Shane v. Albertson's Inc. ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STACEY SHANE, 
Plaintiff-Appellee,
v.
ALBERTSON’S INC., EMPLOYEES’ No. 05-56319
DISABILITY PLAN; ALBERTSON’S INC.,
EMPLOYEES’ LIFE INSURANCE  D.C. No.
CV 04-1087-AHM
BENEFITS PLAN; ALBERTSON’S INC.,
OPINION
EMPLOYEES’ MEDICAL AND DENTAL
PLAN; and ALBERTSON’S INC.,
EMPLOYEES’ BENEFIT PENSION PLAN,
Defendants-Appellants.

Appeal from the United States District Court
for the Central District of California
A. Howard Matz, District Judge, Presiding
Argued and Submitted
June 7, 2007—Pasadena, California
Filed October 15, 2007
Before: Johnnie B. Rawlinson and Stephen S. Trott,
Circuit Judges, and Mary H. Murguia,* District Judge.
Opinion by Judge Murguia;
Dissent by Judge Trott
*The Honorable Mary H. Murguia, United States District Judge for the
District of Arizona, sitting by designation.
13969
13972 SHANE v. ALBERTSON’S INC.
COUNSEL
Lisa S. Kantor, Kantor & Kantor LLP, Northridge, California,
for the plaintiff-appellee.
W. Mark Gavre, Parsons Behle & Latimer, Salt Lake City,
Utah, for the defendants-appellants.
OPINION
MURGUIA, District Judge:
Albertson’s, Inc., Employees’ Disability Plan and several
other Albertson’s Employee Plans (“Albertson’s”) bring this
appeal from the district court’s order reversing Albertson’s
decision to terminate Plaintiff-Appellee Stacey Shane’s (“Ms.
Shane”) Long Term Disability (“LTD”) benefits received
under Albertson’s Employees’ Disability Benefits Plan (the
“Disability Plan”). We have jurisdiction over this appeal pur-
suant to 28 U.S.C. § 1291, and we affirm.
I. BACKGROUND
Ms. Shane is a former Albertson’s employee and partici-
pated in Albertson’s Disability Plan. In April of 1999, Ms.
SHANE v. ALBERTSON’S INC. 13973
Shane suffered a knee injury and began receiving LTD Bene-
fits on January 31, 2000. From January 31, 2000, through Jan-
uary 30, 2002, Ms. Shane received and was continuously re-
approved for LTD benefits. However, based upon the results
of a “2 year Recertification” initiated by Albertson’s in April
of 2002, Albertson’s Medical Review Committee (“MRC”)
discontinued Ms. Shane’s LTD benefits beyond April 30,
2003, stating that Ms. Shane no longer met the Disability
Plan’s definition of “Total Disability.” Ms. Shane’s adminis-
trative appeal of the decision was denied on September 23,
2003. On February 16, 2004, Ms. Shane filed the instant suit
in district court pursuant to 29 U.S.C. § 1132(a) of the
Employee Retirement Income Security Act of 1974
(“ERISA”).
Before the district court, several issues were presented
including whether the court should refer to Albertson’s Dis-
ability Plan effective as of August 1, 1993 (the “1993 Disabil-
ity Plan”) or the Disability Plan effective as of February 1,
2002 (the “2002 Disability Plan”) and the appropriate stan-
dard for reviewing the termination of Ms. Shane’s LTD bene-
fits. The district court set the matter for trial on March 22,
2005; however, after receiving briefing from the Parties, the
district court vacated the trial date and took the matter under
submission. On July 26, 2005, the district court ruled in favor
of Ms. Shane by finding that the 1993 Disability Plan gov-
erned Ms. Shane’s LTD claim and, in applying the de novo
standard of review, that Ms. Shane was entitled to continue
receiving LTD benefits. The instant appeal by Albertson’s
followed.
II. STANDARD OF REVIEW
“We review de novo a district court’s choice and applica-
tion of the standard of review to decisions by fiduciaries in
ERISA cases.” Abatie v. Alta Health & Life Ins. Co., 458 F.3d
955, 962 (9th Cir. 2006) (en banc) (citation omitted). “Thus,
we review the matter anew, the same as if it had not been
13974 SHANE v. ALBERTSON’S INC.
heard before, and as if no decision previously had been
entered.” Freeman v. DirecTV, Inc., 457 F.3d 1001, 1004 (9th
Cir. 2006) (citing Ness v. Commissioner, 954 F.2d 1495, 1497
(9th Cir. 1992)). “We also review de novo the district court’s
interpretation of an ERISA insurance policy’s language [and]
. . . the district court’s findings of fact for clear error.” Metro-
politan Life Ins. Co. v. Parker, 436 F.3d 1109, 1113 (9th Cir.
2006) (citations omitted).
III. DISCUSSION
A. Did the district court err in finding that the 1993 Dis-
ability Plan governed Ms. Shane’s LTD benefits
claim?
Albertson’s contends that the district court erred in finding
that the 1993 Disability Plan, rather than the 2002 Disability
Plan, applied to Ms. Shane’s LTD claim. However, Albert-
son’s contention on this point is not supported by the record.
Notably, the 1993 Disability Plan, while granting Albertson’s
the right to amend the provisions of the Disability Plan at any
time also expressly provides that:
[a]ny amendment to the Plan shall be effective only
with respect to Total Disabilities which commence
on and after the effective date of the amendment.
Total Disabilities commencing prior to the effective
date of a Plan amendment are to be provided for
under the terms of the Plan in effect at the time those
disabilities commenced.
[1] Importantly, Ms. Shane began receiving her LTD bene-
fits on January 31, 2000, thus qualifying her as a “Total Dis-
ability” under the scope of the 1993 Disability Plan and well
prior to the effective date of the “Amended and Restated”
2002 Disability Plan. In addition, based upon Ms. Shane’s
qualification for LTD benefits prior to the effective date of the
2002 Disability Plan, the plain language of the 2002 Disabil-
SHANE v. ALBERTSON’S INC. 13975
ity Plan defers to the 1993 Disability Plan by stating that
“Total Disabilities commencing prior to the effective date of
a Plan amendment are to be provided for under the terms of
the Plan in effect at the time those disabilities commenced.”
Because, Ms. Shane’s “Total Disability” commenced while
the 1993 Disability Plan was in effect, the subsequent 2002
Disability Plan, by its own terms, has no application.
[2] We also find unpersuasive Albertson’s argument that
the 2002 Disability Plan applies based upon the fact that the
2002 Disability Plan was in existence prior to the MRC’s
2003 decision to terminate Ms. Shane’s benefits. Albertson’s,
citing Grosz-Salmon v. Paul Revere Life Ins. Co., 237 F.3d
1154, 1160-61 (9th Cir. 2001), argues that “[i]t is well settled
that the controlling plan is the plan in effect at the time of
(sic) the final decision is made.” However, Albertson’s argu-
ment overstates the holding in Grosz-Salmon and ignores the
plain language of the 1993 and 2002 Disability Plans. In
Grosz-Salmon the employee’s disability coverage claim was
governed by the plan in effect at the time the employee’s
claim accrued because “[n]othing in [the employee’s policy
with the employer] . . . assured employees that their rights
were vested.” Id. at 1160. In this case, unlike Grosz-Salmon,
both the 1993 and 2002 Disability Plans possess clear lan-
guage establishing that Ms. Shane’s LTD claim “[is] to be
provided for under the terms of the Plan in effect at the time
[her] disabilit[y] commenced.” Ms. Shane’s LTD benefits
based upon her “[t]otal [d]isability” commenced during the
1993 Disability Plan and prior to the 2002 Disability Plan,
thus her claim is governed by the 1993 Disability Plan. As
such, the district court’s determination to apply the 1993 Dis-
ability Plan is sound.1
1
There is dispute between the Parties as to whether the district court’s
decision to apply the 1993 Disability Plan is subject to a clear error or de
novo standard of review. Ninth Circuit authority provides that such a
determination is a factual finding subject to clear error standard of review.
See Metropolitan, 436 F.3d at 1116 (remanding to district court “to make
a factual finding as to which plan governed” employee benefits claim).
However, under either standard the district court’s finding is sound.
13976 SHANE v. ALBERTSON’S INC.
B. Did the district court err in relying on the doctrine of
contra proferentem in determining that the 1993 Dis-
ability Plan governed Ms. Shane’s LTD benefit claim?
[3] In finding that the 1993 Disability Plan controlled Ms.
Shane’s LTD claim, the district court cited the doctrine of
contra proferentem by stating that “[i]f a term is ambiguous
it will be construed against the drafter and aligned with the
reasonable expectations of the insured.” As correctly noted by
Albertson’s, the doctrine of contra proferentem is not applica-
ble to self-funded ERISA plans, such as the Disability Plan at
issue in this case. See Winters v. Costco Wholesale Corp., 49
F.3d 550, 554 (9th Cir. 1995) (“[T]he rule of contra profer-
entem is not applicable to self-funded ERISA plans that
bestow explicit discretionary authority upon an administrator
to determine eligibility for benefits or to construe the terms of
the plan.”). Therefore, the district court’s citation to the doc-
trine raises a concern regarding its determination that the
1993 Disability Plan controls. However, while the district
court cited the doctrine of contra proferentem, the district
court’s decision is wholly absent of any indication that it actu-
ally applied the doctrine in construing the provisions of the
1993 and 2002 Disability Plans. A plain reading of the district
court’s decision demonstrates that none of the relevant terms
or provisions construed were deemed to be ambiguous. As
such, we find the citation to the doctrine to be immaterial to
the district court’s ultimate determination applying the 1993
Disability Plan.
C. Did the district court apply the correct standard of
review regarding Albertson’s decision to discontinue
LTD benefits to Ms. Shane?
Albertson’s contends that even if the district court properly
relied on the 1993 Disability Plan, its decision to apply the de
novo standard of review rather than the abuse of discretion
standard to Albertson’s decision to terminate Ms. Shane’s
LTD benefits constitutes reversible error. Albertson’s takes
SHANE v. ALBERTSON’S INC. 13977
issue with the district court’s finding that the MRC, the body
that terminated Ms. Shane’s LTD benefits, was not properly
vested with the requisite discretionary authority to review Ms.
Shane’s LTD claim, which led to the district court’s de novo
review.
As an initial matter, there is no issue with the district
court’s finding that the 1993 Disability Plan provides discre-
tionary authority to the identified Plan fiduciary, the Trustees,
to review and evaluate LTD claims such as Ms. Shane’s.
Notably, the Disability Plan grants the Trustees the authority
“[t]o determine all questions relating to the eligibility of
Employees for benefits, as well as the amount and payment
of benefits.” As such, had the Trustees made the decision to
discontinue Ms. Shane’s LTD benefits the district court would
have likely invoked the abuse of discretion standard of
review. See Abatie, 458 F.3d at 963 (“[I]f the plan does confer
discretionary authority as a matter of contractual agreement,
then the standard of review shifts to abuse of discretion.”)
(citation omitted) (emphasis in original). However, the MRC,
not the Trustees, was the body that made the decision to ter-
minate Ms. Shane’s LTD benefits. Therefore, the issue is
whether the MRC properly received and was vested with the
Trustees’ discretionary authority to review Ms. Shane’s LTD
claim. If the MRC was not properly vested with such discre-
tion, its decision to terminate Ms. Shane’s LTD benefits
would not be subject to the deferential standard of review of
abuse of discretion. See Jebian v. Hewlett-Packard Co.
Employee Benefits Organization Income Protection, 349 F.3d
1098, 1105 (9th Cir. 2003) (“When an unauthorized body that
does not have fiduciary discretion to determine benefits eligi-
bility renders such a decision . . . deferential review is not
warranted.”) (quoting Sanford v. Harvard Indus., 262 F.3d
590, 597 (6th Cir. 2001)). Importantly, the 1993 Disability
Plan provides the Trustees with the power “[t]o delegate to
the Contract Administrator and Employees of the Employer
such powers and duties as the Trustees shall determine.” Such
“powers and duties” encompass the discretionary authority to
13978 SHANE v. ALBERTSON’S INC.
review LTD claims such as Ms. Shane’s. Moreover, because
the MRC is made of employees of Albertson’s Benefits
Review Committee with the assistance of an independent phy-
sician, the MRC falls within the scope of persons or bodies
eligible to receive the Trustees’ discretionary authority.
Despite the existence of the delegation clause and
employee makeup of the MRC, the district court appears to
have rejected the notion that the MRC was properly vested
with discretionary authority to invoke the deferential standard
of review because of the lack of any express delegation from
the Trustees to the MRC. Specifically, the district court con-
cluded in pertinent part:
While the Trustees did have the power to delegate
their discretionary authority, nothing presented to the
Court indicates that such authority was properly del-
egated. The deposition testimony offered by Mr.
[Michael] Hodge is insufficient to establish other-
wise. See Rodriguez-Abreu [v. Chase Manhattan
Bank, N.A.], 986 F.2d [580,] . . . 584 (1st Cir. 1993)
(holding that because no plan document granted dis-
cretion to the plan administrator and because the
fiduciaries had not expressly delegated their discre-
tionary authority to the plan administrator, the dis-
trict court employed the de novo standard of review)
. . . . Defendants admit that the MRC was the body
tasked with determining whether Ms. Shane was eli-
gible for LTD benefits . . . . Because the MRC was
not expressly granted discretion, I find that the
proper standard of review is de novo.
(Emphasis added).
[4] The above language from the district court’s order
reveals that while it recognized the 1993 Disability Plan’s del-
egation clause, the district court focused on the absence of
any documentation of the delegation to the MRC. However,
SHANE v. ALBERTSON’S INC. 13979
the focus should have been on whether the Disability Plan
contemplated the possibility of a transfer of discretionary
authority to a third-party and whether there was evidence
establishing delegation to the MRC. See Hensley v. Northwest
Permanente P.C. Retirement Plan, 258 F.3d 986, 998 (9th
Cir. 2001), overruled on other grounds by Abatie, 458 F.3d at
966 (holding that delegation of discretionary authority to
third-party from identified plan fiduciary was sufficient
because plan contemplated delegation; the plan did not
require delegation to be in writing; and affidavits were sub-
mitted stating that delegation of discretionary authority took
place). Thus, at the very least, the district court was required
to apply the 1993 Disability Plan’s delegation clause as well
as evaluate the evidence surrounding the transfer of discre-
tionary authority from the Trustees to the MRC, such as the
testimony from Mr. Hodge, the director of Health and Wel-
fare Programs at Albertson’s, describing the delegation to the
MRC.2
[5] However, given this Court’s de novo review of the dis-
trict court’s choice and application of the standard of review
governing Albertson’s termination of Ms. Shane’s LTD bene-
fits, we find no cause to reverse or for a remand. When con-
sidering and applying the delegation clause in conjunction
with the relevant evidence regarding the transfer of discretion-
ary authority to the MRC, it is apparent that the delegation to
the MRC was not in compliance with the 1993 Disability
Plan’s stated requirements. Mr. Hodge’s testimony demon-
strates the existence of an unauthorized delegation to the
MRC, thus invoking the de novo standard of review used by
the district court. Specifically, Mr. Hodge’s testimony estab-
lishes that the Trustees first transferred their discretionary
2
The district court’s focus is also evidenced by its statement that “[t]he
testimony of Mr. Hodge provides the only basis to find that there was any
delegation of authority (from the Trustees to Mr. Snow and from him to
the MRC); there is no documentation of it in the record.” (Emphasis
added).
13980 SHANE v. ALBERTSON’S INC.
authority to Jack Snow, the Vice President of Health and Wel-
fare Development, who in turn transferred such discretionary
authority to the MRC. However, the 1993 Disability Plan
does not contemplate any such procedure for the delegation of
discretionary authority. Rather, the delegation clause only
contemplates delegation from the Trustees to the “Contract
Administrator and Employees of the Employer.” There is
nothing in the Disability Plan’s delegation clause or in the
Disability Plan itself that contemplates further delegation
from an employee, such as Mr. Snow, to any other body of
employees, such as the MRC.3 Thus, even if the district court
expressly and properly considered the delegation clause with
the evidence in the record regarding the actual transfer of dis-
cretionary authority, the district court would have reached the
same result of an improper transfer of discretionary authority,
thus mandating the de novo standard of review.
Albertson’s asserts that we are precluded from affirming
the district court on this basis for two reasons: (1) Ms. Shane
did not raise with the district court this specific argument of
an improper delegation from the Mr. Snow to the MRC; and
(2) the district court did not address Ms. Shane’s new argu-
ment in its decision. However, neither argument is persuasive.
First, contrary to Albertson’s argument, Ms. Shane did
raise this argument to the district court. In Ms. Shane’s
responsive trial brief, she argued that the testimony of Mr.
Hodge supports a finding of an improper delegation to the
MRC. For instance, Ms. Shane argued in relevant part:
Mr. Hodge’s testimony further evidenced that the
3
The dissent concludes from Mr. Hodge’s testimony that the delegation
to the MRC was in compliance with the terms of the Disability Plan. How-
ever, this conclusion is contrary to Mr. Hodge’s express testimony
describing that first “the trustees had expressly delegated their discretion-
ary authority to Jack Snow” and second that “[Mr. Snow] in turn delegated
that discretionary authority to the Benefit Plan Committee[.]”
SHANE v. ALBERTSON’S INC. 13981
Plan Trustees did not delegate this discretionary
authority to the Medical Review Committee, rather,
it was Jack Snow who completed this delegation. As
Jack Snow was not a Trust Plan Trustee, he had no
authority to delegate discretionary authority to the
Medical Review Committee . . . . As such, Jack
Snow’s alleged delegation of discretionary authority
to the Medical Review Committee, insofar as it was
not pursuant to the LTD Plan’s specific allowance
for such a delegation, was not a proper delegation
and does not support a finding sufficient to support
the application of the arbitrary and capricious stan-
dard of review.
In view of Ms. Shane’s argument in the district court,
Albertson’s contention that had this issue of an improper dele-
gation from Mr. Snow to the MRC been raised to the district
court, Albertson’s would have supplemented Mr. Hodge’s tes-
timony “to elaborate on the delegation and its mechanics” is
misplaced. Notably, Albertson’s opening brief cites to a por-
tion of Mr. Hodge’s testimony that describes the delegation as
being first received by Mr. Snow from the Trustees and then
subsequently conveyed to the MRC. Thus, the “mechanics” of
the delegation to the MRC have been sufficiently established.
Second, we do not deem it significant that the district court,
in its decision, did not expressly address or accept Ms.
Shane’s argument of an improper delegation from Mr. Snow
to the MRC. The district court did cite Mr. Hodge’s testimony
describing the transfer from the Trustees to Mr. Snow and
then to the MRC. In addition, because we review this matter
anew under the de novo standard of review, we are not limited
by the district court’s determination. Freeman, 457 F.3d at
1004.
IV. CONCLUSION
[6] The district court properly applied the 1993 Disability
Plan in reviewing Albertson’s decision to terminate Ms.
13982 SHANE v. ALBERTSON’S INC.
Shane’s LTD benefits. While the district court may not have
properly applied and expressly considered the 1993 Disability
Plan’s delegation clause and relevant evidence, we affirm
based upon our de novo review, because the record estab-
lishes that Albertson’s decision-making body, the MRC, was
not properly vested with the requisite discretionary authority
so as to invoke a deferential standard of review by the district
court.
AFFIRMED.
TROTT, Circuit Judge, dissenting:
Even if we assume arguendo that the 1993 Plan controls,
I respectfully disagree with my colleagues’ analysis of the
standard of review applicable to this controversy, because I
believe their approach to be at odds with Hensley v. North-
west Permanente Retirement Plan & Trust, 258 F.3d 986 (9th
Cir. 2001).1 There, we held that the district court properly
applied an abuse of discretion standard of review where the
administrators that denied plaintiffs’ claims received their
authority via a verbal delegation. In doing so, we said:
[T]he Plan provides that “each Committee estab-
lishes procedures for carrying its duties and powers
and keeps records of its proceedings, acts, and other
data necessary to administer the Plan.” Although the
defendants did not produce documentary evidence
showing the delegation of authority from the Physi-
cians Plan administrator to Canter, affidavits from
her and Kirk E. Miller, a Physicians Plan committee
member, state that the committee for several years
1
I am unconvinced that the 1993 Plan governs this dispute. The 2002
Plan was not an amendment to the 1993 Plan, but an entirely new Plan that
applied to all cases as of its effective date: February 1, 2002.
SHANE v. ALBERTSON’S INC. 13983
had delegated to Canter the authority to make initial
claim determinations. Finally, nothing in the Physi-
cians Plan requires that the delegation be in writing.
Id. at 998 (emphasis added).
Here, the 1993 Plan grants the Trustees discretionary
decision-making authority to make decisions and gives it
power to “delegate to the Contract Administrator and
Employees of the Employer such powers and duties as the
Trustees shall determine.” As Article IX, § 9.04 of the Plan
demonstrates, the Plan does not require that any delegation be
in writing; and their authority to delegate is plenary, giving
them the power to delegate “such powers and duties as the
Trustees shall determine.” Michael Hodge indicated that the
Trustees verbally invested the Medical Review Committee
(“MRC”) with authority to review claims, and that MRC exer-
cised the authority for years:
Q. And how is it that the Medical Review Commit-
tee had fiduciary authority?
A. It was delegated from the trustees down through
Jack Snow to me, and Jack actually was the one who
would have delegated the authority to the committee
before I was here, and I just carried that on.
....
Q. And what did Jack Snow specifically state to
you that led you to believe that the trustees had dele-
gated discretionary authority to the committee to
make benefit determinations?
A. The — over the course of five years or so we
discussed that fairly often about delegation of
authority and who was responsible for making deter-
mination and final determinations.
13984 SHANE v. ALBERTSON’S INC.
ER 650 (emphasis added). True, Albertson’s did not submit
documentary evidence to support Hodge’s testimony. How-
ever, neither Hensley nor the 1993 Plan require such docu-
mentation, to the contrary: an oral delegation will suffice. In
addition, it appears circumstantially that effective delegation
did occur because at the time the MRC ultimately denied
Shane’s claimed benefits, the decision-maker under the 1993
Plan — the Plan Trustees — no longer existed! The MRC had
taken their place. Furthermore, the district court relied on
First Circuit authority to ignore Hodge’s uncontradicted testi-
mony, not authority from our Circuit. Hensley controls, not
Rodriguez-Abreu v. Chase Manhattan Bank, N.A., 986 F.2d
580, 584 (1st Cir. 1993).
We seem to have become distracted by the absence of any
express authority in the 1993 Plan permitting the person to
whom the Trustees might delegate discretionary authority to
set up a competent committee such as the MRC to make these
decisions. In the scheme of things, I see this factor as utterly
inconsequential. First, it is not surprising that Albertson’s set
up a committee to make complex decisions on medical mat-
ters such as disability, complete with an independent physi-
cian. Such a committee is certainly superior to one executive.
Moreover, the MRC was well established and regularly func-
tioning by the time the disputed decision was made in this
case. Finally, and most importantly, Hodge’s uncontradicted
testimony demonstrates that the trustees had delegated discre-
tionary authority to the committee to make benefit determina-
tions. Hodge said “we discussed that [the Trustees delegation
to the committee] fairly often about delegation of authority
and who was responsible for making determinations and final
determinations.” I read this testimony in context to indicate
that the MRC was created by the Trustees by way of delega-
tion to Jack Snow.
Under these circumstances, I believe it was not appropriate
for the district court wholly to ignore the Plan’s delegation
clause and Hodge’s testimony. My colleagues don’t either,
SHANE v. ALBERTSON’S INC. 13985
saying that the district court “may not have properly applied
and expressly considered” the relevant evidence, but then
with all respect, my colleague’s conclusion replicates the dis-
trict court’s mistake and exalts form over substance. I reiter-
ate, the MRC was in place and functioning, the Plan Trustees
were long gone. Thus, from this record, I conclude that the
MRC was properly vested with the requisite discretionary
authority to review Ms. Shane’s LTD claim. It follows as day
the night that our standard of review is for an abuse of discre-
tion.
Moreover, I find it hard to believe that the district court’s
inappropriate reference to the contra proferentem insurance
case doctrine is of no moment. Why did the court refer to it
if it was irrelevant? My colleagues appear to believe that the
district court referenced this doctrine and then ignored it. This
is hard for me to accept, especially in the light of the district
court’s findings and conclusions, all of which disfavored the
party that the doctrine puts at a disadvantage: Albertson’s. At
the very least, I would not guess at what the district court did
with this inapplicable doctrine; I would send the case back for
clarification.
With all respect to the district court, its analysis was off
track. Its analysis relied upon an inapplicable doctrine which
inappropriately disfavored Albertson’s, used the wrong prece-
dent, and ignored without reason relevant and material testi-
mony and evidence. I would remand with instruction to start
over without using the doctrine of contra proferentem, to use
Hensley as precedent, and to apply the proper standard of
review.
Thus, I respectfully dissent.