challenging a denial to provide plan documents in a timely fashion, claims challenging notice of plan amendments that arguably violate ERISA section 204(h), claims challenging a fiduciary breach attendant to an investment of plan assets in an overfunded defined pension plan, and claims challenging a failure to fund a defined benefit plan where the plaintiff has suffered no benefit denial.

Where lines are drawn undoubtedly will be a subject of much discussion.  How lines are drawn may determine the outcome of high-stakes litigation.  For example, line-drawing will affect class certification decisions, as the more individualized the alleged concrete injury, the less likely the court will certify a class.

ERISA litigators should expect plaintiff s to spend more time drafting complaints, so they plausibly allege concrete injuries.  They should expect defendants to spend more time arguing that, notwithstanding all the extra work, the plaintiffs still cannot enter a federal court because all that the plaintiff is merely alleging a technical violation or “gotcha” claim.

Suing Not Too Wisely

Posted in Uncategorized

By: Jules Levenson and Sam Schwartz-Fenwick

Seyfarth Synopsis: A district court in Minnesota recently found an employee could not challenge a plan’s blanket transgender exclusion under Title VII, when the employee was not transgender but her son was. The Court went on to find that a third party administrator could not be sued for the blanket plan exclusion under the Affordable Care Act, when the complaint did not name the correct TPA and when all the TPA was alleged to have done was to follow the plan’s terms.

Existing federal laws have limits when it comes to who can be sued to redress claims of transgender benefits discrimination, so held the District of Minnesota recently in Tovar v. Essentia Health, LLC, et al, No. 16-cv-100 (May 11, 2016). In Tovar, plaintiff’s health-coverage was provided under a benefit plan that expressly excluded covering any “services and/or surgery for gender reassignment.” Plaintiff’s son was a plan beneficiary, who was denied coverage when he sought gender affirmation surgery (and related medical treatments).

Plaintiff brought suit against her employer and the alleged third-party administrator of the plan. She alleged the employer violated Title VII (and Minnesota anti-discrimination laws) by “excluding coverage for gender reassignment services or surgery” in its benefit plan. She further asserted that the third-party administrator violated Section 1557 of the Affordable Care Act, because as an entity that accepted federal funds, it was obligated to disregard the plan’s exclusionary language and instead award benefits related to transgender related services.

Both defendants moved to dismiss. The Court granted both motions. The Court dismissed the employment discrimination claims, holding that Title VII could only redress a claim against an employee. The Court reasoned that Plaintiff suffered no injury as her benefits were not denied. Only her son was denied care. The Court held that a claim of Title VII discrimination did not extend to alleged discrimination against a child-beneficiary. By holding that an injury against a child-beneficiary was not a cognizable injury under Title VII, the Court set more stringent boundaries of the law than the one advocated by the current administration.

The Court dismissed the Section 1557 claim for lack of standing because the evidence in the record demonstrated that the alleged TPA was not in fact the TPA, so any injury was neither traceable to it, nor redressable by it. The Court also noted that even if the alleged TPA actually administered the plan, the TPA was authorized only to interpret the plan, and could not violate the Act by simply following the terms of the plan. The Court stressed that the TPA had a fiduciary obligation to follow the terms of the plan. The Court went on to note that the plan sponsor is the appropriate target in a claim against a blanket transgender benefit exclusion as it is the entity that drafted the challenged plan language. It is unclear from the facts whether the plan sponsor had sufficient contact with the federal government to allow it to be sued under Section 1557.

The Court’s reasoning regarding Section 1557 is in line with the subsequently issued final rules of the Department of Health and Human Services regarding Section 1557. In these rules, HHS ruled that a covered third-party administrator will violate Section 1557 if it administers a plan in a discriminatory way, not if it simply follows the language of the plan.  Note that this is different from the standard under ERISA, under which a fiduciary is only required to follow the terms of the plan to the extent they don’t violate applicable law.

Whether the Tovar Court would have found the blanket exclusion violated Title VII if the claim was brought by an employee plan-participant (instead of a beneficiary), is a question left for another day. What is certain is that the EEOC has taken the position that such conduct would clearly state a cognizable injury under Title VII, and HHS regulations clarify that entities that receive Federal financial assistance (including Medicare) violate the ACA if they retain blanket plan exclusions of transgender related care. Perhaps for this very reason, the employer in Tovar amended the at-issue plan to prospectively remove the blanket exclusion.

Judge Garland’s ERISA Jurisprudence Reflects His Methodical and Moderate Reputation

Posted in Uncategorized

By Ada W. Dolph and Justin T. Curley

With President Obama’s recent nomination of Judge Merrick B. Garland of the U.S. Court of Appeals for the D.C. Circuit to the U.S. Supreme Court, we thought our loyal readers would be interested to learn a little about Judge Garland’s ERISA jurisprudence while on the D.C. Circuit. While Judge Garland’s oeuvre in this area of the law is limited despite his 19 years on the appellate bench, it does nonetheless reflect his methodical and restrained reputation, and his penchant for consensus-building, as the decisions that he has been a part of were all unanimous while still peppered with both Democratic- and Republican-appointed judges.

Judge Garland has authored two decisions that have substantively discussed ERISA and its regulations. In Boivin v. U.S. Airways, Inc., 446 F.3d 148 (D.C. Cir. 2006), retired pilots brought suit against the Pension Benefit Guaranty Corporation (“PBGC”), seeking to compel the PBGC to correct alleged errors in its calculation of estimated retirement benefits due the pilots under ERISA and the pilots’ pension plan. In a thorough and carefully crafted opinion, Judge Garland wrote for the panel that the pilots’ claims must be dismissed without prejudice, because the pilots had not yet exhausted their administrative remedies provided by the PBGC, and that they were required to do so before seeking judicial review. In so holding, the panel observed that while ERISA does not expressly require exhaustion of administrative remedies or condition judicial review upon “final” agency action, sound judicial discretion, the case law and the circumstances of the case favored requiring exhaustion.

In Francis v. Rodman Local Union 201 Pension Fund, 367 F.3d 937 (D.C. Cir. 2004), Judge Garland wrote the opinion which affirmed summary judgment for the defendant, reasoning that the plaintiff was not entitled to recover pension benefits alleged owed to him under the terms of an ERISA plan based on the additional hours that he arguably would have worked but for alleged racial discrimination charged and settled in prior litigation. Judge Garland analyzed the terms of the pension plan and the settlement agreement and laid out how the facts of the case demonstrated that the parties never intended the prior settlement payment to plaintiff to generate additional pension benefits, and noted that the plaintiff still retained the right to receive pension benefits under the plan for the hours that he actually worked.

While Judge Garland has not authored an opinion in a denial of benefits case, the decisions in which he participated as a member of the panel do not lean one way or the other, and instead reflect the reasoned, middle of the road approach for which he is known. In Fitts v. Unum Life Ins. Co. of Am., 520 F.3d 499 (D.C. Cir. 2008), the plaintiff challenged her disability plan’s determination that her bipolar disorder was a mental illness, as opposed to a physical illness, and therefore limited her disability benefits to two years. The district court had concluded that the meaning of mental illness was ambiguous, and resolved the ambiguity in favor of the plaintiff. On appeal, Judge Garland and the two other judges reversed, noting the conflicting evidence regarding the causes of bipolar disorder in general and of plaintiff’s bipolar illness in particular. Given the genuine dispute about the possible causes of bipolar disorder, and in light of the defendant’s evidence casting doubt on the cause of plaintiff’s illness, the panel ruled that the district court should not have granted summary judgment for the plaintiff.

In White v. Aetna Life Ins. Co., 210 F.3d 412 (D.C. Cir. 2000), the plaintiff had filed her appeal of a denial of benefits three months late, and the defendant refused to consider the untimely appeal. The district court granted summary judgment for the defendant. On appeal, Judge Garland and the panel reversed, holding that the denial notice did not substantially comply with the notice requirements of ERISA and its implementing regulations, and that therefore the plaintiff’s 60-day appeal deadline never began to run. Specifically, the denial notice failed to include a fourth reason for the benefits denial, which the panel concluded was a “major omission,” as it precluded the plaintiff from perfecting her benefit claim for appeal.

Judge Garland’s only decision touching on ERISA preemption is O’Connor v. UNUM Life Ins. Co. of Am., 146 F.3d 959 (D.C. Cir. 1998), a case in which the panel reversed the district court’s grant of summary judgment in favor of the defendant. The plaintiff had argued that the district court erred because the defendant failed to submit any evidence that it was prejudiced by the plaintiff’s failure to file timely proof of her claim. The plaintiff relied upon California’s so-called “notice-prejudice” rule, which provides that a defense based on an insured’s failure to give timely notice of a claim to the insurer requires the insurer to prove that it suffered substantial, actual prejudice due to the delayed notice. While the parties agreed that the notice-prejudice rule “relates to” an employee benefit plan and therefore falls within ERISA’s general preemption provision, they disputed whether ERISA’s savings clause for “any law of any State which regulates insurance, banking, or securities” applied. The panel concluded that the savings clause did apply because the notice-prejudice rule regulates insurance, and that accordingly ERISA does not preempt California’s notice-prejudice rule.

In sum, Judge Garland’s ERISA jurisprudence, albeit limited, reflects his reputation as a judicial centrist who is not reflexively pro-plaintiff or pro-defendant. The ERISA decisions in which he has participated, either as an author or panel member, are thoughtfully considered and well-reasoned, reveal consensus and bend toward the middle.