*1 amounts avail- were the total ed amounts SCHIKORE, Plaintiff-Appellee- say that it meant Karla Congress did not
able. Secretary’s authority only to restrict the Cross-Appellant, Any unobligated balances. contrac- spend make is might the tribe tual claim that none of the
vitiated the fact $7.5 BANKAMERICA SUPPLEMENTAL any time. was available at relevant million PLAN, RETIREMENT Defendant- might judgment There was no final Appellant-Cross-Appellee. 314, §of because complicate applicability 99-16952, Nos. 99-17017. subject judgment to the instant Moreover, § applies despite appeal. Appeals, United States Court of the fact that it was enacted after the dis- Ninth Circuit. trict court’s decision. Argued April and Submitted analogized The district court this case to Larionoff,36 United States v. but for sever Filed Oct. reject analogy. we Lario- al reasons nojf Navy holds that where a enlisted man
made a contractual commitment to reenlist then-existing
based on the statute and entitling him to a “varia
Navy regulations bonus,” enlistment the statute could
ble properly be construed to take that case, away.37 though, In this
bonus expressly
Tribes’ contract was made “sub
ject availability appropriations,” to the
unlike the reenlistment commitment Also, in
Larionojf. Larionojf, the Court light
said that in of the “serious constitu questions”
tional that would arise from a bonus, deprivation
retroactive conclude, in lightly
“would not the absence expression congressional
of clear intent”
that Congress meant to affect service entitled
members to receive variable reen bar, In
listment bonuses.38 the case at year 1999 appropriation
fiscal is the “clear
expression congressional intent” that
was absent in Larionoff.
REVERSED.
36. 431 U.S.
97 S.Ct.
Margaret Farley, M. Farley Law Of- fices, Rafael, California, San for the defen- dant-appellant-cross-appellee. *3 Alderman, Paul Ann Simpson, Leigh V. Innes, Francisco, Simpson, Garrity & San California, for the plaintiff-appellee-cross- appellant. REINHARDT, TASHIMA,
Before: BERZON, Judges. Circuit REINHARDT; Opinion by Judge Dissent Judge TASHIMA REINHARDT, Judge: Circuit Schikore, Plaintiff Karla 20-year em- America, ployee SA, of Bank of NT & lump-sum seeks disbursement of retire- ment benefits she has accrued as a partici- pant Supplemental the BankAmerica Plan, Retirement an employee benefits plan covered under the ERISA statute. The defendant Plan denied Schikore’s re- quest ground on the proper- that she failed ly to follow the payment Plan’s election procedure. Specifically, the Plan contends that Schikore failed to submit the requisite payment year election form one advance of her request lump-sum dis- bursement, as mandated the Plan’s rules, and that it has no record of having received the form. Schikore asserts that she mailed the form well in advance of the deadline, that she submitted evidence of mailing, such a and that the common law mailbox under which pre- upon sumed proof mailing, apply. should Whether the federal state common law applies mailbox rule to an plan’s question benefit decisions is a of first im- Employee in this As Schikore was ration Benefits pression Circuit. Administrative (“Plan Administrator”), a denial of benefits under her appealing Committee which jur- had plan, retirement the district court participating consists of senior officers of 1132(a)(1)(B). § isdiction under U.S.C. Corporation subsidiaries and affiliates. remanding court’s order to the district The Plan Administrator discretionary has appeal- Plan Administrator constitutes an authority under the Plan to determine eli- order, juris- able final over which we have gibility for benefits and to construe (stat- pursuant diction 28 U.S.C. terms of the Plan. jurisdiction
ing
appeals
that courts of
have
rules,
The Plan
contained
solely
appeals
over
from “final decisions of
Description,
provide
employee
with
States”).1
the district courts of the United
*4
$10,000
at
least
her account who wishes
lump-sum disbursement of benefits follow-
AND
FACTUAL
PROCEDURAL
ing
employment
termination of
must sub-
BACKGROUND
mit a
payment
benefit
election form to the
by Bank of
employed
Schikore was
BankAmerica Retirement Plans Service
(“Bank”)
America, NT
to
& SA
from 1978
(“Service Center”)
Center
at
least one
voluntarily
March
ter-
when she
year prior to the termination date. The
Bank
a
employment.
minated her
The
daily administration of the Service Center
subsidiary
Corporation
of BankAmerica
administrator,
by
third-party
is handled
a
(“Corporation”), which established the
Lipton (“Third-Party
Kwasha
Administra-
Supplemental
BankAmerica
Retirement
tor”),
by
but overseen
the Plan Adminis-
(“Plan”)
employees
Plan
for its
and em-
employment
trator.
If
is terminated be-
ployees of its subsidiaries and affiliates.
one-year anniversary
filing
fore the
of the
in the
The rules of the Plan are contained
form,
request
lump-
of the election
for
(“Plan De-
summary description document
sum disbursement is not honored and ben-
employ-
scription”). During Schikore’s
paid
efits are instead
five annual install-
Bank,
participated
ment with the
she
beginning
year
ments
the calendar
after
plans
several retirement
offered
employee
years
age.
reaches 65
Corporation;
the one at issue here is an
n
Schikore,
old,
years
intend-
who is 51
stated
plan
unfunded retirement benefits
completed
the election form in
provide supplementary
ed to
benefits for
she
management
compen-
1996 and mailed it to the Ser-
highly
certain
December
Center, retaining
copy
vice
for her rec-
employees
sated
various subsidiaries
Corporation.
prior
terminating
and affiliates of the
As an
ords.
In March
to
Bank,
required
employment
unfunded
the Plan is not
her
with the
Schikore
plan,
pay
lump-sum
to be used to
for
disbursement of her
segregate
applied
funds
pur-
for
was informed
benefits. The
administrator
benefits. Schikore
Retirement Income
not have an election form
poses
Employee
of the
Plan
she did
(“ERISA”),
Immediately
Security Act
29 U.S.C. on file
the Service Center.
this,
1002(16)(A),
Corpo-
learning
copy
faxed a
upon
is the BankAmerica
Schikore
(2)
remanding
apply;
district court’s order
to the
box rule should
the district court
The
Plan,
remand,
appealable
upon
Plan Administrator is an
final or-
asked the
which,
erroneous,
Hensley
would
resulted in a
der under
v. Northwest Permanente
if
have
Trust,
(3)
proceeding;
P.C. Ret. Plan &
on the basis that it did not have her elec-
year
tion form on file
prior
one
to her
STANDARD OF REVIEW
March,
request.
case,
In an ERISA
we
review
appealed
Schikore
the Plan’s decision to
district court’s determinations de novo.
Administrator, asserting
that the
Friedrich v. Intel Corp., 181 F.3d
common law
pre-
mailbox rule creates a
(9th Cir.1999).
Where the benefit
sumption of receipt which the Plan had
plan gives the
fiduciary
administrator or
failed to rebut. The Plan Administrator
discretionary authority to determine eligi
appeal
denied Schikore’s
on
grounds
bility -forbenefits or to construe the terms
(1)
because
preempts
common
of the plan,
ordinarily
we
review the
rules,
law
the mailbox rule is inapplicable
administrator’s decisions for an abuse of
(2)
employee
plans,
even if the
discretion. Sandy v. Reliance Standard
mailbox rule would
apply,
otherwise
Ins.
rules,
contract,
as a matter of
ex-
*5
Cir.2000); Firestone Tire & Rubber
v.Co.
pressly require
receipt
opposed
actual
as
Bruch,
101, 115,
948,
489 U.S.
109 S.Ct.
(3)
document,
mailing
to mere
of the
and
(1989).
Schikore
§
filed suit under
arbitrary
capricious.
We have held
ERISA,
which permits a participant
plan
“to that
administrators abuse their dis
recover
him
benefits due to
under the
cretion
they
when
“render decisions with
plan,
terms of his
rights
enforce his
any explanation,
out
provisions
or construe
under the
plan,
terms of the
or
clarify
of the
plan
way
that conflicts with the
rights
his
to future benefits under
plain
language
plan.”
of the
Eley v. Boe
Co.,
terms
plan.”
276,
(9th Cir.1991)
29
ing
U.S.C.
279
1132(a)(1)(B).
(internal
§
omitted).
grant-
The district court
quotations
Similarly
summary judgment
ed
in favor of Schi- we have held that an abuse of discretion
kore, concluding that the Plan Administra-
plan
occurs when a
administrator fails to
tor abused
by
its discretion
refusing to
develop
necessary
facts
to make its deter
apply the common
presumption
mination,
law
Taft,
of re-
961
Application
I. The
in the case of errors
Common
applicable
equally
administrators.
Rule
law made
Law Mailbox
to Schikore’s
Eligibility Determination
gives
“if a
Additionally,
fiduciary
to an administrator or
discretion
provides
The mailbox rule
under a conflict of inter
operating
who is
timely
the proper
mailing
of a docu
est,
weighed
must be
as a
that conflict
ment
presumption
raises
rebuttable
whether there is
determining
‘facto[r]
document has been received
” Firestone Tire
an abuse of discretion.’
in the
time.
It
addressee
usual
is a settled
115,
109
and Rubber
489 U.S.
S.Ct.
Hag
feature of the federal common law.
(Second)
(quoting
948
Restatement
States,
427, 430,
ner v.
52
United
285 U.S.
(1959)).2
d
Trusts
Comment
(1932);
S.Ct.
er establish actual DISCUSSION occurred. The Document contains no provisions addressing terms or how it is to arbitrary The Plan’s determination was required be determined whether a form capricious and and it abused its discretion was received. For reasons enumerat (1) finding preempted that ERISA below, ed we hold that such circum (2) rule, finding common law mailbox» it of stance was an abuse discretion for the rule was one of construction and there- apply long-established Plan to fail to inapplicable requirement fore to the Plan’s that a presumption common-law rebuttable (3) receipt, failing of actual and to ade- received, developed pre letter mailed is quately develop factual record before cisely to aid finders of fact circum denying eligibility Schikore’s claim of for stances where direct evidence of either benefits. borrows, corporation employer responsible as a 2. We note that the for financial services (the Bank) funding invests, benefits is a money Schikore's and lends based on the size of Corporation subsidiary, BankAmerica and pool cir- available assets. Under these responsible Plan Administrator for determin- cumstances, may a motive exist for (the ing eligibility for benefits Schikore's deny illegitimate administrator to for reasons Committee) employees consists of of the Bank request lump-sum for disburse- claimant's Corporation and other subsidiaries and affili- ment, Corporation might in order that the that, plan, We ates. also note as unfunded period make use of such funds in the before required segregate the Plan is not to the funds the claimant turns 65. benefits, BankAmerica, pay used to and 962 is, here, 489, 497,
receipt
non-receipt
or
as
not avail- U.S.
116 S.Ct.
134 L.Ed.2d
(1996)).5
able.3
130
In formulating the federal
ERISA,
common law applicable to
courts
The common law mailbox rule is
are
be “governed by
policies
to
the federal
purposes
consistent with the
of ERISA
at issue.” Menhorn v. Firestone Tire &
applies
plans
and
ERISA
where
(9th
Rubber
738 F.2d
1500
Cir.
dispute.4
is a factual
As
issue
the dis
1984).
purpose
pro
ERISA is to
noted,
trict court
federal common law is
rights
employees
tect the
in their bene
applicable
evaluating
when
claims for ben
1001(b)
plans.
fit
29
(congres
U.S.C.
law
efits unless
common
is inconsis
findings
sional
and declaration of ERISA
objectives.
tent with
“In enact
ERISA’s
Thus,
policy).
example,
for
this Court has
ERISA,
ing
Congress painted with a broad
held that there
right
common law
brush, expecting the federal courts to de
rescission under ERISA for an insurance
velop a ‘federal
law rights
common
contract entered into
obligations’
repre
under a false
interpreting
fiduciary
ERISA’s
U.S.A.,
standards.”
sentation
Bins v. Exxon Co.
of health. Sec.
Ins. Co.
Life
(9th Cir.2000) (en
220 F.3d
Meyling,
Am. v.
banc)
Howe,
Cir.1998).6
(quoting Vanity
Corp.
Particularly relevant to the in-
3.Our
determination that
the common law
denying
appeal,
4. When
Schikore's
evidentiary
applies
rule,
"mailbox” rule
to the Plan
found that the mailbox
as a common law
is not inconsistent with our
decision that a
Plan,
preempted by
ERISA. The
Plan Administrator need not
a com-
seems,
preemption
has since abandoned this
mon-law
of a Plan's term that dif-
definition
contention. We must nonetheless consider
fers from the
definition that is used
governing
the source of the
law in order to
(IRS)
Internal Revenue Service
and favored
determine
applies
whether the mailbox rule
Hensley,
the Plan Administrator. See
plans.
Hensley,
F.3d at 989. In
the Plan Administra-
tor,
discretion,
in its
defined the term "em-
also, e.g.,
5. See
Sec.
Ins. Co. Am. v.
ployee”
employees”
to mean "W-2
as this
Meyling,
Cir.1998)
employer’s
was the
designing
intent when
("Under ERISA, Congress has authorized the
plan. The Administrator's definition corre-
nationally
courts ‘to formulate a
uniform fed
sponded
"employee”
with the definition of
supplement
eral common law
explicit
purposes
tax
that the Internal Revenue Ser-
provisions
general policies
set out in [the
*7
vice
employer
pri-
communicated to the
in a
”) (quoting
Act].’
Peterson v. Am.
&Life
ruling.
vate letter
Id. at 1001-2. The district
(9th
Health Ins.
48 F.3d
411
Cir.
court, however, determined that the common-
1995)) (alteration
original);
in
Richardson v.
"employee”
law definition of
apply
should
Pension Plan
Corp.,
Bethlehem Steel
of
Plan,
because the term was not defined in the
(9th
1997) ("ERISA
Cir.
does
and that the Plan Administrator had abused
body
govern
contain a
of contract law to
construing
its discretion in
the term different-
interpretation
the
employ
and enforcement of
reversed,
ly.
holding
We
"plan
that
adminis-
Rather,
plans.
Congress
ee benefit
intended
given
trators should be
the full benefit of the
that
principles
courts
contract
derived
by
discretion afforded
respective
to them their
guided by
from state
policies
law but be
the
terms,
plans
interpreting plan
in
they
be
de-
expressed in ERISA and other federal labor
undefined,
fined or
with the reasonableness of
laws.”) (citation omitted).
interpretations being
those
against
evaluated
legal backgrounds.”
the relevant factual and
approach
6. This
case,
is the
followed in other Cir
Id. at 1001. In Schikore's
it is not the
issue,
Manning Hayes,
cuits as well.
interpretation
See
of a Plan term that
is
but, rather,
(5th Cir.2000) (holding
870-74
evidentiary
an
that fed
whether
rule of
applicable
applies
disputes
federal common
eral common law
law is
between
in the ab-
provision
sence of a
rejecting
non-beneficiary
in a
that
claimant and the named
rule. We hold that the
beneficiary
proceeds),
federal common law
ERISA
to life insurance
-
applies
denied,
-,
rule
in such circumstance.
cert.
U.S.
121 S.Ct.
unproved
by
participant
assertions
Horton v. Reliance Standard
case is
stant
Co.,
The Plan relied in its factual followed at the time when the document in non-receipt only determination of on the question might conceivably fact that have the form is not been de- presently con service, postal tained its records. livered Permitting by a retire to provide ment to find simply on non-receipt evidence that it thorough has conducted a that the records basis office now can search for the document at the addressee’s document, not although find the there is physical facility, and to establish had that of mailing, evidence is inconsistent with the document been received around the purpose protect ERISA’s to employee mailed, time the claimant asserted it was rights.7 Employees are asked to often presently would be location crucial make determinations about by searched the Plan Administrator.8 management and disbursement of their re The Plan has asserted that the entirety tirement benefits submitting certain of its administrative record on this deter- forms) (e.g., payment documents election mination has been admitted into evidence. to their plans. retirement In large a num nothing There is cases, that record to suggest ber of will submission mail. occur that any function of the Administrator conducted mailbox rule in fact- this provide finding beyond context employees with a of “confirming” with that, guarantee if the retirement Third-Party Administrator that Schi- Nunley City In v. Los Angeles, we held presently Schikore's form is not contained of "specific a factual receipt” by denial of its files "specific is insufficient to constitute a the addressee is sufficient to pre- rebut the receipt.” factual of denial sumption receipt of in the context of the ad- dressee’s motion for an extension of time to States, 8. See Anderson v. United 966 F.2d appeal file an made under Federal Rule of (9th Cir.1992) credible, (rejecting, as not Procedure, 4(a)(6). Appellate Rule 52 F.3d government's rebuttal evidence which consist- (9th Cir.1995). 792-93 The extension ed non-receipt); records Jones v. United required States, in that case because the would- Cir.1955) ("The 226 F.2d appellant be claimed not to have received showing pertinent a search of the files in entry judgment. notice of the Id. at 793. the [addressee's] office revealed no record of Allowing a presumption rebuttal of the having the [relevant documents] been filed is receipt by "specific circumstance, factual purely negative denial” was insufficient general therefore consistent with the purpose ... presumption delivery.”); rebut the Appellate Assocs., of Federal Rule Longardner Procedure In re & 4(a)(6), (7th Cir.1988) which parties is to ensure that who (holding that denial of have entry not received notice judg- of the is not sufficient to pre- rebut mailbox thereby deprived Dann, are ment oppor- sumption); Legille 7-8 tunity appeal. (D.C.Cir.1976) (Patent Id. at 795. We are not presented, Office as re- *9 Nunley approach that appli- certain 's to the buttal receipt proce- detailed mail dures, cation of the rule apply would presumption outside the to rebut the of of Rule(a)(4)(6) However, context. even if it documents claimed by patent to be mailed did, simple BankAmerica’s applicants). statement that Plan in a currently on file at the the received Schikore’s form was form not kore’s timely manner. Center. Plans Service Retirement law the common mailbox It is clear that Attorneys’ III. Fees not to Schikore’s claim.9 applied rule was requests an Schikore award the that determination that find the We attorney’s fees incurred the district inapplicable law rule is common mailbox appeal in this court level and under 29 ERISA, to develop the failure under § 1132(g)(1), which authorizes re U.S.C. meaningful upon record which any factual covery attorney’s any of fees and costs in determination, were both arbi- make a to under action 29 U.S.C. capricious and demonstrate a trary and 1132(a)(1)(B). gave district court by the Ad- abuse of discretion clear no for its denial fees to Schi reasons ministrator.10 kore; the court therefore abused its dis deny to an grant cretion or award of fees. II. Remand to Plan Administrator Accordingly required we are to set its party sought to introduce evi- Neither decision aside. Smith CMTA-IAM in beyond record dence the administrative (9th Trust, Pension F.2d Cir. court, party sought and neither district 1984). entitled upon Schikore is to fees any remand to the Plan Administrator for appeal, Canseco v. Constr. Laborers Pen agree purpose. parties Both that other Trust, sion 609-10 Cir. necessary a remand or desir- such is 1996), the which amount of we remand to able, required is here is a because what the district court for determination. that the courts must legal determination ultimately agree make.11 We the cen- CONCLUSION in a question this case is not question tral or We conclude that Administra- application of discretion the a stan- in denying tor discretion Schi- contained in a or some other abused its dard here, Rather, of her re- simply lump-sum it is a kore disbursement document. legal applying the correct rule— tirement benefits without the applying matter light In simple parties’ law and mailbox rule. a common rule—to circumstance, to Plan Ad- agreement that remand undisputed facts. In inap- court to the ministrator the district we will not order a remand Adminis- vacate contrary hereby part we expressed propriate, trator to the views of order and remand to that court We therefore remand to the court’s parties. pre- law mailbox apply court to the common district to review administrative ad- it, sumption the facts contained before common law record already before it. determine whether ministrative record mailbox and to Accordingly, express no legal trary principle. we record it was counsel 9. The shows that question who advised the Plan Administrator that here. view on that applicable. rule was not common law mailbox Regardless of the Administrator re- to a 11. We do not remand administrator coming its lied on erroneous counsel plan administrator has neither en where the conclusion, the still conclusion constitutes necessary inquiry, nor gaged factual thus, and, error of law an abuse discretion. provided for his determination and reasons entitled to substantial deference. therefore not presented question We are not with the Plan, See v. Lockheed Medical Booton Benefit provision in a whether or what manner 1997). Cir. notice, plan, participants which have adopt reject may the mailbox rule a con- *10 966 (9th
Schikore is awarded attorneys Cir.1999). fees in- 943 Schikore has not curred on appeal, this the amount to be pointed to any evidence in the record to court, determined the district which support her claim interest, of a conflict of shall also prior reconsider its denial of fees let alone probative evidence; material and to Schikore. her generalized assertions are insufficient to support Atwood, her claim.2 See 45 part; AFFIRMED VACATED in F.3d at that, (explaining 1323 “the simple part; and REMANDED.
fact that employees of
participant’s
[the
TASHIMA,
employer] made the
Judge,
deny
Circuit
decision to
dissenting:
bene-
fits is not enough to establish a breach of
I disagree with the majority that
fiduciary duty”). The Plan Administra-
Plan Administrator abused its discretion in
tor’s
deny
decision to
payment
accelerated
denying Schikore’s claim.
of the benefits therefore should be re-
First,
majority
implies that a height
viewed
under
more deferential abuse
ened
may
standard
review
be appropri
of discretion standard.
ate
potential
because of a
conflict of inter
est between the employer responsible for
Under the traditional abuse of discretion
funding Schikore’s benefits and
standard,
the Plan
“plan
administrator’s deci
responsible
Administrator
for determining
deny
sion to
benefits
upheld
must be
...
if
eligibility
Schikore’s
Maj.
benefits.
op.
upon
is based
a
interpreta
reasonable
at 960 n. 2. It is true that an “apparent”
tion of
plan’s
terms
if it
and
was made
conflict of interest exists
plan
when a
ad
in good faith.
question
The
we must ask is
responsible
ministrator is
for both funding
not ‘whose interpretation
plan
docu
and paying claims.1 McDaniel v. Chevron ments
persuasive,
is most
but whether the
”
1099,
(9th
Corp.,
Cir.2000).
203 F.3d
interpretation
is unreasonable.’
However, unless
participant McDaniel,
(citation
967
ends,
Participant’s
the
Employment
P.C. when
Permanente
Northwest
v.
Hensley
Plan shall
(9th
Supplemental
the
under
Trust,
1001
benefits
258 F.3d
&
Ret. Plan
com-
installments
five annual
quotation
paid in
Cir.2001) (citations
internal
be
the
after
year
omitted).
mencing in the calendar
marks
¶ 5.3(b).
65.” Plan
age
attains
Participant
ERISA, Con-
that, “[u]nder
true
It is
the
that
states
explicitly
Plan thus
The
formu-
‘to
the courts
authorized
has
gress
mailed,
received, not
must be
election form
federal common
nationally uniform
late a
Plan Admin-
The
be effective.
in order to
provisions
explicit
the
supplement
law to
”
requir-
as
these terms
interpreted
istrator
Act].’
in [the
set out
policies
general
of
evidence
merely
not
receipt,
actual
ing
146
Meyling,
Am. v.
Ins. Co.
Sec.
of
Life
deci-
a
“may overturn
Cir.1998)
mailing. Again, we
(9th
(quoting
1184, 1191
F.3d
arbitrary
patently
48
it is so
only
Ins.
where
sion
& Health
Am.
v.
Peterson
in
Cir.1995)) (second alter-
lack foundation
(9th
toas
and unreasonable
411
F.3d
Nonetheless,
in
plain
governing
“the
authority
factual basis
original).
ation
and/or
be
should
plan
Hensley, 258 F.3d
ERISA
law.”
of
or statute
language
case
omitted).
meaning.”
and natural
(internal
literal
marks
quotation
its
given
1001
Isbell,
F.3d
139
is
interpretation
Cost Controls
Health
Plan Administrator’s
The
Cir.1997). Thus, although
(6th
1070, 1072
arbitrary and unrea-
certainly
patently
not
gaps
the
law “fills
common
federal
upheld.
be
and,
must
consequently,
sonable
interpretation
in the
to assist
ERISA
(stating
McDaniel,
1113
F.3d at
See
may not
courts
...
federal
plans,
to
decision
administrator’s
a plan
that
the
to alter
theories
law
apply common
if it is
upheld
be
must
deny benefits
plans.”
written
terms of
express
plan’s
the
interpretation
reasonable
omitted);
also Richardson
(citation
see
Id
faith).
in good
was made
terms and
Corp.,
Steel
Bethlehem
Plan
v. Pension
distinguish
to
attempts
majority
The
Cir.1997)
(agreeing
is
the instant case
stating that
Hensley by
that
statement
Circuit’s
the Sixth
with
“
aof
interpretation
the
with
first
arise,
not concerned
should
courts
disputes
‘[w]hen
It is
n. 3.
at 962
Maj. op.
agree-
the
term.4
language of
Plan
explicit
[the]
to
look
term
of a
clear
the
determine,
interpretation
if
the
possible,
precisely
ment
issue,
question
”)
The
Armistead
however.
(quoting
that is at
parties’
the
intent of
1287, form
an election
had
Corp.,
Sehikore
v. Vemitron
The
Cir.1991)).
ended.
employment
her
when
effect
the
that
determined
Plan Administrator
form
election
the
that
Plan states
The
Schikore’s
not received
had
Service Center
year
one
the
on
become effective
“shall
termi-
to her
prior
year
one
form
election
is re-
the election
the date
anniversary of
Plan, and
date,
required
as
nation
Plan
Center.”
by the Service
ceived
a form
not have
did
accordingly
that she
added).
also
¶
The Plan
5.4(b) (emphasis
unreasonable
was not
It
effect.
not
does
Participant
that “[i]f
provides
receipt of
interpret
Administrator
effect
election
benefit payment
have a
"employ-
definition
law
common
than
inter-
Hensley,
administrators
In
aspect we reversed
appeal,
“W-2” em-
On
“employee” as
ee.”
the term
preted
decision, holding
purposes,
Service
Revenue
court's
ployee for Internal
the district
as such
defined
was not
though
required
term
even
were
administrators
decided
court
plan.
district
term.
in the
definition
law
common
federal
discre-
their
had abused
the administrators
at 1001.
definition, rather
W-2
applying the
tion
requiring
form as
Service Center weighing the
its application
but
*12
to have the form on file.5
the contrary,
On
did not conflict with
express
terms of
administrators
“plan
given
should be
policies
nor with
companies’
right-
full benefit of the discretion afforded to ful exercise of their discretion in interpret-
by
respective
them
plans
their
in inter-
ing the meaning
policies.
of the
terms,
preting plan
be they
or
defined
contrast,
By
majority’s
reasoning in
undefined, with the reasonableness of
the instant case both negates the Plan’s
those
interpretations
being evaluated
requirement
that the election form be “re-
against the relevant factual
legal
back-
ceived” in order to be effective and im-
grounds.” Hensley,
sive as to whether the deceased died
accidental means, or intentional use of the
legal presumptions against suicide and
favor of accidental death appropriate.” are
Id. at 1040. The presumption sui- against
cide therefore employed as a means of
5. majority concludes that because the matter”); rence or nonexistence of the United “only Plan relied on the fact that the form is Georgia, States v. De 892-93 record,” presently not contained in its to find Cir.1969) (same). non-receipt,, the evidence was somehow insuf ficient and inconsistent Maj. with Imposing ERISA. the use pre- of a common law op. added). (emphasis at 963 But what sumption else in the circumstances of this case on, can a rely custodian of a record except goes beyond on reviewing the Plan Administra- absence, prove record's non-receipt? . tor’s decision for an abuse discretion. It is Contrary majority's reasoning, to the unprecedented it is a in that we taking are on a long-accepted well-established and evidentia- supervisory given role not to us ERISA. ry rule that the absence of a Imposing requirement communication such a is no different proof that it was never received. See Fed. prohibiting than an ERISA relying from 803(7) R.Evid. (providing that hearsay "evidence that making on imposing or decisions a matter is included [regularly kept] other rules of evidence. respectfully suggest I records” is prove admissible "to the nonoccu- that review for abuse of discretion does not DELIVERY, INC.,
SHOTGUN
Plaintiff-counter-defendant-
Appellant, America, STATES
UNITED
Defendant-counter-claimant-
Appellee.
No. 00-15495. Appeals, States Court
United
Ninth Circuit. 12, 2001 July
Argued and Submitted 16, 2001
Filed Oct. making. impose authority to supervisory
include such govern ERISA decision- of decision to rules