Maybe We Tear It All Down
One Sixth Circuit judge thinks maybe the Supreme Court has an ERISA procedural “problem”
ERISA Procedure Pop Quiz: Under which Federal Rule of Civil Procedure should ERISA disability claimants file dispositive motions for review?
In the Ninth Circuit, de novo ERISA cases are properly brought under Rule 52 and adjudicated as a “bench trial.” Procedures are streamlined by barring the introduction of new evidence in most ERISA disputes as unnecessary for a “full and fair review” of Plan decisions.
The Sixth Circuit reasons differently. It holds that an ERISA review “does not neatly fit under either Rule 52 or Rule 56, but is a specially fashioned rule designed to carry out Congress's intent under ERISA” and provides “suggestions” to the district courts on how to proceed.
This is Bowling. There are Rules: Here’s a fun Sixth Circuit concurrence in Tranbarger v. Lincoln Life, affirming denial of benefits because the claimant didn’t adequately show disability through her elimination period.
Concurring, Circuit Judge John Nalbandian muses that maybe the Federal Rules of Civil Procedure and the Supreme Court’s decision in United States v. Tsarnaev (the Boston Marathon bombers death penalty case) require major procedural demolition in the Sixth Circuit. (This was… not in the briefs.)
In Tsarnaev, the Supreme Court stated that appellate courts’ “supervisory authority” over trial court procedures cannot “conflict with or circumvent a constitutional provision or federal statute” or “conflict with or circumvent a Federal Rule.”
Judge Nalbandian sees the Sixth Circuit’s “specially fashioned rule” approach to ERISA as outside those bounds. (Fair enough, and the Ninth Circuit and others show more Rules-invoking alternatives). A few Ohio federal district courts have rejected the same argument in denying claimants’ motions for discovery, but it was not raised in Tranbarger.
SCOTUS, We Have a Problem?: “To make things even more complicated, I think the Supreme Court perhaps has a problem under Tsarnaev too,” Judge Nalbandian says.
He points to Firestone’s endorsement of a “highly deferential standard of review” to some Plans.
“In my mind, the problem . . . is that the Supreme Court is endorsing a quasi-administrative-law review regime for a ‘civil action’ under § 1132. In a broad sense, the Supreme Court's federal common law for ERISA is eschewing the Federal Rules of Civil and Appellate Procedure in favor of something like agency review—at least in cases where the plan administrator has discretionary authority to interpret the plan.”
🚨 Rule 1 Alert
“One might argue that the Court-created ERISA regime conflicts with Rule 1, which says that the Federal Rules of Civil Procedure govern all ‘civil actions.’ To the extent that Firestone establishes an administrative-law regime that blesses the arbitrary-and-capricious review of a plan administrator's decisions by both the district court and court of appeals, it seems that federal common law is in tension with our standard review of civil actions.”
No, We Do Not: This procedural “tension” exists only if Tsarnaev is “broadly construed,” Judge Nalbandian observes.
“[I]f Firestone is understood as a standard-of-review case only, it would appear to be generally consistent with Tsarnaev.”
Tsarnaev was a death penalty case rejecting a voir dire rule of the First Circuit. It’s hard to imagine the Supreme Court seeing its own interpretation of ERISA in the same light.