Doe v. Harvard Pilgrim Health Care, Inc. , 904 F.3d 1 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 17-2078
JANE DOE,
Plaintiff, Appellant,
v.
HARVARD PILGRIM HEALTH CARE, INC.; HARVARD PILGRIM PPO PLAN
MASSACHUSETTS, GROUP POLICY NUMBER 0588660000,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Denise J. Casper, U.S. District Judge]
Before
Thompson, Selya, and Kayatta,
Circuit Judges.
Mala M. Rafik, with whom Sarah E. Burns and Rosenfeld & Rafik,
P.C. were on brief, for appellant.
Peter S. Sessions, Lisa S. Kantor, and Kantor & Kantor LLP,
on brief for National Alliance on Mental Illness, amicus curiae.
Jonathan M. Feigenbaum on brief for United Policyholders and
Health Law Advocates, Inc., amici curiae.
Christine Zaleski, with whom Steven L. Schreckinger and
Anderson & Kreiger LLP were on brief, for appellees.
September 6, 2018
KAYATTA, Circuit Judge. Jane Doe's insurer, Harvard
Pilgrim Health Care ("HPHC"), deemed part of the time Doe spent at
a mental health residential treatment facility not medically
necessary under the health care benefits plan established by the
employer of Doe's parent. HPHC therefore denied coverage for that
portion of the treatment. After several unsuccessful
administrative appeals, Doe sued HPHC in federal court under the
Employee Retirement Income Security Act ("ERISA"). 29 U.S.C.
§§ 1001–1461. On de novo review, the district court agreed with
HPHC's determination that continued residential treatment was not
medically necessary for Doe. We conclude that the administrative
record upon which the district court based its finding should have
been supplemented. We therefore reverse in part, vacate in part,
and remand for further proceedings.
I.
A.
The following facts are undisputed. On January 17,
2013, Doe was admitted to the Austen Riggs Center ("Riggs") in
Stockbridge, Massachusetts for residential mental health
treatment. She was experiencing psychosis, suicidal ideation,
depression, and anxiety. At the time, Doe was insured under her
father's employer-provided HPHC plan (the "Plan"). HPHC
contracted with another insurance company, United Behavioral
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Health ("UBH"), to manage mental health services. In order for
services to be eligible for coverage under the Plan, they must be,
among other things, "medically necessary," a standard defined in
the Plan with a degree of detail that is not relevant to what we
ultimately decide on this appeal.
HPHC approved coverage for an initial residential stay
at Riggs. But on February 5, 2013, HPHC, acting through UBH,
informed Doe by letter that it would not cover additional time
spent at Riggs because further residential treatment was not
medically necessary. As UBH explained in the letter, it based
this denial on the assessment of UBH's Associate Medical Director,
Dr. James Feussner. The letter informed Doe that she had the right
to appeal the denial of benefits to UBH/HPHC, on a standard or
expedited basis, and that she might also be eligible for an
external appeal.
Doe requested an expedited appeal. Pursuant to the Plan,
HPHC continued to cover Doe's residential treatment through the
completion of the internal appeal process. On February 12, 2013,
HPHC denied Doe's appeal and upheld the determination that further
residential treatment was not medically necessary. In the
February 12 letter, HPHC explained that it based its "final
decision on [Doe's] appeal" on an assessment by independent
psychiatrist Dr. Michael Bennett. The letter also advised Doe
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that she might be eligible for an external review through the
Massachusetts Department of Public Health's Office of Patient
Protection ("OPP") and might also be able to pursue legal action.
Despite the fact that residential treatment services
would not be covered beginning on February 13, Doe remained at
Riggs. On her daughter's behalf, Doe's mother filed a request for
an expedited external appeal with the OPP. As part of that
request, Doe's mother signed two authorizations allowing the
release of all relevant medical or treatment records and all
relevant psychotherapy notes for review in the appeal. The
reviewer engaged by the OPP to conduct the review wrote Doe on
March 12, 2013, upholding the denial of continued residential
treatment based on the assessment of a board-certified
psychiatrist. At her parents' expense, Doe stayed at Riggs until
mid-June. On June 18, 2013, Doe was discharged and admitted to a
higher level of care -- an inpatient facility -- for several days.
On June 24, 2013, she was re-admitted to Riggs, where she remained
until August 7, 2013. HPHC paid for Doe's inpatient stay in June
2013, as well as her entire second admission to Riggs from June 24,
2013 to August 7, 2013, so coverage for these stays is not at issue
in this appeal.
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B.
At some point after HPHC denied Doe's expedited appeal,
Doe retained counsel. In February 2014, Doe's attorney wrote to
HPHC expressing a desire to resolve the dispute "amicably rather
than through litigation." She enclosed with the letter Doe's
complete medical records from Riggs spanning both admissions
(January 17, 2013 to August 7, 2013,1 minus the brief period spent
in inpatient treatment in June 2013), as well as a narrative report
from Doe's treating psychologist, Dr. Sharon Krikorian.
Giving a preview of her position in litigation should it
come to that, Doe's attorney also asserted that because neither
UBH, HPHC, nor the external reviewer had reviewed the complete
medical records, their reviews were incomplete and did not comply
with ERISA. In short, counsel took the position that the record
of how Doe's actual treatment played out after HPHC's denial of
coverage was relevant to determining whether her stay at Riggs
between February 13 and her first discharge was medically
necessary. Counsel requested that HPHC reverse its February 12
decision and reimburse Doe for the uncovered portion of her stay.
HPHC denied this request on July 23, 2014, asserting that it had
reviewed Doe's February 19 "letter, the accompanying documents and
1 The letter identifies the closing date as August 14, rather
than August 7, but this appears to be a typographical error.
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the underlying case" but that it agreed with its previous decisions
and upheld its denial "for the reasons previously stated."
Doe eventually sued HPHC and the Plan in March 2015
challenging the denial of coverage and seeking reimbursement for
the cost of her uncovered residential treatment from February 13,
2013 through June 18, 2013. Before the newly filed lawsuit moved
forward, in-house counsel for HPHC contacted Doe's attorney and
asserted for the first time that Doe had failed to exhaust her
administrative remedies. At this point, HPHC's exhaustion
argument appeared to be directed at claims that were submitted to
HPHC after it concluded its initial internal appeal on February 12,
2013 and thus were never, in HPHC's view, "actually formally
appealed." HPHC offered to waive the expired deadline and conduct
a formal appeal of these claims.
With Doe's attorney contesting the failure-to-exhaust
contention, the two sides then proceeded to do what good lawyers
do. They continued to explore the possible settlement of the
underlying dispute. Unsuccessful, they nevertheless did agree to
the parameters for a renewed review of Doe's claim for benefits by
HPHC (to which we will refer as the post-filing review), including
a specification of which documents HPHC would consider and the
time frame in which it would conduct the review. In preparation
for the post-filing review, HPHC provided Doe with all of the
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denial letters associated with Doe's claims and the clinical
rationale relied upon in reaching those decisions. In response,
Doe provided HPHC with Doe's complete medical records from both
admissions at Riggs (spanning January 17, 2013 to August 7, 2013),
a narrative report prepared by Dr. Krikorian, and a report prepared
by Dr. Edward Darell regarding Doe's second admission to Riggs.
Finally, the parties jointly secured several extensions of the
deadline for HPHC to answer Doe's complaint to allow for completion
of the post-filing review.
On September 30, 2015, HPHC informed Doe by letter that
it was still denying coverage for the disputed period (February 13,
2013 to June 18, 2013), this time based on the opinion of HPHC
Medical Director Dr. Joel Rubinstein. HPHC explained that Dr.
Rubinstein had reviewed various documents (including Doe's medical
records and her case file), had spoken with Doe's providers at
Riggs, and concluded that continued residential treatment was not
medically necessary. HPHC attached Dr. Rubinstein's review to its
letter.
After Doe requested an opportunity to respond to HPHC's
denial, the parties filed in October a joint motion to stay the
case. In their motion, the parties explained that they had "agreed
to permit Ms. Doe to complete a pending Administrative Review" of
her claims. They further stated that "[d]ocuments submitted or
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generated as part of the Administrative Review[] will be part of
the Administrative Record in this case."
Two months after the parties filed the motion to stay,
on December 3, 2015, Doe sent HPHC a letter responding to its
September 30 decision. In that letter, Doe explained that
"[p]ursuant to the parties' agreed-to parameters of HPHC's medical
review," she was submitting additional information responding to
Dr. Rubinstein's review. This information included a report by an
independent psychiatrist, Dr. Gregory Harris, and a letter by
Riggs's Associate Medical Director, Dr. Eric Plakun.
On February 5, 2016, the parties filed a joint status
report informing the court that HPHC "require[d] additional time
to complete the Administrative Review and to respond to the
materials submitted by [Doe]." On February 26, 2016, the parties
filed a second joint status report stating that HPHC had
"considered [Doe's] additional information" and would soon provide
Doe with "a detailed response denying the claims." That same day,
HPHC sent Doe a letter explaining that it had reviewed the
additional documentation Doe had submitted on December 3,
including the opinions of Dr. Harris and Dr. Plakun, and that it
was "upholding its prior decisions." HPHC noted that nothing had
been submitted, in the course of what it characterized as "this
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voluntary administrative review, . . . that would give [it]
grounds to alter its previous coverage determinations."
When litigation resumed, the district court ordered HPHC
to provide Doe with a proposed record for judicial review. HPHC
filed with the court an administrative record that included Doe's
medical records from her first admission to Riggs. Contrary to
the parties' prior agreement as expressed in the October motion to
stay, the records HPHC submitted did not include the other records
"submitted or generated as part of" the post-filing review. In
particular, HPHC's submitted record did not include the medical
records from Doe's second admission, Dr. Darrell's review, or the
additional reports of Drs. Harris and Plakun that Doe submitted as
part of her December 3, 2015 letter.
Doe then filed a motion to expand the scope of the
administrative record submitted by HPHC so that it would be
consistent with the parties' prior representation to the court.
Doe specifically requested that the district court include four
additional categories of documents: (1) medical records from
Doe's second admission to Riggs; (2) communications between
counsel related to both admissions and to the post-filing review;
(3) the post-filing review HPHC conducted, including the report of
Dr. Rubinstein; and (4) the additional documents Doe submitted in
response to Dr. Rubinstein's review, including the reports of
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Drs. Harris and Plakun. The district court held a hearing at which
it partially granted Doe's motion. The court declined to include
medical records or communications related to Doe's second
admission to Riggs, for which HPHC granted coverage. But it noted
that the parties had agreed to include medical records from Doe's
first admission (the February to June 2013 period), and found that
it was therefore proper to also include the additional expert
reports of Drs. Harris and Plakun, as well as Dr. Rubinstein's
review, HPHC's post-filing denial letter of September 30, 2015,
and HPHC's post-filing denial letter of February 26, 2016.
Two months later, on the same day that she filed a motion
for summary judgment, Doe filed a second motion to expand the scope
of the record to include the narrative report of Dr. Krikorian
that Doe had submitted as part of the post-filing review. When
the district court subsequently issued its summary judgment order,
it not only denied Doe's second motion to further expand the scope
of the administrative record, but it also reconsidered portions of
its ruling on Doe's first motion. Upon determining in its summary
judgment ruling that the OPP's March 12, 2013 decision constituted
the final administrative decision in Doe's case, the court limited
its de novo review to medical records and other documents that
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were generated through that date and excluded any documents created
afterward, including the reports of Drs. Harris and Plakun.2
Having thus defined the administrative record to exclude
Doe's submissions in the post-filing review, the district court
turned its attention to the merits of the benefits denial. The
district court had determined, as a threshold matter, that because
the Plan documents did not expressly provide for discretionary
authority on the part of HPHC in determining medical necessity,
the proper standard of review was de novo. Applying this standard,
the court then determined that continued residential treatment at
Riggs was not medically necessary for Doe. Finally, the court
found that HPHC had complied with ERISA in providing a full and
fair review of Doe's claim and that, even if that were not the
case, Doe had failed to show prejudice.
Doe now appeals.
II.
Doe challenges both the district court's definition of
the administrative record and its finding on the merits against
her based on that record. We address each challenge in turn.
2 The court noted that although the OPP report reflects that
the external reviewer considered Doe's medical records, "[i]t does
not provide an end date for those records." In response to this
uncertainty, the district court took an "expansive view and
reviewed Jane's medical records up to and including March 12, 2013
as part of the administrative record."
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A.
We begin with the dispute about the record. The parties
spar over the appropriate standard of review for determining
whether the district court erred in denying Doe's motions to expand
the scope of the administrative record, with Doe advocating for de
novo review and HPHC arguing for abuse of discretion. We need not
resolve this question today because, while we offer no criticism
of the district court's care and diligence in attempting to
determine the proper scope of the record, under either standard we
disagree with its ultimate determination. Our reasoning follows.
In a denial of benefits case, "[t]he decision to which
judicial review is addressed is the final ERISA administrative
decision." Orndorf v. Paul Revere Life Ins. Co., 404 F.3d 510,
519 (1st Cir. 2005). "[T]he final administrative decision acts as
a temporal cut off point" and, absent a good reason, courts
reviewing that decision are limited to evidence that was presented
to the administrator. Id. at 519–20 ("We need not catalogue the
situations in which new evidence is admissible, other than to note
it is more obviously relevant when the attack is on the process of
decision making as being contrary to the statute than on the
substance of the administrator's decision."); see also Liston v.
Unum Corp. Officer Severance Plan, 330 F.3d 19, 23 (1st Cir. 2003)
("[A]t least some very good reason is needed to overcome the strong
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presumption that the record on review is limited to the record
before the administrator.").
So, we ask, first, was the "final administrative
decision" OPP's denial of Doe's appeal or HPHC's completion of the
post-filing review? The parties' currently differing positions on
this question are premised on their respective views of the post-
filing review. HPHC argues that the post-filing review was
"undertaken in the spirit of conciliation" as part of settlement
discussions and did not reopen Doe's administrative case. HPHC
thus maintains that the OPP's decision on March 12, 2013 was the
final administrative decision for purposes of this suit. Doe
counters that HPHC voluntarily reopened Doe's administrative
proceeding, which ultimately concluded with the final decision
HPHC issued on February 26, 2016, and that HPHC should be bound by
its agreement concerning the record.
The beginning portion of the record contains some
ambiguity on this question. As we noted, HPHC's initial assertion
of Doe's failure to exhaust administrative remedies, as part of
its offer of an additional "formal appeal," does align with HPHC's
assertion in its appellate briefing that its reference to Doe's
failure to exhaust administrative remedies was limited to the
invoices that Riggs, not Doe, submitted to HPHC after the OPP
decision. And in one of Doe's responses to HPHC's offer, she
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opened her email with "Thank you for kicking off our combined
efforts to settle this matter." These interactions suggest that
there was some initial uncertainty among the parties regarding
what precise claims required exhaustion and whether they were
exploring a continuation of the administrative process concerning
the denied claims or a settlement negotiation.
But by October 2015, when the parties filed a joint
motion to stay the case and HPHC filed its accompanying answer,
any ambiguity was gone. As we have noted, the parties moved to
stay the case after HPHC had denied Doe's post-filing appeal based
on the assessment of Dr. Rubinstein and after HPHC had agreed to
allow Doe to respond to that denial, but before Doe had submitted
the additional reports of Drs. Harris and Plakun. In their motion,
the parties informed the court that they had "agreed to permit Ms.
Doe to complete a pending Administrative Review of her health
insurance benefits claims prior to proceeding further with this
federal court action." They went on: "Documents submitted or
generated as part of the Administrative Review[] will be part of
the Administrative Record in this case." Finally, the parties
explained that "staying this case will permit the parties to
complete the Administrative Review of Ms. Doe's benefits claims
and provide the Court with a complete Administrative Record to
review, or, in the alternative, moot this action in its entirety."
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So, HPHC explicitly agreed -- twice in a two-page document -- that
documents submitted or generated as part of Doe's pending
"Administrative Review" would be included in the administrative
record before the court.
The parties each had good reason to reopen the review
and the record. Doe had accused HPHC of conducting a deficient
review. HPHC had accused Doe of waiving her rights by failing to
exhaust administrative remedies. Continuing or reopening the
administrative review had the potential to eliminate both of those
threatened procedural parries.
The district court acknowledged the parties' clear
agreement, but for three reasons decided not to enforce it. We
review each reason in turn.
First, the district court relied on prior circuit
precedent rejecting efforts of a party to supplement the
administrative record after a final administrative decision is
made. See Orndorf, 404 F.3d at 520; Liston, 330 F.3d at 23. Of
course, this precedent begs the question of when the final
administrative decision was made. More importantly, in those
cases, one party sought to expand the record more broadly than the
other. See Orndorf, 404 F.3d at 519 (noting plaintiff's argument
that the trial judge "should have admitted evidence outside of the
administrative record"); see also Denmark v. Liberty Life
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Assurance Co. of Bos., 566 F.3d 1, 9-10 (1st Cir. 2009)
(summarizing the parties' differing positions on the permissible
scope of discovery in ERISA cases); Liston, 330 F.3d at 23-24
(noting that plaintiff's argument regarding the impropriety of
summary judgment was based on evidence beyond the administrative
record). Here, both parties expressly agreed to reopen (or
continue) the administrative proceeding and both agreed that the
additional records submitted as part of that reopening would not
only be considered in the additional review but would also become
part of the administrative record before the district court. In
none of our cases have we suggested that an ERISA fiduciary can
unilaterally walk away from a clear agreement with the beneficiary
concerning the status of an administrative review under a plan.
Second, the district court was concerned that allowing
Doe to supplement the record might deter future claims fiduciaries
from trying to settle lawsuits. While we understand this concern,
we clearly do not have a settlement or mediation event here. The
process undertaken by the parties after Doe filed suit did not
look like a settlement or mediation. HPHC did not offer Doe a sum
of money or other compensation as an incentive to drop her suit.
Nor did the additional review consist of negotiations regarding a
final resolution of the dispute. Rather, HPHC received information
from Doe under an express agreement concerning the nature and
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effect of the post-filing review and then made an up or down
decision as it would in normal course. Moreover, this is not a
situation in which a court is being asked to infer the reopening
of the record from the parties' continued talking or negotiating,
with or without the submission of new information. Rather, we
have an express agreement between the parties that records from a
renewed review would be part of the administrative record. Holding
HPHC to the terms of that agreement poses no risk that other claims
fiduciaries will accidentally find themselves in the same boat
without such an express agreement to get on board.
Third, the district court believed that technical
requirements under ERISA precluded honoring the parties'
agreement. Taking to heart our instruction that "the plain
language of the plan provisions should normally be given effect,"
Doe v. Harvard Pilgrim Health Care, Inc., 15-CV-10672, 2017 WL
4540961, at *10 (D. Mass. Oct. 11, 2017) (quoting Stephanie C. v.
Blue Cross Blue Shield of Mass. HMO Blue, Inc., 852 F.3d 105, 117
(1st Cir. 2017) (Stephanie C. II)), the district court determined
that the post-filing review undertaken by the parties "was not an
administrative review as defined by the Plan," id. Our case law,
though, acknowledges that ERISA administrative reviews can be
reopened and their records supplemented. In Gross v. Sun Life
Assurance Co. of Canada, 734 F.3d 1 (1st Cir. 2013), we considered
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an appeal from the denial of long-term disability benefits. After
reviewing the medical evidence in the record and nine days of video
surveillance of the claimant, which arguably undermined the
medical evidence, we determined that "we ha[d] no choice but to
remand" to the claims administrator, id. at 27, for reconsideration
on a supplemented record, id. at 28. We see no reason why parties
should not be allowed to do the same thing by express agreement.
HPHC counters, puzzlingly, that the agreement it made
regarding the record in the motion to stay "concerns the documents
that will constitute the Administrative Record and not whether the
OPP decision would no longer be treated as the Final Administrative
Decision for the purpose of judicial review." Relatedly, it
asserts that the joint motion "relates only to those documents
that are relevant to the Final Administrative Decision on March 13,
2013." But the joint motion was quite clear that the parties
understood the "Administrative Review" to include the post-filing
review -- which the joint motion explicitly said had yet to be
completed -- and that documents submitted or generated as part of
that pending process would be incorporated into the administrative
record for the court "in this case" "to review." Notably, the
stay not only allowed both parties to supplement the record, but
also mooted Doe's argument that HPHC's first review was inadequate
under ERISA for failure to consider all relevant information.
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HPHC's second line of defense is that an agreement to
alter the date of the final administrative decision, a move it
contends would fundamentally alter the case, "would not have been
made in such a cryptic and cursory fashion." We see nothing
cryptic about the parties' agreement. And HPHC does not elaborate
further.
We are left with no persuasive argument that we should
allow HPHC to avoid its agreement to include documents from the
post-filing review in the administrative record that the district
court considers in its de novo review of the benefits denial. In
the words of Orndorf, we hold that there is more than "good reason"
here to deem the documents submitted to HPHC during the post-
filing review to be part of the record upon which the merits of
this case should turn.
One loose end remains concerning the scope of the
administrative record. Neither party advances as a backup argument
that HPHC's September 30, 2015 decision based on Dr. Rubinstein's
review -- rather than its February 26, 2016 decision that also
considered the reports of Drs. Harris and Plakun -- qualifies as
the final administrative decision. We nevertheless address this
question briefly, because it has implications for the district
court's analysis on remand. In short, HPHC itself appears to have
viewed its February 26 determination as the completion of the post-
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filing review process. In its February 2016 letter, HPHC described
its decision as HPHC's "concluding remarks on the informal review
process the parties agreed to undertake" and informed Doe that it
"ha[d] now completed its informal review." We see no reason to
question HPHC's apparent view that whatever process began with its
offer to conduct a post-filing review, that process ended on
February 26, 2016.
In sum, we conclude that the administrative record for
purposes of reviewing the benefits decision in this case includes
the documents submitted or generated as part of the post-filing
review process as concluded on February 26, 2016. This includes
all of Doe's medical records from both admissions to Riggs, as
well as the reports of Dr. Darrell, Dr. Harris, Dr. Plakun, and
Dr. Krikorian.
B.
We turn next to deciding our own standard for reviewing
the merits of the benefits denial. The two choices urged by the
parties are de novo, as urged by Doe, and clear error, as urged by
HPHC. The choice makes a difference in how we proceed. If our
review of the merits decision is de novo, then it is of no moment
that the district court based its own decision on a truncated
record. All the documents that should have been included in the
record are docketed and filed in this case. So we could conduct
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a de novo review without any remand. Cf. Gross, 734 F.3d at 16
("Given that we play the same role as the district court in
evaluating [the administrator's] denial of benefits, we have
chosen not to remand to that court for application of the correct,
de novo, standard for reviewing [the administrator's] decision.").
Conversely, if we review only for clear error the district court's
decision affirming de novo HPHC's denial of benefits, then we need
remand to the district court so that it can first make its decision
on the proper record.
We recently observed that our precedent on the proper
standard of appellate review of district court de novo findings in
ERISA cases is "murky." Stephanie C. II, 852 F.3d at 109–12. In
Orndorf, we applied de novo appellate review. 404 F.3d at 516–
18. Subsequently, though, we applied clear error review. See
Tsoulas v. Liberty Life Assurance Co. of Bos., 454 F.3d 69, 75
(1st Cir. 2006). In Stephanie C. II, we noted "the tension in our
decisions" and reflected on many of the relevant considerations
bearing on this issue, ultimately finding that we did not need to
decide the issue there. 852 F.3d at 112. With the benefit of
that discussion, and the Supreme Court's more recent opinion in
U.S. Bank National Ass'n ex rel. CWCapital Asset Management LLC v.
Village at Lakeridge, LLC, 138 S. Ct. 960 (2018), we now hold that
when a district court examines the denial of ERISA benefits de
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novo, we review the court's factual findings only for clear error.3
Our reasoning follows.
We begin with the observation that it is our general
practice to review factual determinations for clear error. For
example, when faced with an appeal from a bench trial, we review
factual findings by the district court for clear error, even where
those findings are based on physical or documentary evidence rather
than credibility determinations. See Limone v. United States, 579
F.3d 79, 94 (1st Cir. 2009) (quoting Anderson v. City of Bessemer
City, 470 U.S. 564, 573-74 (1985)); see also Mullin v. Town of
Fairhaven, 284 F.3d 31, 36–37 (1st Cir. 2002) (same rule applies
to judgment on partial findings). This practice extends well
beyond bench trials, see, e.g., Corp. Techs., Inc. v. Harnett, 731
F.3d 6, 10 (1st Cir. 2013) (ruling on a motion for a preliminary
injunction); Sawyer Bros., Inc. v. Island Transporter, LLC, 887
F.3d 23, 29 (1st Cir. 2018) (factual determinations in fixing
damages); Blattman v. Scaramellino, 891 F.3d 1, 3 (1st Cir. 2018)
(federal common law of attorney-client privilege), and applies in
the criminal context as well, see, e.g., United States v. McDonald,
3 We offer no opinion on the standard of appellate review that
applies when the district court reviews a discretionary
determination by a plan administrator under the arbitrary and
capricious standard.
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804 F.3d 497, 502 (1st Cir. 2015) (motion to suppress); United
States v. Giggey, 867 F.3d 236, 242 (1st Cir. 2017) (sentencing).
Doe does not dispute that the district court's finding
regarding medical necessity is factual in nature. Cf. Stitzel v.
N.Y. Life Ins. Co., 361 F. App'x 20, 28 (11th Cir. 2009) (per
curiam) (noting that whether claimant's care is "medically
necessary" is a factual determination); Rush v. Parham, 625 F.2d
1150, 1153–54 (5th Cir. 1980) (treating issue of whether
transsexual surgery was medically necessary as factual in nature).
And Doe points us to nothing in ERISA that would cause one to doubt
the application of this general practice of clear error review.
That this ERISA case arrived at our doorstep after being
resolved under the rubric of summary judgment does not give us
reason to depart from the general rule. In the ERISA context,
"[t]he burdens and presumptions normally attendant to summary
judgment practice do not apply." Stephanie C. v. Blue Cross Blue
Shield of Mass. HMO Blue, Inc., 813 F.3d 420, 425 n.2 (1st Cir.
2016) (Stephanie C. I) (citing Scibelli v. Prudential Ins. Co. of
Am., 666 F.3d 32, 40 (1st Cir. 2012)). Rather, a motion for
summary judgment in an ERISA case, like in other administrative
law contexts, is simply a vehicle for teeing up the case for
decision on the administrative record. See Doe v. Standard Ins.
Co., 852 F.3d 118, 123 n.3 (1st Cir. 2017) (quoting Stephanie C.
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I, 813 F.3d at 425 n.2)); Boston Redevelopment Auth. v. Nat'l Park
Serv., 838 F.3d 42, 47 (1st Cir. 2016). In reaching its decision
on the record, a district court on de novo review "may weigh the
facts, resolve conflicts in the evidence, and draw reasonable
inferences." Stephanie C. II, 852 F.3d at 111; see also U.S. Bank,
138 S. Ct. at 967 (explaining that when mixed questions of law and
fact require a court to "marshal and weigh evidence . . . appellate
courts should usually review [the resulting] decision with
deference"). In this way, summary judgment in the ERISA context
is akin to judgment following a bench trial in the typical civil
case.
To the extent ERISA benefits cases are analogous to
administrative law cases, that comparison also points toward
deferential review. In the case of many administrative
adjudications, we receive appeals directly from the agency. See,
e.g., Santos-Guaman v. Sessions, 891 F.3d 12 (1st Cir. 2018) (Board
of Immigration Appeals); Southcoast Hosps. Grp., Inc. v. NLRB, 846
F.3d 448 (1st Cir. 2017) (National Labor Relations Board). And in
those cases -- even without an intermediate level of review
comparable to that performed by the district court here -- we defer
to factual findings of the administrator, generally via the
substantial evidence standard. See, e.g., Santos-Guaman, 891 F.3d
at 16; Southcoast Hosps. Grp., 846 F.3d at 453. In an ERISA case
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like the one before us -- where our review is preceded by a district
court's independent de novo review -- there is even more reason to
accord some deference to the factual analysis conducted below.
Finally, clear error appellate review also aligns with
the approach our sister circuits have adopted in similar ERISA
cases. See Williams v. Int'l Paper Co., 227 F.3d 706, 714 (6th
Cir. 2000) ("Factual findings inherent in deciding an ERISA claim
are reviewed for clear error."); Bilheimer v. Fed. Exp. Corp. Long
Term Disability Plan, 605 F. App'x 172, 181 (4th Cir. 2015) (per
curiam) (unpublished) (reviewing the district court's finding that
claimant was totally disabled for clear error); see also Muller v.
First Unum Life Ins. Co., 341 F.3d 119, 124 (2d Cir. 2003)
(construing the district court's disposition of defendant's
"motion for judgment on the administrative record" as "essentially
a bench trial 'on the papers'"); EEOC v. Maricopa Cty. Cmty. Coll.
Dist., 736 F.2d 510, 513 (9th Cir. 1984) (applying clear error
review to a summary judgment decision issued on stipulated facts).
We therefore adopt clear error review here. And, as we have
explained, we cannot properly conduct such a deferential review in
this case until we first have the benefit of the district court's
views on the complete administrative record.
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III.
For the foregoing reasons, we reverse the district
court's denial of Doe's motions to expand the scope of the
administrative record; we vacate its order granting summary
judgment for HPHC; and we remand for further proceedings consistent
with this opinion. Costs are awarded to plaintiff.
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