DONALD FESSENDEN, Plаintiff-Appellant, v. RELIANCE STANDARD LIFE INS. CO. and ORACLE USA, INC., GROUP LONG TERM DISABILITY PLAN, Defendants-Appellees.
No. 18-1346
United States Court of Appeals For the Seventh Circuit
ARGUED OCTOBER 30, 2018 — DECIDED JUNE 25, 2019
Before WOOD, Chief Judge, and SYKES and BARRETT, Circuit Judges.
Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 3:15-cv-00370 — Philip P. Simon,
BARRETT, Circuit Judge. Donald Fessenden applied for long-term disability benefits through his former employer‘s benefits plan. After the plan administrator, Reliance Standard Life Insurance Company, denied the claim, Fessenden submitted a request for review with additional evidence supporting it. When Reliance failed to issue a decision within the timeline mandated by the regulations governing the
We must decide whether Reliance‘s tardiness affects the standard of review in the district court. If the decision had been timely, the court would have applied an arbitrary and capricious standard because the plan gave Reliance the discretion to administer it. When a plan administrator cоmmits a procedural violation, however, it
We rejеct Reliance‘s argument because we hold that the “substantial compliance” exception does not apply to blown deadlines. An administrator may be able to “substantially comply” with other procedural requirements, but a deadline is a bright line. Because Reliance violated a hard-and-fast obligation, its late decision to deny Fessenden benefits is not entitled to deference.
I.
Fessenden worked as a Software Engineer Manager for Oracle USA until January 2008, when he stopped working due to fаtigue and severe, chronic migraine headaches. He applied for short-term disability benefits through Oracle‘s employee welfare benefits plan, a fully funded group insurance policy issued by Reliance. The request was approved, and Fessenden received benefits through May 11, 2008. Oracle terminated Fessenden shortly thereafter.
In March 2014, Fessenden submitted a claim to Reliance for long-term disability benefits dating back to his last day of work in 2008. His submission included medical records from 2006 to 2014, as well as statements frоm multiple doctors, all supporting his diagnosis of Chronic Fatigue Syndrome. Reliance denied his claim in an eleven-page letter stating the reasons for its decision and emphasizing the difficulties involved in reviewing a six-year-old claim. The letter told Fessenden how to request review of the decision and explained the timeline that would apply to Reliance‘s resolution of an appeal: Reliance would notify Fessenden in writing of its final decision within 45 days of the date that it received a request for review, unless special circumstances existed. In that event, Reliance would notify him of the final decision no later than 90 days from the date that it received the request. See
On April 24, 2015, Fessenden submitted his request for review, complete with additional medical records and physicians’ statements. But he sent it to an address different from the one included in the instructions, and Reliance did not confirm receipt of it until May 8. On June 17, Reliance notified Fessenden that it needed an additional 45 days to make its determination, and on August 27, it entered its final decision denying Fessenden‘s claim for long-term disability benefits. The parties disagree on when exactly Reliance‘s 90 days were up, but they all agree that Reliance made its final decision after the window had closed.1
Before the final decision issued, but after the deadline had passed, Fessenden sued Reliance and Oracle under
The absence of a final decision affects more than the timing of a suit—it also affects the standard of review. When a benefit plan gives the administrator discretionary authority to determine a claimant‘s eligibility for benefits, we typically review the denial of benefits under an arbitrary and capricious standard. See id. That standard reflects deference to the administrator‘s exercise of discretion. See id.; see also Conkright v. Frommert, 559 U.S. 506, 517-18 (2010). But when an administrator fails to render a final decision, there is no valid exercise of discretion to which the court can defer, and it decides de novo whether the insured is entitled to benefits. See Trs. of Cent. States, Se. & Sw. Areas Health and Welfare Fund v. State Farm Mut. Auto. Ins. Co., 17 F.3d 1081, 1083 (7th Cir. 1994) (“Deferential review is appropriate only when the trust instrument allows the trustee to interpret the instrument and when the trustee has in fact interpreted the instrument.” (emphasis added)); see also Gritzer v. CBS, Inc., 275 F.3d 291, 296 (3d Cir. 2002) (“Where a trustee fails to act or to exercise his or her discretion, de novo review is appropriate because the trustee has forfeited the privilege to apply his or her discretion; it is the trustee‘s analysis, not his or her right to use discretion or a mere arbitrary denial, to which a court should defer.“).
Here, however, Reliancе did issue a final decision—it was just late in coming. Fessenden filed his suit on August 19, and Reliance denied his request for review on August 27. At that point, Fessenden sought to clarify the standard that the district court would apply in reviewing his claim. He urged the district court to ignore Reliance‘s August 27 decision and review his claim and supporting evidence de novo. According to Fessenden, Reliance forfeited the benefit of deference when it blew the deadline.
Reliance, on the other hand, suggested that a late decision is different from a case in which an administrator altogether fails to render a decision. See, e.g., Gilbertson v. Allied Signal, Inc., 328 F.3d 625, 632 (10th Cir. 2003); Gritzer, 275 F.3d at 295-96. Reliance complied with its obligation to resolve Fessenden‘s appeal; it was just a little bit late in doing so. And because it was only a little bit late, Reliance insisted that the district court should excuse its untimeliness under the doctrine of “substantial compliance.” Under that doctrine, “a plan administrator who has violated a technical rule under ERISA … may be excused for the violation if the administrator has been substantially compliant with the rеquirements of ERISA.” Edwards, 639 F.3d at 361-62. In such cases, “a plan administrator, notwithstanding [its] error, is given the benefit of deferential review of the administrator‘s determination about a claim under the arbitrary and capricious standard …, rather than more stringent de novo review.” Id. at 362.
Fessenden argued that the timing regulation precluded application of the substantial compliance exception; that Reliance had not substantially complied with the deadline in any event; and that even if Reliance had substantially complied, its decisiоn
II.
Fessenden suggests that we abandon the substantial compliance exception altogether. The exception is judge-made. See Burns v. Orthotek, Inc. Employees’ Pension Plan & Tr., 657 F.3d 571, 575 (7th Cir. 2011) (“The concept of substantial compliance is part of the body of federal common law that the courts have developed for issues on which ERISA does not speak directly.” (quoting Davis v. Combes, 294 F.3d 931, 940 (7th Cir. 2002))). As a common-law doctrine, it cannot override regulations that ERISA has authorized the Department of Labor to adopt. And although both the statute and regulations were once silent about the effect of minor procedural violations on the standard of review, Fessenden claims that this changed in 2002, when an amendment adding a provision to specifically address “failure to establish and follow reasonable claims procedures” became effective:
In the case of the failure of a plan to establish or follow claims procedures consistent with the requirements of this section, a claimant shall be deemed to have exhausted the administrative remedies available under the plan and shall be entitled to pursue any available remedies under section 502(a) of the Act on the basis that the plan has failed to provide a reasonable claims procedure that would yield a decision on the merits of the claim.
Fessenden invokes Halo v. Yale Health Plan to support his interpretation. See 819 F.3d 42 (2d Cir. 2016). In Halo, the Second Circuit vacated a district court opinion that had applied deferential arbitrary and capricious review to claim denials that failed to strictly comply—but nevertheless substantially complied—with ERISA regulations governing both the substance and timing of such decisions. Id. at 45-47. The court emphasized that the 2002 ERISA regulations radically overhauled the earlier version, and it focused particularly on the addition of subsection (l). Id. at 49-57. Because that provision “admittedly says nothing about standards of review,” id. at 53, the court determined that it was “at least ambiguous with respect to the standard of review” that should be applied to decisions that fail to comply with proper claims procedures, id. at 54. It also considered the Department‘s interpretation of subsection (l), as reflected in the preamble,
While the court found the preamble instructive, the preamble did not resolve the question “whether a plan need only substantially comply with or must strictly adhere to the regulation to obtain the more deferential arbitrary and capricious standard of review.” Id. at 56. On this question, the court considered the Department of Labor‘s choices during the drafting of subsection (l) to be conclusive. See id. After the Department proposed adding subsection (l), “commentators representing employers and plans argued that this provision would impose unnecessarily harsh consequences on plans that substantially fulfill the requirements of the regulations, but fall short in minor respects.” Id. at 57 (citation omitted). Those commentators suggested replacing subsection (l) with a more flexible standard, but the Department rejected those suggestions and left the language as it was. See id. Thus, the court held, “[w]hatever the merits of applying the substantial compliance doctrine under the 1977 claims-procedure regulation, we conclude that the doctrine is flatly inconsistent with the [2002] regulation.” Id. at 56; see also Rasenack ex rel. Tribolet v. AIG Life Ins. Co., 585 F.3d 1311, 1316 (10th Cir. 2009) (“The 2002 amendments have, however, called into question the continuing validity of the substantial compliance test we have used to avoid creating a rule that would automatically permit de novo review for every violation of the deadlines.“).
Halo is inconsistent with our case law because we have applied the substantial compliance doctrine even since the 2002 regulations became effective. See, e.g., Edwards, 639 F.3d at 361-62; Ponsetti v. GE Pension Plan, 614 F.3d 684, 693 (7th Cir. 2010); Schneider v. Sentry Group Long Term Disability Plan, 422 F.3d 621, 626-29 (7th Cir. 2005); Kough v. Teamsters’ Local 301 Pension Plan, 437 F. App‘x 483, 486 (7th Cir. 2011).3 But we need not decide whether we have been wrong to do so because we can decide the case on a narrower ground: even if the substantial compliance doctrine remains valid, it does not apply to the violation of regulatory deadlines.
The 2002 regulations strike a delicate balance between the administrator‘s need for more time and the claimant‘s need for а timely decision. After all, the administrator‘s interests are not the only ones at stake; delaying payment of a claim imposes financial pressure on the claimant. That pressure is particularly acute for a disability claimant, who applies for disability benefits because she is unable to work and therefore unable to generate income. Given the seriousness of that burden, the new
When a claimant seeks review of an administratоr‘s denial of benefits, the administrator must review the claim “not later than” a specified period of time—45 days for disability claims and 60 days for others.
A court that excused even more administrative delay would upset the careful balance that the regulations strike between the competing interests of administrators and claimants.4 It would also run afoul of
The regulations are not the only reason that Reliance‘s argument fails—applying the substantial compliance doctrine to blown deadlines is incompatible with the doctrine itself. We have said that an administrator substantially complies with ERISA‘s requirements if, despite the regulatory violation, it provides sufficient process and information to permit “effective review” of its denial of benefits. See Schneider, 422 F.3d at 627-28 (explaining that the substantial compliance doctrine is subservient to ERISA‘s broad goal of ensuring that the process and explanation accompanying a denial of benefits “is adequate to ensure meaningful review of that denial.” (citation omitted)). For example, we might overlook an administrator‘s failure to strictly comply with the regulations governing the content of letters giving notice of benefit determinations so long as “the beneficiary [was] supplied with a statement of reasons that, under
Fessenden‘s case highlights the point. After Reliance‘s initial decision denying him benefits, Fessenden had the opportunity to submit additional evidence to Reliance to support his claim on review. See
Reliance‘s position that an administrator can change the standard of review with a late-breaking decision would therefore be a novel application of the substantial compliance doctrine. And permitting that novelty would undercut the benefits of exhaustion for claimants. A claimant is entitled to sue as soon as a claim is deemed exhausted because the administrator has failed to make a timely decision. But Reliance‘s рosition would leave such a claimant in an uncertain position. Should she wait a little bit longer just in case the administrator makes a decision? Or should she go ahead, attempting to frame her case in a way that is responsive to a decision that hasn‘t yet—but may still—come? Moreover, an administrator who has more time may get an unfair advantage: it could sandbag a claimant who sues at the point of exhaustion by issuing a decision tailored to combat her complaint. See Jebian v. Hewlett-Packard Co. Emp. Benefits Org. Income Prot. Plan, 349 F.3d 1098, 1104 (9th Cir. 2003) (“[A] contrary rule would allow claimants, who are entitled to sue once a claim had been ‘deemed denied,’ to be ‘sandbagged’ by a rationale the plan administrator adduces only after the suit has commenced.“); see also Fed. Power Comm. v. Texaco, Inc., 417 U.S. 380, 394-97 (1974) (acknowledging that the Commission had “great discretion” but explaining that failure to exercise that discretion at the appropriate time cannot be remedied with “post hoc rationalizations” (citation omitted)). In short, giving administrators a post-exhaustion grace period creates problems.
We acknowledge that some of our sister circuits have been willing to apply the substantial compliance exception to blown deadlines. See Gilbertson, 328 F.3d at 634-35
We disagree.5 As an initial matter, it is worth noting that many of the circuits currently applying the exception to missed deadlines have relied on precedent that predates the 2002 version of the regulations. The earlier version offered a much less nuanced approach to balancing the competing interests at stake, which subjected the goals of ERISA to different kinds of gamesmanship and perverse incentives. See Gilbertson, 328 F.3d 634-35; see id. at 629 n.3, 631 n.4. For example, because the old regulations did not include tolling provisions to stop the clock while the administrator was waiting on information from the claimant, “claimants might [have been] encouraged to delay a final decision by suggesting that they intend[ed] to produce additiоnal information, only to pull the plug and demand de novo review in federal court on the [last] day.” Id. at 635. The substantial compliance doctrine allowed courts the flexibility to police such gamesmanship and avoid results that would be “antithetical to the aims of ERISA.” Id. But the amendments reflected in the 2002 regulations address the incentives concern head-on by including more detailed and balanced provisions on timing and tolling. Thus, the oft-invoked rationale for applying the exception to missed deadlines no longer exists.
Yet whatever its merits under prior versions of the regulations, we hold that excusing late decisions is both foreclosed by the 2002 regulations and incompatible with the doctrine. It is also in significant tension with our own precedent. In Edwards v. Briggs & Stratton Retirement Plan, a claimant who missed a deadline argued that the substantial compliance exception should excuse her untimeliness. 639 F.3d at 361-62. We rejected her argument. At the outset, we observed that we had never applied the doctrine to excuse the mistakes of claimants, as opposеd to administrators. Id. at 362. But we also emphasized:
[I]t seems consistent neither with the policies underlying the requirement of exhaustion of administrative remedies in ERISA cases nor with judicial economy to import into the exhaustion requirement the substantial compliance doctrine. To so hold would render it effectively impossible for plan administrators to fix and enforce administrative deadlines while involving courts in detailed, case-by-case determinations as to whether a given claimant‘s failure to bring a timely appeal from a denial of benefits should be excused or not.
Id.; see also id. (“[T]he Plan has fixed a clear deadline of 180 days for filing administrative appeals from denials of benefits, and the Plan has the right to enforce that
* * *
Because the doctrine of substantial compliance does not apply to ERISA‘s regulatory deadlines, Fessenden‘s claim should have been reviewed de novo. We therefore VACATE the district сourt‘s summary judgment determination and REMAND for proceedings consistent with this opinion.