Judith Perlman v. Swiss Bank Corporation Comprehensive Disability Protection Plan

and POSNER, Judge, Chief Before WOOD, P. DIANE and EASTERBROOK Judges. Circuit EASTERBROOK, Judge. Circuit Ju- employed Corporation Bank Swiss until lawyer Chicago as Perlman dith Ever quit. she when September been Bank have since, and Swiss Perlman to dis- is entitled she contesting whether med- serious Perlman ability benefits. accident An automobile problems. ical sys- digestive her trauma caused problems, additional to some led tem and did Perlman headaches. migraine and accident year after for a work pe- during benefits disability received leaves shorter took riod. She disability benefits. receiving 1992, again a psychiatrist sees regularly coping assistance in with the stress caused duration of disability.. F.Supp. (N.D.Ill.1997). 726, 731 medical n. the accident her conditions. September Septem- But 1992 and between stating After that unum’s decision was worked full time. ber she Swiss “arbitrary capricious” because failed work, Bank with her was satisfied believes to any obtain the of assistance outside mentally physically that she is and able to detailed, experts, perform and did not a continue, quit that she and contends study job duties, of Perlman’s the judge reasons, personal rather than medical seiz- directed unum ap- to reconsider Perlman’s ing opportunity an to leave the labor force plication in light analysis in its to countryside. and move the Wisconsin opinion. Both sides have appealed—unum because it believes its decision should Company unum Life Insurance adminis- sustained, have been Perlman she because disability plan, ters Bank’s Swiss “wel- believes that the court should have or- plan” fare benefit covered ERISA. For pay dered unum to without giving benefits disability UNum acts solely short-term it an opportunity compile to a better rec- administrator; payment an comes from ord. A second set of cross-appeals con- Bank’s accounts. af- disability Swiss For attorneys’ cerns fees. The district court ter 26 the first weeks unum both admin- held that Perlman is the prevailing- party insurer; it pays any istrator and award. $44,020 and ordered pay unum to under Immediately quitting, ap- after Perlman F.Supp. 1132(g)(1). U.S.C. plied for short-term After benefits. seek- (N.D.I11.1998). unum now contends that an ing and obtaining additional medical rec- impermissible award of fees is until after ords, unum said no: its letter states that court has directed the erisa to the medical conditions documented in the benefits; pay $44,- Perlman contends that provided information Perlman had “do not (it 000 is too low only third her of prevent you performing from the material request). occupation.” of your ap- duties Appellate jurisdiction first, is the pealed higher to a of staff level unum’s last, potentially and we need issue was unsuccessful. A letter in July 1995 consider. The district court entered explained: “We a change do not see judgment that reads full: “IT IS OR your medical condition which necessitated DERED AND ADJUDGED both you stop work. The do not records parties’s motions for summary judgment impairment show a level of which would are denied. The case is remanded to unum or limit you performing restrict for a new determination in with accordance your regular job given duties that you Order, Opinion Memorandum and have worked with conditions these is, therefore, judgment according entered past.” ly.” “IT IS ORDERED AND AD 502(a)(1)(B) Section ... judgment U.S.C. JUDGED is ... en [that] ERISA, 1132(a)(1)(B), helpful. judgment makes decisions of this tered” is A not must be (which not) kind reviewable in federal and Perl- self-contained this and speci man asked the district judge fy to direct the relief to the prevailing party which not). (which pay unum long-term both short- and is entitled does See Mas disability sey Ferguson The court Varity Corp. benefits. concluded Division (7th Cir.1995); Gurley, was authorized consider both 51 F.3d 102 Ameri claims, long-term though Exchange short- and even can Interinsurance v. Occiden Co., Perlman had tal sought Casualty short-term bene- Fire & 835 F.2d 157 Cir.1987). more, impossible fits from because award short- What is it is unum, (as term benefits receipt opposed is a condition to see how “case” to a “claim benefits”) benefits; long-term parties disagree may returned to be unum. disabled, shortcomings about whether Perlman is not Litigants flag should decision, then the district court’s they can so so that judge, for the district A more avoided. cannot be called final. jurisdictional issues decision corrected cases, recent to other ninth circuit called parties Like recent decision of the jurisdictional ignored the litigants persuasive, these Wil- Petralia’s assessment helping than avoid rather problems Co., Insurance liamson v. unum Life Casualty Co. cure them. Continental See (9th Cir.1998), be- though Excavating Wrecking & v. Anderson was not judgment in Williamson cause the (7th Cir.1999); 512, 515-16 189 F.3d (the district court by any final standard Controls, Washington, Inc. Health Cost issues but had disputed a few had resolved (7th Cir.1999). relief) Snow was not awarded appeals A fourth court of overruled. the side contends Neither a taking conflict stand. noticed the without enforced, to be is uncertain judgment too 105, 137 F.3d 108 Corp., Xerox v. easy enough to from Crocco however, it is see (2d Cir.1998). Now it is our turn. judge the had in mind. opinion the what obviously court does Because the district justification remand to an If the for a orders, further here plan to enter plan’s administrator is that the ERisa Casualty and Health as in Continental as the the same kind decisions makes do not the formal defects Cost Controls Administration, then it Security is Social Compare Otis prevent appellate review. jurisdictional conse- important to know the Cir.1994) (7th (en 29 F.3d 1159 Chicago, v. Security of a a Social quences remand banc), Digital with Buck v. U.S. Commu 405(g) § 42 Two sentences of U.S.C. case. (7th 710, nications, Inc., 141 Cir. F.3d situations. authorize remand different 1998). relief, a But the nature authorizes the district court Sentence four Although it may do so. remand to unum, affirming, modifying, “a judgment to enter a original matter that is doubtful as of the Commis- reversing the decision claims, may “remand” ERisa district court Security, with or without sioner Social agencies, we have as if to administrative a rehearing.” the for remanding cause may held that courts treat welfare benefit the court to six allows remand Sentence plans just judges like administrative law evidence, receipt but with- for the of new Security the disabili implementing Social entering judgment determining a the out Quinn ty-benefits program. v. Blue Cross previously ren- propriety of the decision Ass’n, 472, 161 F.3d 476-78 & Blue Shield Finkelstein, v. 496 U.S. dered. Sullivan (7th Kmart, Cir.1998); v. Schleibaum 2658, Cir.1998). 110 L.Ed.2d 563 (7th That makes (1990), remand, a holds that sentence-four a necessary whether re to determine depends finding a of error in the which appealable as a final decision un mand decision, un- appealable § 1291. Commissioner’s der 28 U.S.C. decision, final while a der a “yes” appeals has answered One court of appeal- remand is not final or sentence-six v. In analysis. without Snow Standard has taken adjudication because no able Cir. surance Forney Apfel, 524 U.S. place. See also 1996). “no,” Two have answered courts 141 L.Ed.2d 269 118 S.Ct. a analogizing remand to district court’s (1998). remand concludes A sentence-four trial. case a new setting court; any litigation in district v. AT&T Global So Petralia Information the Commissioner’s decision protest about (1st Cir.1997); Co., 114 F.3d 352 lutions a suit. But a requires on remand new Corp., Eckerd 55 F.3d Shannon Jack a yo-yo; works like Cir.1995). sentence-six remand thought Petralia enlarged, the record has been once parties may implicit in remand finally whether the district decides filing court without return to is tenable. administrative decision plan’s fresh complaint following new to plan Remands administrators Before concluding that ERisa remands just serve the same functions as remands Security remands, like Social Commissioner, must implies which the same consider second possibility: that an jurisdictional remand is purposes treatment most similar to a remand ERisa to an arbitrator. arbitrator, 1291. If the Like an district court finds that the administrator an erisa private decision was is a judg erroneous enters a dispute resolver. It may therefore up ment be in- wrapping litigation, that deci explore structive to whether an order de- appealable sion is if extra-judicial even clining enforce an award but directing ahead; proceedings he the court additional proceedings appeal- arbitral postpones adjudication until after addition able. al analyzed, evidence has been then it has

not made final The Supreme decision. Our court first considered that part Court drew this line in Finkelstein Rhoades, Much, Shearson Loeb Inc. v. because it was concerned that it would Cir.1985). 754 F.2d 773 Recognizing impossible otherwise for the Commis that the circuits then were divided on the sioner to obtain review an adverse deci question, firmly we came down on the side by sion a district court. If the court di of appellate jurisdiction. no Contempora rects the to apply specific Commissioner a neously Much, with another circuit rule, evidence, accept specific or and the adopted view, a contrary United Steel Commissioner carries out that directive workers Adbill Management Corp., 754 benefits, and 138, (3d awards may Cir.1985) case never F.2d 140 & n. 1 (equat court, may say ing return to the same a to remand an order requiring arbi unum about remand ordered tration place), here. Petralia the first but we reaffirm that assumed ed Much in case bound to come United Steelworkers v. Aurora back to the Equipment but as ex 830 F.2d 753 Cir. 1987). ample shows it need not Much and do so. At all Aurora Equipment give events, a common the Court reason for their added in an conclusion: Forney, that remands to appeal § under arbitrators depend does not should be treated just like who won remands to agen the district court or administrative whether cies, which at the time of likely the remand Much and prevent to Auro renewed ra Equipment litigation. widely were to thought The rule be is mechanical: sen all years non-final. Three after tence-four Aurora appealable. remands are For- Equipment, premise that was undermined ney holds that the claimant as entitled Finkelstein, by Forney completed appeal to a remand as is the Commission process making of administrative re Forney er. that contended she was enti generally appealable. mands So if we ad to victory tled immediate without the need here to the rationale Much and Aurora remand, a Supreme and the Court held Equipment, comparison of erisa re Forney present that could this claim to the to mands arbitration remands does not appeals court of before the remand oc direction; lead in a new right leads back curred. occupies Forney’s posi to the analogy, administrative-law and thus tion, occupies and unum the Commission (today) appellate jurisdiction. to position Finkelstein, er’s for the district court’s remand is finding based on a Neither Much nor Aurora Equipment four) (parallel error to sentence rather Finkelstein, has been cited since but for a (sentence six). than new evidence Just as reason that does not a change reflect in Finkelstein Forney, the district heart about the classification of arbitral court entered a Rule judgment indicat § Congress remands under 1291. In 1988 ing that the deny decision to benefits was changed appeals the rules for from deci- error, and that the court with is done concerning sions arbitration. Under 9 16(b) the case. § any U.S.C. order a district tells that ob- Supreme Court us parties to arbitrate directing the 16(a)(1)(E) provides taining § a sentence-four remand makes but non-appealable, without re- correcting, “prevailing party” or “modifying, claimant order may appealed happens im on the remand. gard an to what vacating award” 300-02, 292, as appeals routinely Schaefer, 509 mediately. Shalala v. U.S. Courts discussion, (1993); an sume, L.Ed.2d 239 though without S.Ct. Sullivan, but an arbitrator’s decision vacating Melkonyan v. U.S. order ap- (1991); arbitration is remanding for additional 115 L.Ed.2d 78 Sulli- 16(a)(1)(E), Hudson, § rather than pealable under 109 S.Ct. van 16(b). See, e.g., (1989). under non-appealable In 104 L.Ed.2d 941 Schaefer Corp. v. Auto Braking Systems attorneys’ linked the fees the Court Aircraft Workers, F.3d 155 Cir. mobile together, issues so that appealability 1996). supports Equipment Aurora triggers an entitlement appealable order not be that a remand should (and conclusion prompt applica- fees need to make arbitrate, original like an them). treated have held tion for The Court could circuit, too, enter presumably will so this disability a final decision on the claim 16(a)(1)(E) when jurisdiction tain under status, prevailing-party is essential think of comes. Thus whether we the time appealability, negated which would have equivalent as remands arbitrators not. Thus the issues do did fee (the agencies rationale remands remand as non-final justify treating the or Equipment) and Aurora Much order; Supreme it is the Court’s decision awards, would vacating the remands ders per- final to deem remands that creates further today appealable, which offers be plexing fee but their existence problems, per for the that 1291 support conclusion ap- justify departing from the does not to admin appeal mits remand an ERisa Finkelstein, Forney, in proach marked out istrator. All Schaefer, Melkonyan, and Hudson. cross-appeals within four of the our from remand orders Permitting appeals jurisdiction. only it sets carry does a cost—not because if appeals the deci- stage successive contested, but on remand should merits, sion we turning Before to the attorneys’ it fees also because causes searching judicial how review must decide prematurely. dispute to come to a head plan is to be. Decisions of ERisa adminis How one to tell whether is a de re presumptively trators receive novo “prevailing party” entitled to fees until view, v. see Firestone Tire & Rubber Co. tempting know the final outcome? It is Bruch, 101, 948, 103 109 489 U.S. S.Ct. as simply treat non-final the remand (1989), plan if the L.Ed.2d 80 but estab until postpone the fee discretionary authority lishes then review outcome is known. 115, at will be deferential. Id. lan 948. The district court concluded that however, again, remands are Once ERisa guage in Swiss Bank’s and unum’s re functionally Security identical to Social in ad policy gave enough discretion parties obtain fees Prevailing unum mands. re ministering benefits that deferential position opponent’s ERisa cases 729, at F.Supp. is called for. 979 view substantially Equal Ac justified; not Inc., Caterpillar, relying on Patterson v. Act, 2412, ap cess Justice 28 U.S.C. Cir.1995). But the Security plies the same standard Social put then a thumb on scale Rudoy & cases. See Bittner v. Sadoff its Industries, against reasoning that self-inter 728 F.2d Cir. 829-31 unum, cre long-run as an benefits 1984); Chicago est insurer v. Continental Can Co. Fund, potential making at ated least a bias 921 F.2d Truck Drivers Pension (7th Cir.1990). A series of decisions decisions. Although workers, administrator’s which they will be unable to ifdo self-interest does not affect the standard of promised paid. benefits are not We have review, Firestone calls it a “factor” to no reason to think that unum’s benefits “weigh” evaluating the decision. 489 staff is any “partial” more against appli- S.Ct. 948. How much cants than are federal judges when decid- weigh? does it Judge Boudin recently ing income-tax cases. that it weigh concluded can’t very much A problem further impedes treating judicial exceeding

without capacity to unum’s self-interest as a strike against its tailor standards Judges review. under may decision: it not have stake in the stand deferential and non-deferential re decision. Although payment insures the view, but intermediate variations blur into long-term benefits, the record does one another without promoting under not reveal the terms on which the insur- standing adjudication. consistent Doe ance firms, was written. many For large v. Travelers Insurance 167 F.3d health disability insurance on their (1st Cir.1999). Panels have occasion ' labor is retrospectively forces rated. This suggested conflict should lead to means that the employer agrees to reim- judicial bite,” review with “more see Cho burse the insurer for all outlays, plus a jnacki Georgia-Pacific Corp., 108 F.3d loading charge and administration fee. In- Cir.1997); Van Boxel workers, surance is valuable to Trust, who Employees’ JournalCo. know Pension 1048, 1052-53 (7th even if the employer Cir.1987), encounters finan- but have cial cease; never come with difficulties their up operational benefits will not defini tion of as specification long “more bite” or the employer continues in business, appropriate circumstances for bears the full mastication. economic cost of Perhaps this its fringe-benefit shows promises. review is Perlman has perform easier to than to probe If asked articulate. us the terms on which the first-level decisionmaker has an written, inter unum’s insurance was or to inves- outcome, potential est for bias is tigate compensation promotion op- bound to affect the mind set of the review portunities staff, just of the benefits ing court. Corp., Gallo Amoco 102 F.3d determine whether to “weigh” an addition- 918, (7th Cir.1996). But it is unsound al “factor” in judicial calculus re- for the judiciary automatically impute view. Thus we have no reason to think position administrator’s to the that the actual decisionmakers at unum person who decides on its behalf. approached their any differently task than do the at decisionmakers the Social Securi-

“Whenthe administrator large corpo- is a ty Administration, ration, ordinarily interest, firm deferen- has a financial but tial review the day. is order of the any award one case will have trivial effect its operating results. Cor- It from follows

porations conclusion act through agents, and these that review of unum’s decision is deferen agents usually lack any stake out- tial that permit the district court Getting come. erred employees to act as if ting discovery into unum’s decision-making. shareholders’ welfare were their own is a There daunting challenge should not have been any corporation. any inquiry processes staff, into the thought See Candice Prendergast, The Provision unum’s Firms, the training Incentives in of those who J. Econ. Lit. 7 considered Perl- (1999). claim, Nothing general our man’s and in who suggests record said what that unum even Large has tried. whom within of which busi- unum—all Perl- nesses as Swiss Bank want man was explore length to main- allowed to at by a reputation tain dealing depositions fair with their interrogatories, and on employees. They fringe offer benefits some which the district judge relied. disability plans such as good to attract Deferential an review of administrative de- question we reach At last on the administrative review cisión means dis ground in the occupied central that parties take have allowed We record. arbitrary make an court: did unum trict new evidence present discovery and Both Perlman capricious decision? or judicial deci subject to de novo erisa cases treat central and the district Corp., sions, Casey v. Uddeholm see correctly under issue whether unum Cir.1994); (7th 1094, n. 4 1098-99 & de in relation to the stood her abilities accord, Reliance Stan Kinstler v. First If Bank had job. of her Swiss mands (2d Co., 181 F.3d 243 Insurance dard Life performance her told Perlman that Cir.1999), is where the but never indeed unsatisfactory, then these would by sub supported is whether decision would have right questions; unum evidence, arbitrary capri or is stantial the short determine whether needed to held that appeals have cious. Six courts were caused medical condi comings deferential, under erisa when review (and disability) thus established tions sub the information courts limited But source. Swiss had a non-medical plan’s administrator. Wil mitted to the Perlman, her did not fire transfer Bank Inc., System, Baptist Healthcare kins interesting less and less demanding to a (6th Cir.1998); 609, De- 617-20 150 F.3d (which con implied have position might As International Felice v. American discharge), suggest or even structive Life (2d 61, Cir.1997); Co., 112 F.3d surance performance improvement. needed her Co., performance 992 F.2d v. Home Insurance Perlman’s successful Donatelli job and 1994 shows that the (8th Cir.1993); between 1992 Quesinberry v. prevent her from did not 1988 accident America, 987 North Insurance Co. of Life attorney’s work. And Swiss doing Cir.1993) (en 1017, 1021-27 disability Bank’s differs Social Casualty banc); v. Aetna & Sandoval Life Bank Security extent to the Swiss Co., 967 F.2d Insurance im any not have version of “listed does Health, Cir.1992); Luby v. Teamsters Wel serious that a pairments”—conditions so Funds, 944 F.2d and Pension Trust fare, disability follows without finding of Cir.1991). (3d One court 1184-85 applicant to determine whether the effort gone way, Wildbur v. ARCO the other v. Policy Cf. Cleveland employable. 974 F.2d 636-42 Chemical — Management Systems Corp., Cir.1992), majority that the we believe -, 143 L.Ed.2d 966 119 S.Ct. Perhaps disagreement right. has this (1999). person job can do the A who than real. Courts in apparent more pro not “disabled” as the Swiss Bank is allowed, majority have what Wildbur meant gram uses that term. This stressed, appropri discovery may or (physical Perlman’s condition unless plan’s a claim that the investigate ate to mental) during deteriorated 1993 and not do what said administrator did disability bene is not entitled to she did—that, example, application was for fits. trash rather than evaluated thrown medical None of the evidence no merits. But when there can be on the that she had submitted unum showed given a application doubt years. taken a turn for worse recent evaluation, judicial is limit review genuine de- application physician’s Her contained that was submitted ed to evidence conditions, and scription of her limitations benefits, and support application of the these in but not effort to evaluate adminis processes plan’s the mental they how job her or assess relation to grounds of legitimate inqui (if are not trator they time have changed had over they be if the ry any more than would response request In to unum’s changed). information, were an administrative Perlman sub- decisionmaker additional personal of her pages mitted about 800 agency. diary and physician’s her notes. None job (or the end of 1994 1995) than these materials offers medical support for in the middle of 1993. change of condition. During appeals Because the district judge should have process, in the on rejected Perlman’s challenge to unum’s de- appeal Perlman has pat stood prop- cision, Perlman is not entitled to attorneys’ osition that unum must assess her abilities fees. None of the parties’ other argu- job relation to the regard without to her ments requires discussion in light of our (apparent) ability perform to Swiss conclusion that unum’s decision is reason- Bank’s satisfaction. did She provide not able, on the evidence that Perlman placed (or UNUM for that court) matter the district before it. The judgment vacated, with any evidence that her condition has the case is remanded with directions worsened, insistence that she unum’s enter judgment in defendants’ favor. demonstrate a change in condition cannot be called arbitrary, capricious, or other- DIANE WOOD, P. Circuit Judge, wise unreasonable. dissenting. We can imagine circumstances under In denying Judith Perlman an opportu- which it would be unreasonable to demand nity to have her claim for disability bene- proof of a change in condition. Some dis- fits assessed the administrator of the abled people manage to work for months, Swiss Bank Corporation Comprehensive years, only as a result superhu- Disability Plan on the basis of a proper effort, man which cannot be record, sustained. majority has misapplied the Sometimes work beyond one’s limitations standard of review established in Fire- is essential to maintain one’s standard of stone Tire & Rubber Co. Bruch, living, or is the result of an effort L.Ed.2d disguise one’s limitations from friends (1989), and has effectively precluded as a coworkers. Reality eventually prevails, matter law any procedural challenge to however, and limitations that have been ERISA administrator’s decisions, present all along overtake even the most thereby giving those decisions a uniquely determined effort to keep working. We privileged position in the entire field of can imagine lawyer trying on, to carry administrative quasi administrative law. defy her limitations, in order to avoid Even under the deferential standard abandoning profession in which so review requires Bruch in cases where plan much of her capital human and spirit is possess administrators discretion, on this invested. But Perlman herself was willing record the district court correctly held that to take long periods off from work be- UNUM’s decision could not stand. The tween 1988 and 1992, and she did not only interesting question was whether the (or argue to unum court) in this that her court was then to give entitled UNUM and performance between 1992 and 1994 re- Swiss Bank a second bite at the apple by flects a dogged effort that could not be remanding for further proceedings, or if continued. If Perlman were devoted to the error required judgment for Perlman beyond workforce her abilities, then without further ado. point, On that follow- likely she would have asked Swiss Bank ing general the principle that remedy the for an accommodation under the Ameri- should be tailored to the underlying prob- cans with Act, Disabilities but she did lem, not I would hold that a finding of abuse of do this. A responsible administrator of discretion procedures in the followed may Swiss Bank’s disability plan therefore was be corrected by an order requiring a sec- entitled to deny claim, Perlman’s without ond set of proceedings under correct pro- obtaining additional evaluations, medical cedures. Had the flaw instead been a for the simple reason that Perlman has one, substantive there would be no reason never argued that she was less to able do to require permit or chance, another

984 for bene- eligibility plaintiffs of the immediately trator entered be could judgment out be would plaintiff a fits, because claimant. successful for the for grounds ripeness on either court of a consider spends majority the Because (since she standing to sue statutory of lack of our on the time amount able proper- a denied yet been not benefit — had a word with begin I jurisdiction, appellate situation the Contrast improperly). ly or agree I analysis, final the In that. about in a suit bring to tries who party aof ap these over jurisdiction have we that theory, or contract a tort on court district in conclusion that I reach peals, agree- arbitration valid of a face the in tortured way. The straightforward more issue would court district The ment. the reviewa- to draws majority the analogy be unre- arbitrate, which would to order Social decisions court district bility of short, 16(b). In § U.S.C. 9 under viewable proceed remand that Act eases Security district the orders the FAA the under Security Administration Social to the ings classes: two into fall issue might court six or sentence four sentence either under reviewable, and immediately are that those the work not 405(g) does § 42 U.S.C. ERISA, all Under not. are that those to were however, note, that I end. plan about final decisions follow will orders conclusion, logical its analogy to take reviewable will be all benefits, and thus for result final same the to lead it would the to analogy the unless immediately, the despite because arguing, amI which any better. SSA works which review standard deferential Security correctly Adminis Social majority not. The decisions It does re entitled, regularly permitted courts is review immediate tration overturn would court trict would court 1132(a)(1)(B). The a find- only after decision administrator’s ordering position in the never be thus error, substantive either some ing of adminis- determination preliminary procedural; in no case has a district court should get fees; for ERISA purposes, simply refused to rule on the propriety of whether a litigant is a prevailing party is the administrator’s decision and remanded determined according to the standards de evidence, more and is not what the veloped under 42 § 1988, U.S.C. Janowski district court did here. Neither the cases v. Int’l Bhd. Teamsters Local No. 710 that the cites, majority Quinn ie. v. Blue Fund, Pension (7th 812 F.2d Cir. Cross & Blue Shield Ass’n, 161 F.3d 472 1987), which has nothing to do with Social (7th Cir.1998); Schleibaum v. Kmart Security disability. Corp., 153 F.3d 496 Cir.1998), nor the If precedents we reject which analogies those cases rely, e.g., SSA sen- Gallo v. tence four Amoco Corp., 102 remands FAA, and then the Cir.1996); question v. J.C. Penney Co., remains whether this Wolfe court has F.2d 388 Cir.1983), proper appellate jurisdiction. stand for the prop- I agree that osition that an do, ERISA remand is for the simple appropri- reason that the dis- ate without a finding error, trict court’s thus decision finally resolves the might resemble a sentence six SSA most important re- question in the litigation: So, mand. just FAA, as with the a distinc- is Perlman’s over, case as UNUM and tion between reviewable and nonreview- Swiss Bank argued, or Indeed, not? able remands exists in the Social Security is also that underlies both the context that simply cannot be translated sentence four/sentence six distinction and into an ERISA action. the difference § 16(a)(1)(E) between § 16(b), There are other reasons to making the eschew majority’s detour analogy between through SSA and these ERISA other review. areas of law unneces- Most importantly, sary. the SSA is We public need not think of the district agency, whose decisions are subject court’s to the remand here as “equivalent” to strictures of the Administrative Procedure SSA or FAA remands —all are reviewable Act, while ERISA administrators precisely the same reasons. UNUM private sector actors subject to regulation and Swiss Bank are here arguing that they under the ERISA statute. A host of fed- have right to a final order dismissing the eral constitutional rights and statutory Instead, action. the district rejected rights combine to procedural assure regu- that position and ordered private par- larity in the case of public agencies that ties to (ie. take certain action redo the are not available to those who attack pri- eligibility determination asking the proper vate action. In addition, the sources of questions and listening to the proper evi- substantive law differ significantly: dence) effect, an injunction. —in A final case SSA, agencies and courts deal order mandating private action is an ap- with an statute, entitlement while under pealable order, whether under 28 U.S.C. ERISA the Supreme Court has noted that § 1291 or perhaps 1292(a)(1). even As the proper guidance source of is the law of does the majority, I proceed therefore trusts. Bruch, See at 109 the merits of Perlman’s case. S.Ct. 948. The difference between deci- sions made by private I accept actors such as majority’s conclusion that plans ERISA public agencies language in the Swiss Bank plan stat- SSA is the reason that the Supreme ing Court that “[UNUM] will determine whether has instructed the lower courts to “develop you are disabled for Plan purposes” and a federal common law of rights “[you] and obli- give must proof UNUM], [to your at gations under ERISA-regulated plans,” id. own expense, you are disabled ...” is (internal 109 S.Ct. 948 quotation enough to confer the kind of discretion on omitted), marks rather than import whole- plan administrators that leads to deferen- sale body of administrative law. Nor do tial review under our See, cases. e.g., we need the analogy to determine who Patterson v. Caterpillar, Inc., 70 986 without conclusion court’s the lower miss Metropoli Cir.1995); v. Donato (7th

505 so. do to reason powerful a forth setting 375, 379 F.3d Ins. tan Life is question giving of difficult difficulties Cir.1994). the more to respect The With review, avoid review” conflict, to this “deferential content to give to this weight how and un could It approach rubber-stamp application. a ing both has content the that that suggests suggests, Bruch majority mean, the intrusion. as due em trusts, any which from of insulated the to law are processes look plan’s must faithful mean to be it could a trustee Or duty scrutiny. of the meaningful phasizes beneficiaries, and facts relevant the that, of all once the interests simply to a that hold final deci- to Court Bruch administrator’s the led the place, which are in not-so-close) an administra case (or between maybe interest conflict of a close sion some Su- given the be that must day. Given carry a claimant the tor should review. do some- us to deferential instructed under has even weight Court preme interest, of 115, 109 948. conflict S.Ct. at UNUM’s thing with appropriate more is the path the second Bruch’s, admoni dismisses majority The a decision- bias against Guarding one. a of such the existence doubting both tion, the de- assuring that of way is one maker ability to court’s reviewing a conflict struc- not itself cisionmaking process first the Regarding weight. any give is, the by It manner. unfair in an tured majority’s the that first concern, I note of adminis- of review part a routine way, reputational long-term about speculations those decisions, when even agency trative of regardless applicable seem effects of def- form to some entitled are decisions rated, yet retrospectively is plan whether evi- the substantial review, as such erential a conflict contemplates obviously Bruch capri- “arbitrary, the standard dence court Also, lower the cases. some at least IAs standard. cious, and unreasonable” of conflict potential found in this case analogy that the above, I think discussed Compre Bank v. Swiss interest. both disability cases Security to Social Plan, 979 Protection Disability hensive the by foreclosed theory and strained (N.D.Ill.1997). In the 726, 729 F.Supp. accepting However, even Supreme Court. to closely related context, which is estate have no “we that majority’s conclusion should us tells Bruch that law trust decision- actual that think to reason ERISA, at of interpretation our guide task their approached at UNUM makers that noted has court state one least the decisionmakers do than differently mixed ais conflict of a existence Administration,” Security Social at Dumitrov, 598 v. Hitt fact. law and of justification no there at ante The (Tex.Civ.App.1980). 355, 356 S.W.2d went UNUM how examine refusing in deter the same said Court Supreme claim. denying Perlman’s about areas. in other interest mining conflicts rule, it follows this Generalizing 466 U.S. Washington, Strickland administra- review (1984). deferential 2052, L.Ed.2d all consid- preclude not does tor decisions court this practice it is the Ordinarily, the admin- by which process eration “light awith questions mixed such treat To conclusion. to its came istrator constitu there unless touch” appellate point precisely contrary, case. in this present not concerns tional focusing, in should a court which Brancel, v.Co. Foods Dean conferred rights content give States citing United Cir.1999), micro avoid time the same § 1132 and Cir. Frederick, The decisions. particular managing imply mean Thus, I do 1999). while foreclose appears approach panel’s dis follow blindly must as adminis- long at least inquiry, conflict, think I finding court’s trict toss than something other does trator to dis- practice our usual with inconsistent claimant’s application trash, into the flip a buttable presumption that, after person coin, and announce a decision. This can- returns to work after an injury, there is no not be right. In ease, this Perlman has way the same injury can give rise to a raised a serious challenge to procedure valid disability claim. Such a conclusion is UNUM followed after she submitted her especially strange given that, under the 1994 claim for benefits. Specifically, she Social Security (which disability rules until argues that was arbitrary capricious point the majority has treated aas for UNUM to deny her benefits without nearly perfect analogue), an injured claim- collecting any expert medical evidence to ant may test her ability to work and still support its decision and instead to assume be considered disabled. 20 C.F.R. that the fact that Perlman had been work- 404.1592(a) (the “trial work period”). ing after injuries her meant that she was UNUM and the majority adhere to an not disabled. approach that makes a sweeping medical On merits, the majority takes the assumption that may have no basis in the position that the district court should not facts of particular case. Perhaps a per- have focused on “whether UNUM correct- son’s injury, if it renders her disabled at ly understood [Perlman’s] abilities in rela- all, makes it impossible to work the day tion to the demands of job,” her ante after her accident. But it is equally plau- 982, but in fact that was precisely the sible that some injuries may be events that correct inquiry. Perlman’s claim is (but shorten do not end) immediately her injury reduced her ability to work and person’s useful working life. If this is the that, by 1994, it had disabled her case, administrator would certain- performing job. her UNUM disagreed, ly be entitled to inquire into the circum- and the district court’s task towas review stances following an injury to see the reasonableness of this conclusion. Giv- claimant is really work, unable to or is en that defines “disability” as a simply unwilling to do so for reasons unre- condition in which “the insured per- cannot lated to the disability. But this inquiry form each of the material duties of [her] cannot be conducted without looking at occupation,” it is difficult to see how the competent medical evidence about relation between what Perlman could do claimant’s ability to work at the time the and what job her required was anything claim is filed. That might evidence show but the principal issue before the district that the earlier injury set into motion some court. Later opinion, in its the majority kind of degenerative process; might appears to concede that this is indeed the show person had continued to question, relevant when it comments that work by engaging in the kind of su- person “[a] who can do job at Swiss perhuman efforts the majority concedes Bank is not ‘disabled’ as the program uses are not required by (ante the law at 982- that term.” Ante at 982. 83); it might show that the person’s tem- porary ability The fallacy in continue working majority’s reasoning, possible made like the only by faEacy frequent afflicting leaves of decision, UNUM’s absence that lies in had assumption effect of temporarily the ability to do extending joba useful cannot working diminish life. unless physical con- dition also deteriorates significantly. That Perlman was entitled to introduce this assumption is what leads both to conclude type of evidence into the record before that Perlman’s ability to do job her in 1992 UNUM made a final decision on her claim. necessarily means that she could still do UNUM’s flat refusal to consider it ren- job her unless she had evidence dered its final decision arbitrary and capri- indicating that something more hap- had cious for purposes of ERISA review. The pened to her after the initial injuries and having had more extensive her return to work. This creates an irre- opportunity to consider this case than entitled is also view

have, whose points these understood correctly respect, the flaws remedy chose agree I proceedings. further requiring re- therefore I approach, with dissent.

spectfully MADSEN, Debtor. Douglas C.

In re Inc, Works, Mould

Hobson

Plaintiff-Appellee, Madsen, Defendant-

Douglas C.

Appellant, Dunbar, Trustee. C.

Michael Lease, Debtor. Herbert Aaron

In re Inc., Works, Mould

Hobson

Plaintiff-Appellee, Lease, Defendant- Herbert

Aaron

Appellant, Dunbar, Trustee. C.

Michael 99-2197NI.

No. Appeals, Court States

United

Eighth Circuit. 5, 1999. Oct.

Submitted: 2, 1999. Nov.

Filed: notes pro further for case under agency remanding to the cases mand decision for a law the administrative which the 405(g), under § when ceedings four sentence relevant excluded erroneously Commis- the error in judge finds court district harmful contrast, some other a district or committed In evidence decision. sioner’s v. See, e.g., Sarchet sen- under remanding error. case procedural court Cir.1996) immediately 308-09 Chater, F.3d is 405(g) six of tence articulate failed six ALJ a sentence (remanding reviewable, where largely because evidence); claimant’s without rejecting ordered ordinarily reasons remand 329, 333 Shalala, deci- former v. of the' propriety Herron on the ruling hewhy explain Cir.1994) Sullivan, ALJ (requiring Melkonyan sion. (1991). regarding testimony claimant’s L.Ed.2d rejected v. Sulli may Penn be dexterity); loss remands Moreover, pain “[s]entence-six Cir.1990) (find the where van, two situations: ordered of evidence an- exclusion before ALJ’s remand requests error ing Secretary ex new, ma- posed vocational or where hypothetical complaint, swering was pert). is adduced evidence terial agen- before not presented cause good creates ERISA statutory scheme The 292, 297 509 U.S. Schaefer, cy.” Shalala both ways from important different L.Ed.2d 2625, 125 2, 113 S.Ct. n. Act Arbitration Federal SSA however, if context, (1993). the ERISA In statute 16(b), other (“FAA”) § re- willing to were administrator In order analogizes. majority which likely claim, plaintiffs consider in the suit ERISA bring an 1132(a)(1)(B) under action that the a claim have must plaintiff grounds. ripeness dismissed to would benefit some denied improperly dis- before properly were the case If 29 U.S.C. entitled. she which

Case Details

Case Name: Judith Perlman v. Swiss Bank Corporation Comprehensive Disability Protection Plan

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Jan 6, 2000

Citation: 195 F.3d 975

Docket Number: 98-1338, 98-1339, 98-1407, 98-1408

Court Abbreviation: 7th Cir.