E. GRADY JOLLY, Circuit Judge, dissenting, joined by JONES, SMITH, CLEMENT, and ELROD, Circuit Judges. OWEN, Circuit Judge, joins only Part I.
The material question in this en banc appeal is whether Firestone Tire & Rubber Co. v. Bruch , 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), requires de novo review of an administrators entitlement determinations; that is to say, whether an administrators findings of fact underlying the merit of a participants claim are entitled to any deference by the federal courts. Read holistically-that is, by considering the context in which Firestone came before the Supreme Court; the Courts opinion as a whole, instead of snippet by snippet; and the Supreme Courts concerns that it expressed during Firestone s oral argument- Firestone speaks to de novo review in relation to eligibility determinations and the construction of plan terms-both inherently legal questions-not to the daily grind of winnowing the merit of individual factual claims.
Moreover, the majority opinion reflects an impractical view of the administrative process. It is inconsistent with the law of trusts and misreads subsequent cases decided by the United States Supreme Court. I respectfully dissent.
I.
A.
A holistic reading of Firestone makes clear that its de novo standard of review applies only to legal questions.
The first step of understanding Firestone requires examining the facts and law that were asserted in the courts below; that is, determining what sort of case was actually before the Supreme Court. Firestone involved the construction of plan terms under three different ERISA benefits plans maintained by Firestone, 489 U.S. at 105, 109 S.Ct. 948. Firestone was the administrator and the defendant. Id. Firestone had construed the terms of its ERISA plans to deny severance benefits to former employees who worked at Firestone plants that had been sold to another company. Id. at 105-07, 109 S.Ct. 948. The former Firestone employees sued, disputing Firestones interpretation of the plan as to whether they were eligible for benefits under the terms of the plan. Id. at 106, 109 S.Ct. 948. The district court granted Firestone summary judgment, holding that Firestones decision to deny benefits was not arbitrary and capricious. Id. at 106-07, 109 S.Ct. 948. The court of appeals reversed on grounds that Firestone, as administrator of the plan, had a conflict of interest; as such, de novo-not arbitrary and capricious-was the proper standard of review for Firestones interpretation of the plan. Id. at 107, 109 S.Ct. 948. Thus, when the case reached the Supreme Court, the appeal was twofold: First, whether Firestones interpretation of the plan was subject to an arbitrary-and-capricious standard of review or to a de novo review and, second, whether a proper interpretation of the plans terms covered these former employees. The Supreme Court did not address whether the courts should defer to administrators factual decisions because the court of appeals had reserved comment on that question. See Bruch v. Firestone Tire & Rubber Co. , 828 F.2d 134, 144 n.9 (3d Cir. 1987) (It should be noted that we also do not deal here with a determination of fact by a plan administrator. We leave for another day the definition of the context, if any, in which courts should defer to such a determination.), cited in Pierre v. Conn. Gen. Life Ins. Co./Life Ins. Co. of N. Am. , 932 F.2d 1552, 1561-62 (5th Cir. 1991). Thus, it should be clear that the denial of benefits before the Supreme Court was the denial of benefits to a class of participants based on Firestones interpretation of the plan as to that class, not a denial of the underlying merit of a participants claim.
The second step of understanding the Firestone opinion requires the opinion be read as a whole and in context. The Supreme Court sets the tone of its analysis when it limits its holding to disputes based on interpretation of the plan; indeed, as noted above, these legal questions were the only issues before the Court. The Firestone Court said, The discussion which follows is limited to the appropriate standard of review in § 1132(a)(1)(B) actions challenging denials of benefits based on plan interpretations . We express no view as to the appropriate standard of review for actions under other remedial provisions of ERISA. 489 U.S. at 108, 109 S.Ct. 948 (emphasis added). The Court then said, ERISA does not set out the appropriate standard of review for actions under § 1132(a)(1)(B) challenging benefit eligibility determinations , id. at 109, 109 S.Ct. 948 (emphasis added), signaling again that it was addressing an inherently legal question. The Court then rejected the arbitrary-and-capricious standard of review (applied by the district court), saying the wholesale importation of the arbitrary and capricious standard into ERISA [was] unwarranted. Id. In doing so, the Court plainly did not suggest that a uniform standard of review applied to all decisions of the administrator. Further into its opinion, the Supreme Court clarified what it meant by plan interpretations, saying,
As this case aptly demonstrates, the validity of a claim to benefits under an ERISA plan is likely to turn on the interpretation of terms in the plan at issue. Consistent with established principles of trust law, we hold that a denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan .
Id. at 115, 109 S.Ct. 948 (emphasis added). Plan-term construction and eligibility determinations are both legal concepts that are part of plan interpretation. Neither concept addresses whether, under the undisputed provisions of the plan, a specific persons individual claim has merit.
The third step of understanding the holding of the Firestone Court involves the transcript of the oral argument before the Supreme Court. The oral argument confirms that the subject before the Court was plan interpretation. There, several Justices stated the issue in terms of whether the Court must give deference to ERISA plan administrators for their construction of plan terms. See Oral Argument at 3:05, Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989) (No. 87-1054), https://www.oyez.org/cases/1988/87-1054 (Justice White saying to Firestones lawyer that its a contractual construction problem. Or its a construction of a written instrument); id. at 4:35 (Justice Scalia saying to Firestones lawyer that its not my impression of common law trust law that if the trustee makes a questionable interpretation of the trust agreement, I wouldnt be able as one of the beneficiaries to go into court and say that interpretation is wrong. And the court would look at the trust agreement and say its up to us to interpret this trust agreement). Further, a Justice expressed that the case might be different if resolving a question involving a factual judgment, by saying:
My, my recollection of trust law ... and it obviously isnt, isnt a terribly recent one ... is that if youre talking about the ... the many things that the trustee is given discretion to do in a trust instrument, decide on the medical needs or educational needs of various beneficiaries and allocate discretionary funds among them, the courts give great deference to a trustee.
But is ... in deciding who is a beneficiary, I, I was not aware that trust law says the trustee has great discretion there.
Id. at 5:23. And the plaintiffs lawyer emphasized that this case involved only a pure question of plan interpretation and involved a different category of question from a fact question. Id. at 32:49, 36:33. Nothing in the argument signals that the Court considered that its ruling, i.e., applying de novo review to who is a beneficiary under the plan, would also apply to fact questions.
Therefore, based on the procedural history, the proper context, the oral argument, and the specific language of the opinion, it should be clear to all but the obstinate that the Firestone Court did not intend that de novo review would apply to factual questions that went before plan administrators.
B.
The majoritys argument that Firestone mandates de novo review for factual issues is further undermined by Firestone s clarity that principles of trust law apply to administrator actions. See Firestone , 489 U.S. at 111, 109 S.Ct. 948 (In determining the appropriate standard of review for actions under § 1132(a)(1)(B), we are guided by principles of trust law.). The majority seems to disregard this directive. But, inasmuch as Firestone clearly does not mandate a de novo standard of review for factual disputes, trust law controls, as instructed by Firestone .
Under trust law, trustees have measured discretion in determinations that fulfill the underlying purposes of the trust; yet, the majority, with its de novo review, grants trustees no deference in administering the quotidian claims arising under the trust document. The Second Restatement provides that trust administrators have two types of powers: (1) those conferred upon the administrator in specific words by the terms of the trust and (2) those necessary or appropriate to carry out the purposes of the trust and are not forbidden by the terms of the trust. Restatement (Second) of Trusts § 186 (Am. Law Inst. 1959). The Third Restatement explains further, When a trustee has discretion with respect to the exercise of a power, its exercise is subject to supervision by a court only to prevent abuse of discretion. Restatement (Third) of Trusts § 87 (Am. Law Inst. 2007). The general rule is that trustees have discretion with respect to the exercise of trusteeship powers, except when directed differently by the terms of the trust or when compelled by the trustees fiduciary duties. Id. cmt. a.
And turning to Scott and Ascher on Trusts , we find, A trustees powers ordinarily are discretionary, unless the terms of the trust or applicable law makes them mandatory. 3 A. Scott & M. Ascher, Scott and Ascher on Trusts § 18.2, p. 1338 (5th ed. 2007). Trustees have considerable discretion in determining what is necessary for any given beneficiarys support, and courts ensure only that trustees do not exceed the limits of their discretion. Id.
§ 18.2.6, at 1362. Indeed, [t]he court will not substitute its own judgment for that of the trustee because [t]he mere fact that the court would have exercised the power differently is not a sufficient reason for the court to interfere. Id. § 18.2, at 1340. Instead, the court may check the trustees powers by examining whether the trustee (1) abused its discretion, (2) acted dishonestly or in bad faith, and (3) exercised its reasonable judgment when exercising its powers. Id. § 18.2.2-18.2.6, at 1350-67.
As we have earlier noted, the Firestone Court expressly said that its decision was guided by principles of trust law. Here, whether a covered beneficiary has presented facts to support the benefits she individually claims is a core discretionary power that is necessary or appropriate to the routine administration of plans. As we said in Pierre , [i]t is indisputable that an ERISA trustee, by its very nature, is granted some inherent discretion, i.e., authority to control and manage the operation and administration of the plan. 932 F.2d at 1558 (quoting 29 U.S.C. § 1102(a)(1) ). The majority would not allow a smidgeon of deference to the administrator, a position that is contrary to the guiding advice of Firestone .
II.
We leave Firestone proper for a moment and turn our attention to recent Supreme Court cases also dealing with the administration of ERISA plans. In particular, two recent Supreme Court opinions strongly support that the Supreme Court would conclude that Pierre correctly states the law: Metropolitan Life Insurance Company v. Glenn , 554 U.S. 105, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008), and Conkright v. Frommert , 559 U.S. 506, 130 S.Ct. 1640, 176 L.Ed.2d 469 (2010). Conkright -not cited by the majority-reaffirmed that in § 1132(a)(1)(B) cases, we should look to the principles of trust law. See 559 U.S. at 512, 130 S.Ct. 1640 (In determining the proper standard of review when a plan administrator operates under a conflict of interest [in Glenn ], we again looked to trust law, the terms of the plan at issue, and the principles of ERISA-plus, of course, our precedent in Firestone .).
The Supreme Courts opinion in Glenn supports Pierre s understanding of Firestone . In Glenn , the Court said,
We do not believe that Firestone s statement implies a change in the standard of review, say, from deferential to de novo review. Trust law continues to apply a deferential standard of review to the discretionary decisionmaking of a conflicted trustee, while at the same time requiring the reviewing judge to take account of the conflict when determining whether the trustee, substantively or procedurally, has abused his discretion. We see no reason to forsake Firestone s reliance upon trust law in this respect.
554 U.S. at 115-16, 128 S.Ct. 2343 (internal citations omitted) (citing Firestone , 489 U.S. at 111-15, 109 S.Ct. 948 ; Restatement § 187, cmts. d-j; Scott and Ascher on Trusts § 18.2, at 1342-44). The Court then emphasized that it would not overturn Firestone by adopting a rule that in practice could bring about near universal review by judges de novo-i.e. , without deference-of the lions share of ERISA plan claims denials, because it believed that Congress would have said more about such a standard of review if it wanted the courts to have wholesale review. Id. at 116, 109 S.Ct. 948. The Glenn Court quoted Justice Scalias pithy and colorful admonition that Congress does not hide elephants in mouseholes, id. (quoting Whitman v. Am. Trucking Assns. , 531 U.S. 457, 468, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001) ), i.e., if Congress had intended a radical departure from traditional principles of trust law, it most certainly would have not hidden it in statutory interstices.
Thus, the majoritys view brushes aside the admonition of Glenn that Firestone cannot be read to endorse near universal review of all plan denials brought to our district courts. Other circuits may have interpreted Firestone in their own way fifteen to twenty years ago, but, today, it should be understood that, in the light of more recent Supreme Court cases, Firestone did not change ERISAs application of trust law.
These Supreme Court cases (each decided after the decisions of the other circuit courts to the contrary) further undermine the rationale offered by the majority to strip the administrator of discretionary respect. Other circuits, and now the majority, have acknowledged that federal courts are required generally to pay deference to administrative decisions. But, the majority argument goes, plan administrators do not have the expertise of administrative agencies, and ERISA administrators are not unbiased factfinders. See Maj. Op. at 252-53; Walker v. Am. Home Shield Long Term Disability Plan , 180 F.3d 1065, 1070 (9th Cir. 1999) ; Ramsey , 77 F.3d at 205 ; Luby , 944 F.2d at 1183-84 & n.7. It follows, says the majority, that the usual deference to administrators is not warranted for ERISA administration. See Maj. Op. at 252-53.
Never mind that this concern, too, was addressed by Glenn . The Supreme Court favorably compared ERISAs review of benefits decisions to review of administrative agencies decisions by observing,
This kind of review is no stranger to the judicial system. Not only trust law, but also administrative law, can ask judges to determine lawfulness by taking account of several different, often case-specific, factors, reaching a result by weighing all together.
Glenn , 554 U.S. at 117, 128 S.Ct. 2343. For this statement, the Court cited two administrative law decisions- Citizens to Preserve Overton Park, Inc. v. Volpe , 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) and Universal Camera Corp. v. NLRB , 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951) -in which the Supreme Court reviewed a governmental decision and an agencys factfindings for abuse of discretion. And Glenn itself dealt with the biggest concern arising from plan administrators-conflicts of interest-by instructing that whenever a district court reviews a plan administrator for abuse of discretion, that court must consider the extent of any conflict. Glenn , 554 U.S. at 112, 117, 128 S.Ct. 2343. Conkright , although discussing a plan with a clause that provided the administrator with discretionary review, similarly endorsed providing deference to ERISA plan administrators because the practice promotes efficiency by encouraging resolution of benefits disputes through internal administrative proceedings rather than costly litigation. 559 U.S. at 517, 130 S.Ct. 1640.
III.
The majoritys moving force for overruling Pierre is that we should join the other circuits because ERISA must be uniformly applied among the federal circuit and district courts. Indeed, the Supreme Court in Conkright allowed: ERISA induc[es] employers to offer benefits by assuring a predictable set of liabilities, under uniform standards of primary conduct and a uniform regime of ultimate remedial orders and awards when a violation has occurred. Id. (alteration in original) (quoting Rush Prudential HMO, Inc. v. Moran , 536 U.S. 355, 379, 122 S.Ct. 2151, 153 L.Ed.2d 375 (2002) ).
But the other circuits, which declined to follow Pierre , and which the majority would have us reverse our course and follow, are outdated by Glenn and Conkright . And still further, the uniformity that might result from reversing Pierre is illusory. First, different circuits have different standards for reviewing evidence. Some circuits pay little or no attention to the administrative record and virtually allow trial de novo by opening discovery in district court. See Mongeluzo v. Baxter Travenol Long Term Disability Ben. Plan , 46 F.3d 938, 943 (9th Cir. 1995) (We agree with the Third, Fourth, Seventh, Eighth, and Eleventh Circuits that new evidence may be considered under certain circumstances to enable the full exercise of informed and independent judgment.). Other circuits, like ours, are limited to the record that the administrator considered. See Maj. Op. at 256 (limiting district court proceedings to the administrative record); Perry v. Simplicity Eng., a Div. of Lukens Gen. Indus., Inc. , 900 F.2d 963, 966 (6th Cir. 1990) (preventing district courts from considering evidence outside the record).
Second, some states have anti-discretionary-clause statutes-like Texas Insurance Code § 1701.062(a) that the defendants decided not to challenge here-that do not allow plans to grant discretionary authority to plan administrators, even though the Supreme Court has relied upon discretionary clauses and approved of them multiple times. See Conkright , 559 U.S. at 517, 130 S.Ct. 1640 (stating that deference to plan administrators promotes efficiency, predictability, and uniformity); Heimeshoff v. Hartford Life & Acc. Ins. Co. , 571 U.S. 99, 134 S.Ct. 604, 614, 187 L.Ed.2d 529 (2013) (approving the use of discretionary clauses because participants are not likely to value judicial review of plan determinations over internal review). Thus, a claimant-in a case involving an ERISA plan with a discretionary clause-will have a different standard of review depending on whether she brings an action in a state in which she resides or a state in which a breach occurred. See 29 U.S.C. § 1132(e)(2) (allowing ERISA suits to proceed in any federal district court where the plan is administered, where the breach took place, or where a defendant resides or may be found). For example, an ERISA plan enforced in Louisiana, which does not have a state statute prohibiting discretionary clauses, will have a different standard of review than if it were enforced in Texas, which prohibits discretionary clauses.
If uniformity were the Holy Grail to be pursued among federal courts and if the instant opinion accomplished uniformity, the majority opinion would be more persuasive. But, although I agree that ERISA uniformity is a worthy consideration, the majoritys opinion hardly establishes greater procedural (or substantive) uniformity than if we continued to apply Pierre . Instead, we are left with a strained argument for uniformity and the illusion that reversing Pierre somehow accomplishes uniformity throughout the federal courts of the country.
IV.
To sum up: the misguided majority upsets twenty-six years of precedent in overruling Pierre , and for no compelling reason. In doing so, it ignores the practicality of administrative and trust law, misreads Firestone , and is swept up by outdated cases of other circuits. Respectfully, I dissent.
PRISCILLA R. OWEN, Circuit Judge, dissenting:
The Supreme Court has not decided whether a de novo or an abuse of discretion standard of review applies when an ERISA plan administrator considers conflicting expert opinions and denies coverage for the continued hospitalization of an ERISA welfare-plan beneficiary. However, if the principles of trust law are applied, as the Supreme Court has repeatedly said that they should be, then an abuse of discretion standard is applicable in the present case. I would therefore affirm the judgment of the district court.
Ariana M. brought the present action under 29 U.S.C. § 1132(a)(1)(B). The Supreme Court explained in Firestone Tire and Rubber Co. v. Bruch that [i]n determining the appropriate standard of review for actions under § 1132(a)(1)(B), we are guided by principles of trust law. The only issue before the Supreme Court in Firestone was the standard of review that should apply to a plan administrators interpretation of the plan. The Court held that a de novo standard of review applied, explaining, in part, that [t]he trust law de novo standard of review is consistent with the judicial interpretation of employee benefit plans prior to the enactment of ERISA. The Court reasoned that [a]ctions challenging an employers denial of benefits before the enactment of ERISA were governed by principles of contract law, and that [i]f the plan did not give the employer or administrator discretionary or final authority to construe uncertain terms, the court reviewed the employees claim as it would have any other contract claim-by looking to the terms of the plan and other manifestations of the parties intent. But the Court looked primarily to the law governing trusts in reaching its decision.
In Firestone , the Court considered the Restatement (Second) of Trusts (1959) (hereinafter the Restatement), which was the current version of the Restatement of Trusts at the time of ERISAs enactment. The actual holding in Firestone was entirely consistent with Section 201, comment b, of the Restatement, which provides that [t]he extent [of a trustees] duties and powers is determined by the trust instrument and the rules of law which are applicable, and not by his own interpretation of the instrument or his own belief as to the rules of law. Accordingly, under the Restatement, unless a trust instrument provides to the contrary, a trustees interpretation of the terms of the trust would be subject to de novo review by a court. The Supreme Courts holding in Firestone that an abuse of discretion standard should be applied to an ERISA administrators interpretation of the plan only when the plan grants discretion to the administrator to interpret the plan is in line with Section 201, comment b.
However, the Restatement makes clear in Section 187, comment a, that except to the extent to which its exercise is required by the terms of the trust or by the principles of law applicable to the duties of trustees, a trustees exercise of power is discretionary. Other comments in Section 187 of the Restatement support the conclusion that a trustees decision as to whether a beneficiarys condition entitles her to benefits from the trust is within the trustees discretion. Comment c provides that a trustee has discretion to determine the amount necessary for a beneficiarys support. The Restatement makes clear that when a power is committed to the discretion of a trustee, his actions or inactions are to be judged by an abuse of discretion standard. Comment d sets forth the [f]actors in determining whether there is an abuse of discretion. Comment e explains when there is [n]o abuse of discretion.
Ariana M.s claim that she was entitled to payment for continued hospitalization as a beneficiary under an ERISA welfare benefits plan necessarily involves the exercise of judgment by the ERISA plan administrator in analyzing conflicting expert opinions. This is the type of decision that would be committed to the discretion of a trustee under trust law, as expressed in the Restatement.
Though the Supreme Court has spoken in broad terms when it has said that a de novo standard of review applies to a courts review of the denial of [ERISA] plan benefits unless the plan grants the plan administrator discretionary authority to determine eligibility for [ERISA] benefits, the Courts decisions have involved either a plan administrators interpretation of the plan (not an administrators decision as to whether, as a factual matter, the beneficiarys condition required a specific course of treatment), or a plan that expressly granted the plan administrator discretionary authority to determine whether an employees claim for benefits is valid. If we are to accept the Supreme Courts repeated statements that principles of trust law apply when a court reviews the denial of ERISA benefits, then the determination at issue in the present case was committed to the discretion of the plan administrator, and an abuse of discretion standard should apply.
Because I would affirm the district courts judgment, I respectfully dissent.
JENNIFER WALKER ELROD, Circuit Judge, joined by JOLLY and CLEMENT, Circuit Judges, dissenting:
I write separately to address the decision to remand this case to the district court. This is a waste of judicial resources because there is no genuine issue of material fact and the record establishes that the plan administrator did not err in declining to cover Arianas additional partial hospitalization. I would affirm the district courts judgment in favor of Humana, regardless of whether we apply the de novo standard adopted by the majority opinion today or the standard we previously adopted in Pierre v. Connecticut General Life Insurance Co./Life Insurance Co. of North America , 932 F.2d 1552 (5th Cir. 1991).
In ERISA cases, [w]e review a district courts grant of summary judgment de novo, applying the same standards as the district court. Green v. Life Ins. Co. of N. Am. , 754 F.3d 324, 329 (5th Cir. 2014) (quoting Cooper v. Hewlett-Packard Co. , 592 F.3d 645, 651 (5th Cir. 2009) ). Summary judgment is appropriate when there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
There is no genuine issue of material fact on this record that precludes summary judgment. At oral argument, Arianas counsel could point to only one possible area of disputed fact. Arianas counsel seemed to suggest that there is a genuine dispute as to whether Dr. Hartman was qualified to make a decision about the necessity of Arianas continued partial hospitalization. See Oral Argument at 7:25, Ariana M. v. Humana Health Plan of Tex., Inc. , No. 16-20174 (5th Cir. argued Sept. 19, 2017) (en banc). When asked what evidence supported her position that Dr. Hartman was not qualified, Arianas counsel referenced a deposition of Dr. Hartman. Id. But the district court did not consider this deposition testimony because depositions taken in earlier actions may only be used in a later action involving the same subject matter between the same parties. Ariana M. v. Humana Health Plan of Tex., Inc. , 163 F.Supp.3d 432, 439 n.1 (S.D. Tex. 2016) (quoting Fed. R. Civ. P. 32(a)(8) ). And Ariana did not appeal the district courts decision on this evidentiary issue. See Davis v. Maggio , 706 F.2d 568, 571 (5th Cir. 1983) (Claims not pressed on appeal are deemed abandoned.).
Furthermore, in accordance with Vega v. National Life Insurance Services, Inc. , 188 F.3d 287 (5th Cir. 1999) (en banc), overruled on other grounds by Metro. Life Ins. Co. v. Glenn , 554 U.S. 105, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008), left intact by the majority opinion, the district court is constrained to the evidence before the plan administrator, even in the face of disputed facts. 188 F.3d at 299. Dr. Hartmans deposition testimony was not part of the administrative record. See Ariana M. , 163 F.Supp.3d at 443 n.2. Thus, Ariana points to no evidence in the record in support of such a dispute.
In her initial brief to the panel, Ariana seemed to suggest that the fact that her doctors disagreed with the assessments of Humanas reviewing doctors regarding the proper level of care for Ariana created a fact issue. However, the Supreme Court has held, in an opinion issued after Firestone Tire & Rubber Co. v. Bruch , 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), that nothing in ERISA suggests that plan administrators must accord special deference to the opinions of treating physicians. Nor does the Act impose a heightened burden of explanation on administrators when they reject a treating physicians opinion. Black & Decker Disability Plan v. Nord , 538 U.S. 822, 831, 123 S.Ct. 1965, 155 L.Ed.2d 1034 (2003). Thus, this court need not defer to the opinions of Arianas doctors, and the fact that they conflict with those of Humanas doctors does not create a fact issue.
For the reasons discussed in detail in the district courts opinion, see Ariana M. , 163 F.Supp.3d at 442-43, the plan administrator did not err in deciding that Ariana M.s continued partial hospitalization was not medically necessary. As the district court explained, Dr. Prabhu and Dr. Hartman-board-certified psychiatrists-both did peer-to-peer reviews with Ariana M.s health-care professionals and reviewed her medical files to apply the plans terms. They set out their decisions in written reports that cited the Mihalik criteria and explained why Ariana M. failed to meet several prerequisites for continued treatment under the plan. Ariana M. , 163 F.Supp.3d at 442.
The district courts grant of summary judgment should be affirmed.
The majority mistakenly relies on this portion of the opinion to say that Firestone applies de novo review to both factual and legal assessments by plan administrators. See Maj. Op. at 251-52, 254-55. But the majority makes a mistake by conflating eligibility, i.e., coverage determinations, with entitlement determinations, i.e., claim merits, as do our sister circuits. See Maj. Op. at 252 (Why would a discretionary clause be needed ... to escape de novo review if eligibility determinations were not subject to that standard of review as a default matter? (emphasis added) ); Kinstler v. First Reliance Standard Life Ins. Co. , 181 F.3d 243, 250 (2d Cir. 1999) (stating that the court of appeals must rely on the Supreme Courts use of eligibility for benefits, which is a distinct issue from construing the plans terms); Luby v. Teamsters Health, Welfare, & Pension Tr. Funds , 944 F.2d 1176, 1183 (3d Cir. 1991) (stating that the explicit reference to eligibility means that the Firestone Court meant to cover entitlement decisions). This view is misguided. As evidenced by its analogy of ERISA to contract law and by its statement that ERISA was meant to protect contractually defined benefits, Firestone , 489 U.S. at 113, 109 S.Ct. 948 (quoting Mass. Mut. Life Ins. Co. v. Russell , 473 U.S. 134, 148, 105 S.Ct. 3085, 87 L.Ed.2d 96 (1985) ), the Supreme Courts discussion of eligibility concerns whether the plan covered the person or claim at issue, not whether the covered persons factual context entitled her to benefits under the plan or whether the covered claim had merit.
We may illustrate this distinction by considering the case at hand. Here, it is clear that Ariana M is an eligible participant and that her claim is eligible under the terms of the group health plan covering mental illness. If the administrator argued otherwise, de novo review would be used, like in any other contract dispute, to determine whether Arianas claim is contractually barred. But that is not the appeal here. Instead, Ariana asks us to reevaluate the facts upon which the administrator denied the merits of her claim-that is to say, the factual claim of whether her treatment was medically necessary; such a question requires, not legal analysis, but credibility determinations, particularly among the parties respective experts. The majority would grant the federal courts the authority to relitigate in federal court that credibility determination, robbing the administrator of all deference to its decision. Such federal court authority does not have its source anywhere in Firestone .
The plaintiffs also conceded in their brief that they were not challenging the exercise of any authority which is inherently discretionary in nature. Brief for the Respondents, Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989) (No. 87-1054), at 24. And they agreed with Firestone that courts should defer to those who have some amount of decisionmaking authority. Id.
The majority sees it otherwise, adopting the Seventh Circuits view that Firestone reversed the presumption for all plan-administrator decisions unless a plan term gives the administrator discretion. See Maj. Op. at 252; Ramsey v. Hercules Inc. , 77 F.3d 199, 204 (7th Cir. 1996). Under that view, Firestone essentially eliminated all discretionary administrable powers-defined as those necessary or appropriate to carry out the purposes of the trust and are not forbidden by the terms of the trust, Restatement (Second) of Trusts § 186(b) -and permitted trustees discretionary powers only when conferred. See id. § 186(a). But this view is mistaken and departs from Firestone s command to use traditional trust law principles when examining § 1132(a)(1)(B). See Firestone , 489 U.S. at 110, 109 S.Ct. 948.
And when faced with this precise question-whether Firestone mandates de novo review for factual entitlement decisions-the Supreme Court has denied certiorari twice in the past decade. See Truitt v. UNUM Life Ins. Co. of Am. , --- U.S. ----, 134 S.Ct. 1761, 188 L.Ed.2d 593 (2014) ; Dutka v. AIG Life Ins. Co. , 559 U.S. 970, 130 S.Ct. 1686, 176 L.Ed.2d 179 (2010).
Our precedent, too, has said that review of ERISA benefits determinations is like review of administrative agency decisions. See Crosby v. La. Health Serv. & Indem. Co. , 647 F.3d 258, 264 (5th Cir. 2011) ([O]ur review of an ERISA benefits determination is essentially analogous to a review of an administrative agency decision....). And with good reason: [F]ull review of the motivations behind every plan administrators discretionary decisions would move toward a costly system in which Article III courts conduct wholesale reevaluations of ERISA claims and would seriously undermine ERISAs goal of resolving claims efficiently and inexpensively. Id. (quoting Semien v. Life Ins. Co. of N. Am. , 436 F.3d 805, 814-15 (7th Cir. 2006) ).
The majority seems to lean heavily on conflicts of interest to justify de novo review for all decisions of administrators. See Maj. Op. at 252, 252-53. But conflicts of interest already must be considered as a factor in every § 1132(a)(1)(B) case, whether the standard of review is de novo or abuse of discretion, because of the requirements set out in Glenn . See 554 U.S. at 117, 128 S.Ct. 2343.
The last circuit squarely to decide this issue did so 15 years ago in 2003. See Shaw v. Conn. Gen. Life Ins. Co. , 353 F.3d 1276, 1285-86 (11th Cir. 2003) ; Riedl v. Gen. Am. Life Ins. Co. , 248 F.3d 753, 756 (8th Cir. 2001) ; Kinstler , 181 F.3d at 251 ; Walker , 180 F.3d at 1069 ; Rowan v. Unum Life Ins. Co. of Am. , 119 F.3d 433, 435 (6th Cir. 1997) ; Ramsey , 77 F.3d at 204 ; Luby , 944 F.2d at 1183-84.
I fully agree with the majoritys decision to limit judicial review to the administrative record as we decided in Vega v. National Life Insurance Services, Inc. , 188 F.3d 287 (5th Cir. 1999) (en banc), overruled on other grounds by Metro. Life Ins. Co. v. Glenn , 554 U.S. 105, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008).
The majority, in reference to the dissent, argues that the dissent is mistaken in its understanding of what Firestone referred to as eligibility for benefits. See Maj. Op. at 251-52 n.4.
The majority is, of course, quite correct that our precedent has been inconsistent by using eligibility in some circumstances, while using entitlement in other circumstances, to mean determinations of factual questions. Compare Ellis v. Liberty Life Assurance Co. of Boston , 394 F.3d 262, 266 (5th Cir. 2004) (describing that power as discretion to determine eligibility), with Perdue v. Burger King Corp. , 7 F.3d 1251, 1254 (5th Cir. 1993) (stating that the employees claim failed because he did not allege entitlement to benefits within the eligibility provision); Graham v. Metro. Life Ins. Co. , 349 Fed.Appx. 957, 961 & n.5 (5th Cir. 2009) (stating that an employee failed to prove her entitlement when examining a plan where the employer had discretionary authority ... to determine eligibility for and entitlement to Plan benefits). The relevant question, however, is not the confused use of eligibility, but instead what the Firestone Court meant by eligibility determinations. Given the context in which the case was decided and the language of the opinion, eligibility means qualification to claim entitlement to benefits under the plan. One may be eligible for an entitlement while not being factually entitled to the benefit. In short, eligibility precedes entitlement. One may be eligible to assert a statutory right, but only entitled to the benefits of the right upon a factual showing.
Moreover, ERISAs text gainsays the majoritys argument that eligibility and entitlement are fungible terms in the context of ERISA. Specifically, § 1002(7) provides that a participant is one who is or may become eligible to receive a benefit. But § 1002(7) addresses matters of coverage; that is, eligibility. On the other hand, 29 U.S.C. § 1002(8), under which Ariana M qualifies as a beneficiary, speaks in terms of entitlement to benefits. Specifically, § 1002(8) speaks of a beneficiary as one who is or may become entitled to a benefit thereunder. Indeed, these juxtaposed provisions demonstrate that eligibility and entitlement are distinct terms: § 1002(7) defines a participant as one who is or may become eligible while § 1002(8) defines a beneficiary as one who is or may become entitled .
Finally, the majority criticizes the dissent for not addressing Rush Prudential HMO, Inc. v. Moran . But Rush Prudential is an inapt case for deciding the specific issue of this case. First, it predates Glenn and Conkright , both of which reinforce the dissents understanding of Firestone . Second, Rush Prudential is a preemption case that decided whether a state can prohibit[ ] designing an insurance contract so as to accord unfettered discretion to the insurer to interpret the contracts terms . 536 U.S. at 386, 122 S.Ct. 2151. It held that this type of statute was allowed because, like an insurance contract, the focus was on a legal question-whether a state statute could modify a plans form of legal analysis and not whether the specific person was entitled to money for medical treatment. Third, Rush Prudential , as a preemption decision, had nothing to do with enforcement of § 1132(a)(1)(B), the statute at issue here. Consequently, nothing in Rush Prudential s holding depended on the language cited by the majority to support its position today. To the point, the case serves neither the majority nor the dissent.
29 U.S.C. § 1132(a)(1)(B) provides:
(a) Persons empowered to bring a civil action
A civil action may be brought-
(1) by a participant or beneficiary-
(B) to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan....
489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989).
Id. at 111, 109 S.Ct. 948 (citing Cent. States, Se. and Sw. Areas Pension Fund v. Cent. Transp., Inc. , 472 U.S. 559, 570, 105 S.Ct. 2833, 86 L.Ed.2d 447 (1985) ).
Id . at 108, 109 S.Ct. 948 (The discussion which follows is limited to the appropriate standard of review in § 1132(a)(1)(B) actions challenging denials of benefits based on plan interpretations. We express no view as to the appropriate standard of review for actions under other remedial provisions of ERISA.).
Id . at 112, 109 S.Ct. 948.
Id . at 112-113, 109 S.Ct. 948 (citing cases).
Id . at 111, 112, 113, 109 S.Ct. 948 ; see also Metro. Life Ins. Co. v. Glenn , 554 U.S. 105, 128, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008) ( Scalia , J., dissenting) (noting that the Firestone decision [c]it[ed] the Restatement of Trusts current at the time of ERISAs enactment); Employment Retirement Income Security Act of 1974, Pub. L. 93-406, Title I, § 502, 88 Stat. 829 (codified as amended at 29 U.S.C. §§ 1001 -1461 ).
Restatement (Second) of Trusts § 201 cmt. b (1959), which provides:
b. Mistake of law as to existence of duties and powers. A trustee commits a breach of trust not only where he violates a duty in bad faith, or intentionally although in good faith, or negligently, but also where he violates a duty because of a mistake as to the extent of his duties and powers. This is true not only where his mistake is in regard to a rule of law, whether a statutory or common-law rule, but also where he interprets the trust instrument as authorizing him to do acts which the court determines he is not authorized by the instrument to do. In such a case, he is not protected from liability merely because he acts in good faith, nor is he protected merely because he relies upon the advice of counsel. Compare § 297, Comment j. If he is in doubt as to the interpretation of the instrument, he can protect himself by obtaining instructions from the court. The extent of his duties and powers is determined by the trust instrument and the rules of law which are applicable, and not by his own interpretation of the instrument or his own belief as to the rules of law.
See Metro. Life Ins. Co. , 554 U.S. at 111, 128 S.Ct. 2343.
Restatement (Second) of Trusts § 187 cmt. c (1959).
Id . at cmt. c, which provides in its entirety that:
c. Kinds of discretionary powers. The rule stated in this Section is applicable both to the powers of managing the trust estate conferred upon the trustee either in specific words or otherwise, and also to such powers as may be conferred upon him to determine the disposition of the beneficial interest. Thus, it is applicable not only to powers to lease, sell or mortgage the trust property or to invest trust funds, but also to powers to allocate the beneficial interest among various beneficiaries, to determine the amount necessary for a beneficiarys support, or to terminate the trust.
Id . at cmt. d:
d. Factors in determining whether there is an abuse of discretion. In determining the question whether the trustee is guilty of an abuse of discretion in exercising or failing to exercise a power, the following circumstances may be relevant: (1) the extent of the discretion conferred upon the trustee by the terms of the trust; (2) the purposes of the trust; (3) the nature of the power; (4) the existence or non-existence, the definiteness or indefiniteness, of an external standard by which the reasonableness of the trustees conduct can be judged; (5) the motives of the trustee in exercising or refraining from exercising the power; (6) the existence or nonexistence of an interest in the trustee conflicting with that of the beneficiaries.
Id . at cmt. e:
e. No abuse of discretion. If discretion is conferred upon the trustee in the exercise of a power, the court will not interfere unless the trustee in exercising or failing to exercise the power acts dishonestly, or with an improper even though not a dishonest motive, or fails to use his judgment, or acts beyond the bounds of a reasonable judgment. The mere fact that if the discretion had been conferred upon the court, the court would have exercised the power differently, is not a sufficient reason for interfering with the exercise of the power by the trustee. Thus, if the trustee is empowered to apply so much of the trust property as he may deem necessary for the support of the beneficiary, the court will not interfere with the discretion of the trustee on the ground that he has applied too small an amount, if in the exercise of his judgment honestly and with proper motives he applies at least the minimum amount which could reasonably be considered necessary, even though if the matter were left to the court determine in its discretion it might have applied a larger amount. So also, the court will not interfere on the ground that the trustee has applied too large an amount, if in the exercise of his judgment honestly and with proper motives he applies an amount not greater than a reasonable person might deem necessary for the beneficiarys support, although the amount is greater than the court would itself have awarded.
Metro. Life Ins. Co. v. Glenn , 554 U.S. 105, 111, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008).
Id . (emphasis omitted).
See Firestone , 489 U.S. at 110, 109 S.Ct. 948.
Metropolitan Life Ins. Co. , 554 U.S. at 109, 128 S.Ct. 2343.
Later during the argument, however, Arianas counsel seemed to concede that there is no genuine dispute of material fact, stating that this court could decide whether these services were primarily for the convenience of Ariana M. or were for her treatment, if this court wants to decide that.... Oral Argument at 58:43, Ariana M. , No. 16-20174 (5th Cir. argued Sept. 19, 2017) (en banc).