644 F. App'x 205

3rd Cir.

2016

Alan M. BECKNELL, individually and on behalf of all others similarly situated, Appellant v. SEVERANCE PAY PLAN OF JOHNSON & JOHNSON AND U.S. AFFILIATED COMPANIES; Pension Committee of Johnson & Johnson.

No. 15-2660

United States Court of Appeals, Third Circuit

March 21, 2016

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) March 18, 2016.

But the IJ was not required to credit Delekta‘s explanation for the discrepancy. Delekta argues that Ore “attempted” and failed (because Ore was not authorized under 8 C.F.R. §§ 239.1 and 1239.1) to serve the NTA on February 10, 2009, which accounts for why Delekta‘s inked fingerprint (in lieu of a signature) appears on the certificate of service. Delekta Br. 8, 22. According to Delekta, later service by Sullivan on February 24, 2009, never happened. Id. The IJ instead concluded that Sullivan did serve the NTA and that the preprinted date of service of February 10, 2009, was left as the result of a “scrivener‘s error.” App. 8. We have reviewed the record and conclude that the IJ‘s finding was not erroneous, as a “reasonable adjudicator would [not] be compelled to conclude to the contrary.” Chen, 434 F.3d at 216 (quoting 8 U.S.C. § 1252(b)(4)(B)) (quotation marks omitted).

Further, the exact date in February 2009 on which the NTA was served is ultimately irrelevant, both as to the validity of the removal proсeedings and as to Delekta‘s eligibility for cancellation of removal. Even if we accepted Delekta‘s contention that no service occurred on February 24, 2009 (a contention that the IJ was not compelled to accept), his argument would still fail because it relies on the faulty premise that 8 C.F.R. §§ 239.1 and 1239.1 rendered service by Ore improper. Ore, no less than Sullivan, was competent to serve the NTA. Whether the NTA was served on February 10 by Ore, February 24 by Sullivan, or both, the service was proper and took place prior to or concurrent with Delekta‘s detention, and well before the ten-year cutoff date of October 28, 2009, thereby barring Delekta from seeking cancellation of removal.

Finally, the record contains no evidence of a stipulation that the NTA was served on June 22, 2010—much less evidence that would have compelled the IJ to reach a different conclusion. Delekta claims that the transcript of June 22, 2010 hearing does not reflect the stipulation because it is incomplete. He also points to an unexplained handwritten notation “RHC 06/22/10” on the NTA, which he interprets as documentation of the stipulation, but there is no evidence that it means what Delekta claims. A.R. 312. Further, the transcript of the June 22, 2010 hearing that does exist, even if somehow incomplete, cuts strongly against Delekta‘s argument. Near the end of the hearing, Delekta concurred with the IJ‘s statement that the NTA was served in February 2009, which would make little sense if, in the same hearing, Delekta had stipulated or was planning to stipulate to June 22, 2010, as the date of service. Id. at 71, 73-74.

IV.

For the foregoing reasons, the petition for review will be denied.

Lawrence A. Katz, Esq., Coffey Kaye Myers & Olley, Bala Cynwyd, PA, Jordan M. Lewis, Esq., Kelley Uustal Law Firm, Fort Lauderdale, FL, for Appellant.

Francis X. Dee, Esq., Stephen F. Payerle, Esq., McElroy, Deutsch, Mulvaney & Carpenter, Newark, NJ, for Severance Pay Plan of Johnson & Johnson and U.S. Affiliated Companies; Pension Committee of Johnson & Johnson.

Before: CHAGARES, RESTREPO and VAN ANTWERPEN, Circuit Judges.

OPINION^*

VAN ANTWERPEN, Circuit Judge.

Appellant Alan M. Becknell appeals the final decision of the U.S. District Court for the District of New Jersey granting summary judgment in favor of Appellee Severance Pay Plan of Johnson & Johnson and Affiliated U.S. Companies (“J & J“). For the following reasons, we will affirm the decision of the District Court.

I. Background

A. Factual History

Viewing the record in a light most favorable to the nonmovant, Becknell, the facts are as follows. Becknell was employed as an engineer by Ethicon, Inc., a J & J subsidiary, beginning in August 1977. (App. 355). On October 16, 2007, Becknell qualified for and began to receive short-term disability benefits through a J & J sponsored plan. (Id. at 4). On April 15, 2008, when Becknell exhausted his short-term disability, he qualified for and began to receive long-term disability benefits through another J & J sponsored plan. (Id. at 355). Becknell continued to receive these benefits until they ran out in June 2009.¹ (Id. at 488). Becknell never returned tо work after going on leave in October 2007. (Id.).

More than three years after exhausting his long-term disability benefits, on October 25, 2012, Becknell sent a letter to J & J requesting an application for severance benefits. (Id. at 238). When Becknell did not receive a response, his counsel, Gregory Paul, sent a follow-up letter. (Id. at 381). William Wilkinson, Manager of Global Benefits for J & J, responded to Becknell‘s request in a February 4, 2013 letter which indicated that Becknell did not qualify for severance benefits. (Id. at 285-87). The letter stated that Becknell did not qualify because his termination did not result from one of the “Severance Events” enumerated in the Severance Pay Plan of Johnson & Johnson and U.S. Affiliated Companies (“Plan“). (Id. at 286). Moreover, the letter indicated that Becknell ceased to be eligible for benefits on April 15, 2008 when he began receiving long-term disability benefits because he was unable to work, with or without reasonable accommodation. (Id.). Through his counsel, Becknell appealed the denial in a letter sent via certified mail on March 4, 2013. (Id. at 387-93). A return receipt shows that the letter was received on March 8th. (Id. at 390). J & J maintаins that the Benefits Claims Committee (“BCC“), the group tasked with reviewing appeals, did not learn of Becknell‘s administrative appeal until it received the complaint filed in the instant action in August 2013. (Id. at 201, 298).²

In a letter sent on December 13, 2013, the BCC upheld “the determination that Mr. Becknell is not eligible for benefits under the Severance Pay Plan.”³ (Id. at 298-300). The BCC rejected Becknell‘s argument that the Plan language regarding “inability to meet the requirements of his position” ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍covers termination because an employee moves tо long-term disability, since “the inability has a parenthetical requirement.” (Id. at 300). The parenthetical states that the inability to meet the requirements of an employee‘s position is “determined by management of the U.S. Affiliated Company employing the Eligible Employee at the time of termination.” (Id.). Accordingly, the BCC determined that “employment ending at the end of the short-term disability period is not recognized by management as meeting this requirement.” (Id.).

B. Procedural History

Becknell commenced this putative class action by filing a complaint seeking severance benefits under the Employment Retirement Income Security Act of 1974 (“ERISA“), 29 U.S.C. § 1132(a)(1)(B). (App. 1-10). J & J moved to dismiss under Federal Rule of Civil Procedure 12(b)(6) because Becknell filed his initial claim with J & J after the Plan deadline of 180-days following the severance event. (Id. at 41-50). The District Court denied the motion, finding that J & J waived this defense because it did not raise it in the February 4, 2013 initial denial. (Id. at 75-87). J & J answered Becknell‘s complaint and moved for summary judgment. (Id. at 156-86). The District Court granted J & J‘s motion, rendering moot Becknell‘s previously submitted motion for class certification. (Id. at 485-500). This timely appeal followed. (Id. at 501-02).

C. Plan Provisions

The Plan is an ERISA welfare benefit plan. (Id. at 218). The governing documents state that the “sole purpose for payment of benefits under this Plan is to assist Participants when they are unemployed during the transition period when they are attempting to secure a new position.” (Id. at 205). The Plan enumerates four “Severance Events,” upon the occurrence of which, “[a]n Eligible Employee may be eligible for the benefits provided in [the Plan].”⁴ (Id. at 211). Of relevance to the instant action, one of the severance events is “an Eligible Employee‘s inability to meet the requirements of his or her position (as determined by management of the U.S. Affiliated Company employing the Eligible Employee at the time of termination).” (Id.).

The Plan affords the Plan Administrator, the Pension Committee of Johnson & Johnson, and its designees sole discretion to interpret the Plan and eligibility for benefits.⁵ (Id. at 206, 212, 214, 218-19). Article 4.1(b) of the Plan provides that “[a]n Eligible Employee is not eligible for the benefits provided in [the Plan] if his or her employment is terminated as a result of any one of [six enumerated] events.” (Id. at 211). Invoking the discretion of the Plan Administrator, one of the six enumerated events provides that an eligible employee is not eligible for benefits “for such other reasons as the Pension Committee, in its sole discretion, determines to be cause for denying or discontinuing benefits under this Plan.” (Id. at 212).

D. Administrative Claim and Appeal Process

To assert a claim for Plan benefits, “[a]n Eligible Employee (or his or her duly authorized representative) ... may file with the Claims Administrator a signed written Claim that is timely.” (Id. at 220). A claim is timely if it is filed “no later than one hundred-eighty (180) days after the date on which payments under the Plan were discontinued or reduced.” (Id.). If an initial claim is denied, an eligible emрloyee has sixty days to “submit a written Appeal to the [BCC] for review of the denial.” (Id.). The BCC then has sixty days from when the appeal is filed to “issue a written decision to the Eligible Employee,” which may be extended to 120-days under special circumstances. (Id. at 221). As the duly authorized delegates of the Plan Administrator, the Claims Administrator and the BCC have discretion to determine eligibility, as well as to interpret or construe the Plan. (Id. at 206, 214, 218-19).

Prior to Becknell‘s claim for severance benefits, the BCC twice addressed whether severance events, as defined by the Plan, include termination of employment by transition to long-term disability status. (Id. at 276-80, 282-83). In both instances, the BCC determined that the individual‘s employment was terminated when the employee‘s short-term disability ended, and he or she moved to long-term disability. (Id.). Mr. Wilkinson stated that he reviewed these prior BCC decisions in addressing Becknell‘s initial claim. (Id. at 200).

II. Discussion⁶

A. Standard of Review

We review a district court‘s determination of the appropriate standard to apply to review an ERISA plan administrator‘s decision de novo. Viera v. Life Ins. Co. of N. Am., 642 F.3d 407, 413 (3d Cir. 2011) (citing Grupo Protexa, S.A. v. All Am. Marine Slip, 20 F.3d 1224, 1231 (3d Cir. 1994)). We review a grant of summary judgment de novo, applying the same standard as the district court. Id. Accordingly, “[w]e may affirm the order when the moving party is entitled to judgment as a matter of law, with the facts reviewed in the light most favorable to the non-moving party.” Miller v. Am. Airlines, Inc., 632 F.3d 837, 844 (3d Cir. 2011) (alteration in original) (quoting Shook v. Avaya Inc., 625 F.3d 69, 72 (3d Cir. 2010)) (internal quotation marks omitted).

B. Analysis

Becknell asserts that the District Court erred in reviewing J & J‘s denial of his claim under the deferential abuse of discretion standard.⁷ (Appellant‘s Br. 11). The failure of the BCC to issue a written decision within the sixty days the Plan requires rendered his claim “deemed denied,” Becknell argues, which this Circuit reviews de novo. (Id. at 13-16). Under the de novo standard, Becknell claims he would have prevailed since ambiguity in an ERISA plan is construed in favor of the insured. (Id. at 20). Because the Plan language underlying the Plan Administrator‘s determination is unambiguous, and the Plan Administrator‘s interpretation was within its discretion and consistent with the purpose of the Plan, Becknell‘s claim fails under either standard of review.

1. Standard of Review of Benefit Decisions Under ERISA

Where an ERISA plan grants the plan administrator discretionary authority to determine eligibility ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍for benefits, we will uphold the administrator‘s decision unless it is arbitrary and capricious. Fleisher v. Standard Ins. Co., 679 F.3d 116, 120-21 (3d Cir. 2012) (quoting Orvosh v. Program of Grp. Ins. for Salaried Emps. of Volkswagen of Am., Inc., 222 F.3d 123, 129 (3d Cir. 2000)). We have held that “[a]n administrator‘s decision is arbitrary and ca-pricious if it is without reason, unsuрported by substantial evidence or erroneous as a matter of law.” Miller, 632 F.3d at 845 (quoting Abnathya v. Hoffmann-La Roche, Inc., 2 F.3d 40, 45 (3d Cir. 1993)) (internal quotation marks omitted). An interpretation that is “reasonably consistent with unambiguous plan language” is not arbitrary. Fleisher, 679 F.3d at 121 (quoting Bill Gray Enters., Inc. Emp. Health & Welfare Plan v. Gourley, 248 F.3d 206, 218 (3d Cir. 2001)) (internal quotation marks omitted).

The scope of review under the arbitrary and capricious standard is “narrow, and the court is not free to substitute its own judgment for that of the defendants in determining eligibility for plan benefits.” Doroshow v. Hartford Life & Accident Ins. Co., 574 F.3d 230, 233-34 (3d Cir. 2009) (quoting Abnathya, 2 F.3d at 45) (internal quotation marks omitted). This approach, often referred to as Firestone deference, provides that “a deferential standаrd of review [is] appropriate when a trustee exercises discretionary powers.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 111 (1989) (citing Restatement (Second) of Trusts § 187 (1959)). In the absence of the grant of discretionary authority to a plan administrator, courts are to review a plan administrator‘s decision de novo. Id. at 115.

In subsequent decisions, the U.S. Supreme Court has affirmed Firestone deference, while articulating how a grant of discretion to plan administrators impacts the standard of review. Addressing the different contexts and circumstances in which benefit determinations arise, in Metropolitan Life Insurance v. Glenn, 554 U.S. 105, 115-17 (2008), the Court clarified how lower courts should review claims in which a plan administrator has a potential conflict of interest. Glenn held that an administrator‘s potential conflict of interest does not change the standard of review from deferential to de novo. Rather, trust law requires courts to “take account of several different considerations[,] of which a conflict of interest is one.” Id. at 117. Interpreting Glenn, we “apply a deferential abuse of discretion standard of review across the board and consider any conflict of interest as one of several factors in considering whether the administrator or the fiduciary abused its discretion.” Estate of Schwing v. Lilly Health Plan, 562 F.3d 522, 525 (3d Cir. 2009) (citing Glenn, 554 U.S. at 115).

The Supreme Court again affirmed deferential review of decisions by administrators granted discretion to construe and interpret a plan and its terms in Conkright v. Frommert, 559 U.S. 506, 517 (2010). Conkright held that Firestone deference applies to a plan administrator‘s interpretation, despite a previous, related, unreasonable interpretation. Id. at 521-22. The Court underscored the importance of deference in ERISA cases, stating that “[i]f, as we held in Glenn, a systemic conflict of interest does not strip a plan administrator of deference ... it is difficult to see why a single honest mistake would require a different result.” Id. at 513 (citations omitted). Expressing concern that “unexpected and inaccurate plan interpretations ... might result from de novo judicial review,” the Court stated that deference is necessary to protect “the careful balancing on which ERISA is based” and to “serve[] the interest of uniformity.” Id. at 517 (internal quotation marks omitted).

We have reviewed a denial of benefits de novo where the plan administrator “never made any effort to analyze appellants’ claims[,] much less to advise them of what that analysis disclosed until after litigation was filed.” Gritzer v. CBS, Inc., 275 F.3d 291, 295 (3d Cir. 2002). In Gritzer v. CBS, after multiple inquiries regarding eligibility for pension plan benefits went unanswered, employees filed a claim letter with the plan administrator. Id. at 294. The administrator failed to issue a decision within the ninety days the plan required, and the employees filed suit. Id. Reviewing de novo, we upheld the denial based on unambiguous plan language which conferred discretion to the plan administrator аs to which benefits, if any, to extend to employees. Id. at 298-99. De novo review is appropriate, when, as in Gritzer, “there simply is no analysis or reasoning to which the Court may defer.” Id. at 296 (internal quotation marks omitted).

2. Severance Benefits at Issue

Reviewing the denial of Becknell‘s claim under Firestone deference, the District Court found the “Claim[s] Administrator‘s interpretation and application of the Severance Plan terms ... consistent with the goals of the Plan and not arbitrary and capricious.” (App. 495). The Court rejected Becknell‘s contention that Gritzer controls and mandates de novo review in light of the BCC‘s late decision. (Id. at 492-93). The District Court noted that the instant action and Gritzer are factually distinct; while the plan administrator failed to respond at all in Gritzer, here, the “untimely decision” “at the second level of appeal” followed the Claims Administrator‘s initial, timely decision, and “provid[ed] the reasons for denying Plaintiff‘s severance request.”⁸ (Id. at 492-93). The BCC‘s decision, while late, “provided reasons for the denial which mirrored the Claims Administrator‘s determination.” (Id. at 493).

It is undisputed by the parties that the Plan confers discretionary authority to the Plan Administrator and its delegates to determine eligibility for benefits. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍The only point of contention is the standard of review for the BCC‘s denial of Becknell‘s benefits claim. See (Appellant‘s Br. 10); (Appellee‘s Br. 14).

Relying primarily on our decision in Gritzer, Becknell characterizes his claim as “deemed denied” because of J & J‘s failure to issue a timely decision to his administrative appeal, as required by both ERISA regulations and the Plan. (Appellant‘s Br. 13) (citing 29 C.F.R. § 2560.503-1); see (App. 221). By issuing a decision outside the sixty-day timeline, Becknell asserts the Plan Administrator “was not acting within the discretion provided by the Plan.” (Appellant‘s Br. 14) (quoting LaAsmar v. Phelps Dodge Corp. Life, Accidental Death & Dismemberment & Dependent Life Ins. Plan, 605 F.3d 789, 799 (10th Cir. 2010) (internal quotation marks omitted)). Becknell contends that our statement in Gritzer, that where a plan administrator “fails to act or to exercise ... discretion, de novo review is appropriate,” applies. (Id. at 16) (quoting 275 F.3d at 296). Becknell maintains that in factually distinguishing the instant action from Gritzer, the District Court “misread” the latter case, since there is “no meaningful distinction between the facts.” (Appellant‘s Br. 17-18). Under de novo review, Becknell contends his claim would prevail because contra proferentem requires any ambiguity be construed against the drafter.⁹ (Id. at 20-21).

J & J counters that the BCC‘s delayed decision alone does not transform the standard of review from arbitrary and capricious to de novo, yet maintains that even under de novo review the Plan‘s interpretation should be upheld. (Appellee‘s Br. 12-14). J & J contends that Becknell‘s reliance on Gritzer is inapproрriate for the same factual distinction the District Court cited, as well as the existence of the Plan Administrator‘s two interpretations prior to Becknell‘s claim. (Id. at 25-31). Further, through Glenn and Conkright, J & J indicates that the Supreme Court has affirmed Firestone deference in the context of conflicts of interest and honest mistakes on the part of plan administrators. (Id. at 21-25). J & J also revisits the timeliness argument raised in its motion to dismiss, asserting that this Court, and many of our sister circuits, have declined to find waiver of plan defenses under ERISA as a matter of law. (Id. at 45-47).

The Plan Administrator‘s actions in the present case do not constitute a failure to exercise discretion, as warranted de novo review in our decision in Gritzer, 275 F.3d at 296. As the District Court aptly noted, the denial in the instant action is fundamentally different from that in Gritzer, in that Becknell‘s claim was not “deemed denied.”¹⁰ See (App. 492). Rather, Becknell‘s initial claim was timely denied, in a letter setting forth a decision consistent with prior interpretations of the Plan, on which J & J indicated it relied in rendering its decision. See (App. 276-79, 282-83, 285-87). Without a failure to exercise discretion, trust principles and the “careful balanc[e]” on which ERISA is built, require that we afford deference to a plan administrator‘s interpretation of the plan it is tasked with construing. See Conkright, 559 U.S. at 517.

Consistent with Glenn and Conkright, the BCC‘s late decision to Becknell‘s appeal is a factor we consider in determining whether the Plan Administrator abused its discretion. See id. at 513 (citing Glenn, 554 U.S. at 115-16). It appears, and Becknell offers no evidence to the contrary, that the BCC‘s late decision was a simple clerical oversight by J & J. See (App. 201-02). While this result is not ideal in terms of promoting the interests of eligible employees under the Plan, Becknell advances no reason that the BCC‘s delayed response prejudiced or otherwise harmed his appeal. Unlike the appellants in Gritzer, Becknell received a timely denial in response to his initial request for severance benefits. Compare Gritzer, 275 F.3d at 294, with (App. 285-87). Having already received a thorough response from the Claims Administrator, which detailed the reasons for his ineligibility, Becknell was apprised of the Plan Administrator‘s exercise of its discretion well before he instituted the present litigation.

The BCC‘s delay, while inexcusable in its detractiоn from efficiency and the “prompt enforcement of rights under a plan,” did not impair the interests Firestone deference promotes in fairness and uniformity of plan interpretations. See Conkright, 559 U.S. at 517. That the BCC‘s decision mirrors the Claims Administrator‘s denial, and relies on the same prior decisions interpreting the issue, underscores the consistency of the Plan Administrator‘s exercise of discretion in this matter. We do not summarily dismiss the possible impact of the BCC‘s tardiness in issuing its decision as both ERISA and the Plan afford two levels of review by the Plan Administrator. See 29 C.F.R. § 2560.503-1(f), (h); (App. 220-21). Considering this delay as one factor in our abuse of discretion review, we observe that Becknell has presented no new evidence or arguments in his appeal to challenge this interpretation, and merely restated that his termination was a severance event under the Plan. See (App. 387-88). To remove the deference to which this interpretation is afforded by trust principles, the governing documents, and Supreme Court precedent would undermine the balance оn which ERISA is founded. See Conkright, 559 U.S. at 517-18.

Looking to our sister circuits, we are satisfied that the BCC‘s late decision does not require departure from Firestone deference. Observing how circuit courts have approached this issue, the D.C. Circuit observed that “[a]lthough the Supreme Court has never suggested that the standard of review applied to ERISA administrators’ benefits determinations should change because of procedural irregularities ... [s]ome circuits substitute de novo review for deferential review only when the plan administratоr committed severe procedural violations.” James v. Int‘l Painters & Allied Trades Indus. Pension Plan, 738 F.3d 282, 283 (D.C. Cir. 2013) (per curiam) (citing cases from the Fifth, Eighth and Ninth Circuits, which apply de novo review in light of severe procedural violations). The D.C. Circuit noted that the Tenth Circuit‘s approach, which Becknell asks us to adopt, is an outlier in its strictness, “stripping a plan administrator of deferential review unless the irregularity is ‘inconsequential.‘” Id. (quoting LaAsmar, 605 F.3d at 800); see (Appellant‘s Reply Br. 2-4). In contrast, the Seventh Circuit has held that arbitrary and capricious review applies even in light of alleged procedural errors, which are factors to consider in determining if the plan administrator‘s interpretation was reasonable. Weitzenkamp v. Unum Life Ins. Co. of Am., 661 F.3d 323, 329 n. 3 (7th Cir. 2011). Applying Firestone deference here is consistent with the majority of our sister circuits who have weighed in on this issue, as the BCC‘s late decision does not rise to the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍level of a severe procedural violation. Becknell does not argue that the BCC‘s late decision was issued in bad faith or as the result of incompetence.

Even assuming, arguendo, that de novo review applies, we reach the same conclusion and affirm the Claims Administrator‘s and BCC‘s interpretation and application as consistent with the goals of the Plan. An ERISA plan should be construed as a contract, “looking to ‘the terms of the plan’ as well as to ‘other manifestations of the parties’ intent.‘” US Airways, Inc. v. McCutchen, 569 U.S. 88, 133 S.Ct. 1537, 1549 (2013) (quoting Firestone, 489 U.S. at 113). The critical question is whether Becknell‘s termination satisfied the requirements the Plan sets forth for severance benefits eligibility. See Gritzer, 275 F.3d at 297. As stated supra, the Plan‘s governing documents establish that its “sole purpose ... is to assist Participants when they are unemployed during the transition pеriod when they are attempting to secure a new position.” (App. 205). By the terms of J & J‘s disability plan, under which Becknell received long-term disability benefits, an employee must meet the definition of “totally disabled,” meaning that he or she is unable “to perform the Essential Functions of his or her Regular Occupation.” (Id. at 496). Long-term disability benefits extending beyond one-year require that the employee “must be unable to perform any job ... with or without reasonable accommodation.” (Id.) (alteration in original) (emрhasis omitted). By seeking an extension of these benefits, which J & J denied and Becknell appealed unsuccessfully to the Fifth Circuit, he asserted that he was “unable to perform any job ... with or without reasonable accommodation.” (Id.) (emphasis omitted). Consequently, by the very terms of the disability benefits he received and sought to continue receiving, Becknell was not “attempting to secure a new position,” and therefore benefits would not serve the Plan‘s purpose.

Becknell‘s contention that the rеsult would be different under de novo review because the doctrine of contra proferentem would apply is unavailing. (Appellant‘s Br. 20). Instead of offering an interpretation of the Plan under which he prevails, Becknell simply states that his claim would succeed since contra proferentem requires that “[a]ny ambiguity ... must ... be construed in favor of the insured.” (Id. at 20) (alteration in original) (quoting McDermott v. GMAC Mortg. Grp., LLC Comprehensive Welfare Benefits Plan, 389 Fed.Appx. 153, 156 (3d Cir. 2010)). Gritzer, the case on which Becknell bases much of his argument for de novo review, demonstrates why invoking contra proferentem here fails. In the instant action, as in Gritzer, it is undisputed that the Plan unambiguously provides the Plan Administrator discretion to interpret eligibility with respect to the provisions at issue. See Gritzer, 275 F.3d at 298, (App. 206, 212, 215, 218-19). Even reviewing de novo, in Gritzer we did not apply contra proferentem to interpret an unambiguous grant of discretion to interpret a plan in fаvor of the insured. See Gritzer, 275 F.3d at 298.¹¹

III. Conclusion

For the foregoing reasons, we will affirm the District Court‘s order granting summary judgment in favor of Appellees.

VAN ANTWERPEN

CIRCUIT JUDGE

Notes

Becknell applied for an extension of his long-term disability benefits, which J & J denied. (App. at 4). Becknell appealed the denial, which the Fifth Circuit affirmed, holding that the plan administrator‘s denial was not an abuse of discretion. (per curiam).

While the return receipt shows that an individual at J & J signed for the letter, Wilkinson stated that he did not recognize the initials. (Aрp. 201-02). Wilkinson asserts that he first received Becknell‘s March 4th appeal letter from Becknell‘s counsel on August 19, 2013 after the complaint was served. (Id. at 201).

J & J sent a letter to Becknell‘s counsel on October 16, 2013, indicating that it required an additional sixty days to issue a decision to Becknell, an extension from the standard sixty-day timeline the Plan provides. (Id. at 296). J & J began counting from when it received Becknell‘s appeal letter on August 19, 2013. (Id.). As a result, the December 11th denial of Becknell‘s administrative appeal was within the 120-dаy timeline from when J & J stated it received Becknell‘s March 4th letter.

The Plan defines an “Eligible Employee,” in relevant part, as “a regular, full-time or part-time salaried or hourly employee of a U.S. Affiliated Company.” (App. 206).

The Plan allows the Plan Administrator “[t]o delegate its authorities and discretion hereunder,” which include “the sole and complete discretion to construe and interpret the Plan, to decide all questions concerning [inter alia], eligibility for participation and entitlement to benefits.” (Id. at 218-19).

The District Court had jurisdiction pursuant to 28 U.S.C. § 1331 and 29 U.S.C. § 1132(e)(1). We have jurisdiction to review final orders of a district court pursuant to 28 U.S.C. § 1291.

We have stated that “[i]n the ERISA context, the arbitrary and capricious and abuse of discretion standards of review are essentially identical.” (alteration in original) (quoting ) (internal quotation marks omitted). “Accordingly, we use the phrases ‘abuse of discretion’ and ‘arbitrary and capricious’ interchangeably when referring to the deferential standard of review applicable in this case.” .

The Plan provides that “[t]he Claims Administrator shall notify the Eligible Employee of its decision within ninety (90) days after receiрt of a Claim or, if special circumstances exist, within one hundred-eighty (180) days of receipt of the Claim.” (App. 220). Becknell does not challenge the Claims Administrator‘s initial denial as late, and it was within the 180 days provided for at the upper end of the timeline. (Appellant‘s Br. 7-9). Accordingly, for the purposes of this analysis, we treat the denial as timely.

Becknell provides an argument as to why ERISA‘s substantial compliance rule, which “[t]he Trial Court didn‘t expressly mention and J & J didn‘t urge the Court to adopt” does not relax timeliness rеquirements. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍(Appellant‘s Br. 18). Since Becknell did not raise this argument below, J & J does not mention it on appeal, and there is no indication that the District Court considered it in rendering its decision, this issue is waived and we need not discuss it.

involved a previous version of the relevant ERISA regulation regarding the sixty-day deadline, which included the “deemed denied” language. 29 C.F.R. § 2560.503-1(h) (1999). This language is absent from the current version of the regulation. 29 C.F.R. § 2560.503-1(l) (2000).

We do not reach J & J‘s alternative argument that Becknell‘s claim fails because his initial application for benefits was untimely. We need not address this since the Plan Administrator‘s interpretation succeeds under either standard of review.

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7, does not constitute binding precedent.

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