TRUSTEES OF the ELECTRICIANS’ SALARY DEFERRAL PLAN; Trustees of the Local No. 1, IBEW Pension Benefit Trust Fund, Plaintiffs v. Pamela WRIGHT, also known as Pamela Dallas, Defendant-Appellee Eloise Walker, Defendant-Appellant.
No. 11-2051
United States Court of Appeals, Eighth Circuit.
August 21, 2012
691 F.3d 922
Fifth, B & B asserts that its tortious interference and ADTPA claims are not derived from the parties’ contractual relationship because B & B alleges specific instances after 2007 where Fastenal steered customers seeking B & B self-sealing fasteners to another company‘s self-sealing fastener instead. However, B & B concedes in its opening brief that the specific instances “also happened to be a breach of the duties and obligations outlined by the Agreement.” Indeed, absent the agreement, Fastenal would have been within its rights to steer third party customers to any self-sealing fastener product it chose, no matter which product the customers initially had been seeking. Thus, “[a]ny adverse effect on [B & B‘s] relations with [a third party] was an incidental consequence of the breach of contract, not an independent basis for liability in tort.” Income Props./Equity Trust v. Wal-Mart Stores, Inc., 33 F.3d 987, 990 (8th Cir.1994) (applying Arkansas law). A similar analysis applies to B & B‘s claims under the Arkansas Deceptive Trade Practices Act. See CEI Eng‘g Assocs., Inc. v. Elder Constr. Co., 2009 Ark. App. 259, 306 S.W.3d 447, 453-54 (2009) (holding that claims that “represent nothing more than ... dissatisfaction with how [a party] set about to fulfill its obligations under [an] agreement” are not “within the purview of the ADTPA“). Because “a breach of contract, in and of itself, is not tortious,” id. at 454, we agree with the district court that B & B has no cognizable tortious interference or ADTPA claims.
Finally, B & B requests vacatur of the attorney‘s fee award if the grant of summary judgment in Fastenal‘s favor is vacated. Because the grant of summary judgment must be affirmed and B & B makes no other challenge to the attorney‘s fee award, that award must be affirmed as well.
III. Conclusion
For the foregoing reasons, we affirm the grant of summary judgment to Fastenal on all claims and the award of attorney‘s fees.
Before SMITH, BEAM, and SHEPHERD, Circuit Judges.
SHEPHERD, Circuit Judge.
Eloise Walker submitted a claim for benefits from the trustees of the Electricians’ Salary Deferral Plan, a 401(k), and from the Local No. 1 IBEW Pension Bene
The plans’ trustees then filed an action for interpleader in the district court,1 depositing the death benefits with the court pending judicial review of the administrative determination of benefits. The court dismissed the trustees from the action.
Subsequently, Dallas filed a cross claim against Walker and sought summary judgment and enforcement of the administrative decision. After the court denied Walker‘s request for appointment of counsel, Walker proceeded pro se and filed an answer to Dallas‘s complaint and a response to Dallas‘s motion for summary judgment. The district court granted summary judgment in favor of Dallas.
Walker appeals the grant of summary judgment, arguing that the district court erred because it made a ruling without first reviewing the entire administrative record. In the alternative, Walker argues that the court erred by applying the wrong standard of review.2 We affirm.
I.
“Under ERISA, when a denial of benefits is challenged through judicial review, ‘the record that was before the administrator furnishes the primary basis for review.‘” Callow v. Prudential Ins. Co. of Am., No. CO7-1247RSM, 2009 WL 1455326, at *1 (W.D.Wash. May 21, 2009)
“[O]rdinarily, this court will not consider arguments raised for the first time on appeal.” Wiser v. Wayne Farms, 411 F.3d 923, 926 (8th Cir.2005) (quotation omitted). “As such, a party cannot assert arguments that were not presented to the district court in opposing summary judgment in an appeal contesting an adverse grant of summary judgment.” Cole v. International Union, et al., 533 F.3d 932, 936 (8th Cir.2008) “We may notice plain error despite a failure to raise the issue below, but we generally do so only to prevent a miscarriage of justice.” Id. (quotation omitted). “Plain error is a stringently limited standard of review, especially in the civil context.” Littrell v. Franklin, 388 F.3d 578, 587 (8th Cir.2004) (quotation omitted). “[T]he party claiming plain error [must] demonstrate ... that [the alleged error] likely altered the outcome[]” of the proceeding. Id. (quotation omitted).
The district court had an extensive record before it. The only items that Walker identifies that were not before the district court are records of Bernard Walker‘s employment and a record of his investment decisions. Walker fails to point out how consideration of these records would have “likely altered the outcome” of this proceeding. See id. Finding no plain error, we reject Walker‘s claim that the district court considered an inadequate record.
II.
Next, Walker argues that the district court erred in applying the abuse of discretion standard in reviewing the initial decision of the Plan Administrator. She alleges the Appeals Committee did not make a decision on the merits of her claim by not addressing the issues of mental incapacity or undue influence and instead merely denied her a hearing, leaving the merits decision to the district court by filing the interpleader action. “Where an ERISA plan gives the administrator discretionary power to ... make eligibility determinations, the administrator‘s decision is reviewed for an abuse of discretion.” Hankins v. Standard Ins. Co., 677 F.3d 830, 834 (8th Cir.2012). However, the district court should apply a de novo standard of review, rather than an abuse of discretion standard, when the “administrator did not exercise the discretion granted to it.” Alliant Techsystems, Inc. v. Marks, 465 F.3d 864, 868 (8th Cir.2006).
In its decision, the Appeals Committee determined the merits of Walker‘s claim. The Committee directly addressed the issues of undue influence and mental incapacity, finding Walker had not submitted specific evidence to prove her claims. The trustees’ choice to file an interpleader action does not preclude its eligibility determination from being afforded an abuse of discretion review. See Alliant Techsystems Inc., 465 F.3d at 869 (the district court should give judicial deference toward issues the administrator did decide before filing its interpleader action) (quotations omitted). The district court properly applied the abuse-of-discretion standard.
Finally, Walker argues that the district court should have applied a de novo standard of review rather than an abuse of discretion standard to the Plan Administrator‘s decision because of procedural irregularities at the administrative level. The district court should “apply heightened review ... where the [would-be] beneficiary can show (1) that a serious procedural irregularity existed; and (2) that the irregularity caused a serious breach of the plan trustee‘s fiduciary duty to the plan beneficiary. The mere assertion of an apparent irregularity, without more, is insufficient to give rise to heightened review.” Layes v. Mead Corp., 132 F.3d 1246, 1250 (8th Cir.1998) (internal citation omitted).
Walker alleges the following irregularities occurred: the Appeals Committee failed to make findings of fact; the Appeals Committee denied Walker‘s request for a hearing even though Walker indicated she had new evidence that was not before the Plan Administrator; the Appeals Committee issued its decision to deny a hearing simultaneously with its decision on the appeal; and the Appeals Committee failed to advise Walker that she could obtain the administrative record.
The first three of Walker‘s allegations do not appear to be irregularities at all, much less serious ones. First, Walker failed to demonstrate that the Appeals Committee‘s decision failed to make findings of fact. As noted, the decision specifically found that Walker had presented insufficient evidence to support her claims. Second, the appeal procedure expressly gave the trustees the authority to decide whether a hearing would be held. Third, nothing in the appeal procedure prohibited the filing of a denial of an appeal simultaneously with the denial of a hearing.
Walker points out that the adverse decision did not contain notice, as required by the appeal procedure, that Walker had the right to access the full administrative record. However “the mere presence of a procedural irregularity is not enough to strip a plan administrator of the deferential standard of review.” Menz v. Procter & Gamble Health Care Plan, 520 F.3d 865, 869 (8th Cir.2008) (citation omitted). For a less deferential standard of review to apply, Walker must demonstrate a “serious procedural irregularity caused a serious breach of [the Plan‘s] fiduciary duty.” Torres v. UNUM Life Ins. Co. of Am., 405 F.3d 670, 679 (8th Cir.2005). Additionally, the heightened standard is only warranted where the procedural irregularity has a “connection to the substantive decision reached.” See Wade v. Aetna Life Ins. Co., 684 F.3d 1360, 1362 (8th Cir.2012) (quoting Menz, 520 F.3d at 869). Walker has offered no evidence that the Plan Administrator breached its fiduciary duty to Walker nor has she demonstrated that the Appeals Committee‘s failure to notify Walker of her right to access the administrative record was connected to the Committee‘s ultimate decision. The procedure required that the notice be included with the adverse decision, not given before the decision was issued. The heightened standard of review “is not warranted in situations such as this, where the procedural irregularities had no ‘connection to the substantive decision reached.‘” Id. (quoting Menz, 520 F.3d at 869).
IV.
For the foregoing reasons, we affirm.