*2 advised Barham apply for Social Securi- BYE, BEAM, Before GRUENDER, ty disability benefits, presumably because Circuit Judges. Reliance was contractually entitled to an offset for any security social benefits Bar- BYE, Circuit Judge. ham did, received. fact, Barham receive Social Security disability benefits. On Barbara Barham filed this action in September 7, 2000, Reliance notified Bar- trict court challenging Reliance Standard it ham had a copy received of the Social Life (Reliance’s) Company’s Insurance de- Security Award certificate and told Bar- nial of her claim for long-term disability ham she owed Reliance $5280 benefits under a plan governed by the amount Reliance overpaid her. Employment Retirement Income Security Act (ERISA), of 1974 §§ U.S.C. 1001- July 16, 2001, On Reliance notified Bar- 1461. Applying an abuse-of-discretion ham it would review her claim to deter- standard, the district court concluded the mine whether eligible she was for disabili- denial was supported by ty substantial evi- beyond twenty-four initial dence. Because included in period. month completed Barham disabili- administrative record did ty Reli- questionnaires for Reliance on ance discretion to determine eligibility 20, 2001, July and March 25, 2002. On benefits, the district court should have September 2002, at request, Reliance’s used a de novo standard. We therefore Barham also participated in a one-day pen- under (FCE) “declarfing] claim file” Evaluation Capacity Functional is true foregoing that the alty perjury Accord- nurse. registered aby performed FCE, Included at 123-24. App. correct.” completed who the nurse ing to was a seden- performing capable within Barham 30, 2003, Dr. Bar- under which group policy copy June work. On tary level *3 and Nota- findings for benefits. the FCE made her claim to ham responded Archer per- capable not Reliance did bly, policy Barham was the opined plan work because determine sedentary interpret level the or even to forming cretion spina to her by pain due for eligibility restricted benefits. she was bifida. counsel Reliance’s April On Barham’s terminating initially After of review the standard brief on its filed benefits, Reliance long-term for claim ERISA to the district court’s pursuant gastroen- a Hauptman, Dr. William asked the argued Reliance Scheduling Order. review paper a to terologist, conduct was abuse of review appropriate gastroen- to the According file. Barham’s policy granted the discretion because from impaired was Barham terologist, interpret the to discretion Reliance assess- sedentary work. This performing As eligibility determine benefits. however, as preliminary, appeared ment “policy to counsel cited Reliance’s support, impor- “it will be Hauptman concluded Dr. 6.0, attached as of which copy a page medi- to obtain ” evaluation for further tant “A” was at 49. Exhibit App. A.’ Exhibit providers all health care records cal an affidavit to brief without attached the any men- physicians and including primary authenticity accuracy. Un- or verifying its at 473. App. providers.” health care tal Hardy included with the policy the like July Nonetheless, letter in a dated Exhibit affidavit, attached policy decision its earlier upheld Rebanee following provisions: included the “A” disability long-term terminate to Life Insurance Com- Reliance Standard the FCE’s determination benefits based claims review as the pany shall serve sedentary performing capable was she insurance fiduciary respect with conducted paper review and the work level The review Plan. claims policy Hauptman. by Dr. authority discretionary fiduciary has brought Barham September In insurance Plan and the interpret in federal against Reliance suit eligibility determine policy In denial. benefits challenging the court by the claims Decisions benefits. entered 2003, the district court December final and complete, fiduciary shall requiring the Scheduling Order an ERISA parties. binding on all the administra- copy to submit parties App. at Appellee’s addressing to file briefs record and tive The of review. appropriate repre- “A” and Exhibit upon Based then decide it would indicated counsel’s in Reliance’s made sentations upon the administrative based case concluded brief, the district parties’ briefs. authority to discretionary gave and con- for benefits eligibility Hardy, a determine 4, 2004, Thomas February On deny decision reviewed sequently to make employee “authorized stan- an abuse-of-discretion under company,” of behalf Declaration stan- abuse-of-discretion dard. Under the district an affidavit filed Reli- court concluded dard, copy and accurate “complete attaching ance’s denial supported by substantial benefits. The which purportedly evidence. granted this authority was not the same as the policy Reliance as the com- Barham timely filed a appeal with this plete and correct copy and included within court contending, in part, the district court record, however, administrative but an applied the wrong standard of review. In copy unverified attached to Reliance’s brief support of that argument, Barham primar- any without supporting affidavit. ily argued procedural serious irregularities occurred during the pro- Reliance contends Barham waived ceedings which triggered should have right to rely upon the administrative less deferential standard of review. For record because she waited until her reply the first time in reply brief, her however, brief to note the discrepancy between the *4 Barham supplemented her standard-of-re- policies. two As a general rule, we will not argument view by noting policy the con- arguments consider raised for the first in tained the administrative record did not time in reply Akeyo O’Hanlon, brief. v. any contain language granting 370, (8th 75 F.3d 374 n. 2 We discretionary authority to interpret the are not precluded so, doing however, policy or make eligibility determinations. particularly where, here, argument the
raised in
reply
the
brief supplements an
II
argument
in
raised
party’s
initial brief.
Head,
See United States v.
628,
340 F.3d
We have plenary review over the district
(8th
630 4
Cir.2003);
n.
see also Parmenter
court’s determination of
appropriate
v.
Deposit
Fed.
Ins. Corp.,
925 F.2d
standard of
to apply
review
ERISA
(8th Cir.1991)
1093-94
(considering an ar
plan’s denial of benefits. See Tillery v.
gument raised for the first time
reply
in a
Enclosures, Inc.,
280 F.3d
Hoffman
brief where “the
justice”
interests of
re
(8th Cir.2002)
1196
(applying de novo re-
quired a remand to the district court to
view).
address
question raised);
Stafford
“[A]
...
should
Co.,
Ford
Motor
790 F.2d
706
be reviewed under a de novo standard Cir.1986) (“The matter of
questions
what
unless the benefit plan grants the adminis may be
up
taken
and resolved for the first
trator or fiduciary discretionary authority
time on appeal is
left primarily
one
to the
eligibility
determine
for benefits or to
discretion of the courts of appeal, to be
construe the
plan.”
terms of the
Id. at
exercised on the facts of the individual
1196-97 (citing Firestone Tire & Rubber
cases.”) (quoting Singleton Wulff,
Bruch,
Co. v.
101, 115,
489 U.S.
109 S.Ct.
106, 121,
U.S.
96 S.Ct.
49 L.Ed.2d
(1989)).
The district court applied an abuse-of- which Reliance’s presented counsel the dis- discretion standard because Reliance’s trict court with Exhibit “A”—a policy that counsel represented the policy gave Reli- differed very in a material respect from ance discretion to determine eligibility for the one within the administrative record. record or the district the administrative circumstances, if Exhibit even Under court. supporting awith had been submitted “A” inappropriate been
affidavit, have it would Ill it unless to consider district satisfactory explana- gave also instruc- and remand with reverse Hardy contradiction with for its apply a de court to tions for Tires, Inc. Cornfield, See affidavit. deni- to Reliance’s novo 1361, 1364- Corp., 719 Tire Michelin long- claim for al Barbara Cir.1983) courts district (indicating disability benefits. term inherently contradicto- not consider BEAM, dissenting. party Judge, the same Circuit affidavits submitted ry proceedings unless judgment summary remand- case must be agree IWhile this inconsistency).1 explains party court, disagree to the district ed of review determining is no There evidence central apply. The ex contradicting or appellate or by the court which upon issue seized affidavit, which Hardy plaining Plan plan governs: of the benefit version accuracy of authenticity record, which A, the administrative *5 record. the administrative within contained review, or novo a de necessitate would develop an to ample time B, language granting contains Plan which district and in the record accurate permit and discretion v. United Von Kahl to do so. failed Cf. B, Plan which review. abuse-of-discretion Cir.2001) (8th 783, States, 788 242 F.3d used, in the was not the district supplement to party a (declining allow However, whether record. administrative ample time there was record where record administrative B in the Plan was any gaps and record develop an accurate of of the dispositive be not should of a lack likely due record were in the plan inquiry is which The correct review. circumstances, we Under diligence). time of in effect was this remand appropriate to it is believe all, this court quest of After claim. district with instructions case truth, a for the a search be should novo, see de review the benefits for error. search Co., F.3d 344 Ins. Cigna McKeehan Life that the administra assumes Cir.2003) The court (8th (concluding de novo 789, 793 plan. must benefit record contain tive in the first conducted be should make an sides should that both agree I where record district court by the instance com before complete record accurate opinions and conflicting medical includes Nat'l Vega v. court. federal ing to consistent evidence), novo review Life as de 287, n. 13 Servs., Inc., 302 F.3d Ins. 188 in as accurate only with however, case, benefits."). termining In plan need not a agree the dissent 1. by accurate plan verified as authentic to be consid record in administrative be in the administrative included Farley Reliance record, See Ark. by court. ered conflicting plan was never Shield, F.3d 776 Blue Cross & 147 Blue court. note, however, put appropriately before ("We 1998) that 4 Cir. n. Thus, agree we while purpose conducting discovery for limited admin- outside the evidence able to review appropriate standard determining the ap- plan which to determine record general pro istrative afoul run review does not applies or that rule we do not believe plies, admitting outside evidence hibition case. governs in this purpose of de- record administrative (5th Cir.1999). When courts review de apply review to to Barham’s nial of benefits under an abuse-of-disere Accordingly, claim. I respectfully dissent. standard, only the evidence administrative record is considered. Sa Techs., Inc.,
hulka v. Lucent 206 F.3d (8th Cir.2000). Even under a de novo
review, the introduction documentation record is discour .in
aged good unless cause is shown. Ferrari Ass’n, v. Teachers Annuity Ins. and WILSON, Hazel L. Plaintiff-Appellee, Cir.2002). However, majority the vast of .case law addresses only NORTHCUTT, participant Individually whether a Steve can add capacity documentation Mayor to the record his official which was not of the See, City Malvern, before Arkansas, al., the administrator. e.g., id. et De (discussing Appellants. expand not to .decision fendants — to include financial documentation offered City Malvern, Arkansas, Defendant. by plan participant). No. 05-1231.
The issue of whether must be present in the administrative record has United States of Appeals, Court squarely not been addressed this court. Eighth Circuit. agree Circuit, with the Sixth which has addressed this Submitted: issue and Oct. 2005. determined that the plan need present not be in the admin Filed: March *6 istrative record to be considered Rehearing and Rehearing En Banc district court. Bass v. Employee TRW 3,May Denied Trust, Fed.Appx. Welfare Benefits (6th Cir.2004) (unpublished). The rea limiting sons for the record before to provide are for expeditious
review and to prevent the district courts administrators. becoming Foods, Inc.,
Brown v. Seitz Disability Ben.
Plan,
Refusing to admit a benefit goals. So, either my
advance
view, the district court should be able to
review evidence outside
record to determine which plan applies.
The benefit plan which con-
tends is the correct one was
administrative record and adopted by
the district court from Reliance’s brief. simply
Because this is evidentiary
pute, we remand
court to determine which plan and which