M. v. Premera Blue Cross ( 2021 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS April 5, 2021
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
LYN M.; DAVID M., as Legal Guardians
of L.M., a minor,
Plaintiffs - Appellants,
v. No. 18-4098
(D.C. No. 2:17-CV-01152-BSJ)
PREMERA BLUE CROSS; MICROSOFT (D. Utah)
CORPORATION WELFARE PLAN,
Defendants - Appellees.
-----------------------
AMERICAN BENEFITS COUNCIL,
Movant.
_________________________________
ORDER
_________________________________
Before BRISCOE, LUCERO, HARTZ, HOLMES, BACHARACH, PHILLIPS,
MORITZ, EID, and CARSON, Circuit Judges*†
________________________________
This matter is before us on the Petition for Panel Rehearing and Rehearing En
Banc filed by Premera Blue Cross (“Premera”). We also have a response from Appellant.
*
The Honorable Timothy M. Tymkovich, the Honorable Scott M. Matheson, and
the Honorable Carolyn B. McHugh are recused and did not participate in the
consideration of the rehearing petition.
†
Although the Honorable Mary Beck Briscoe and the Honorable Carlos F. Lucero
took senior status prior to the entry of this order, voting in the poll called on the rehearing
petition was completed while they were in active status.
Pursuant to Federal Rule of Appellate Procedure 40, Premera’s request for panel
rehearing is denied by a majority of the original panel members. Judge Eid would grant
panel rehearing.
Both the petition and the response were transmitted to all non-recused judges of
the court who are in regular active service. A poll was called and did not carry.
Consequently, Premera’s request for en banc rehearing is denied pursuant to Federal Rule
of Appellate Procedure 35.
Judges Hartz, Eid and Carson would grant en banc rehearing. Judge Bacharach has
filed a separate concurrence in support of the denial of en banc rehearing, which is joined
by Judges Briscoe and Lucero. Judge Eid has filed a separate dissent, which is joined by
Judges Hartz and Carson.
The American Benefits Council’s motion for leave to file an amicus curiae brief in
support of Premera’s rehearing petition is granted.
Entered for the Court,
CHRISTOPHER M. WOLPERT, Clerk
2
Lyn M., et al. v. Premera Blue Cross, et al., No. 18-4098
BACHARACH, J., concurring in the denial of en banc rehearing, joined by
BRISCOE, J., and LUCERO, J.
Our dissenting colleague urges en banc consideration, expressing
concern that the panel majority has “imposed a new duty of ERISA plan
administrators to notify plan members ‘that undistributed, inspectable
documents could affect the scope of judicial review.’” Dissent from Denial
of En Banc Rehearing at 1 (quoting Lyn M. v. Premera Blue Cross, 966
F.3d 1061, 1067 (10th Cir. 2020) (Eid, J. dissenting)). This concern
reflects a misconception of the panel opinion.
1. The panel opinion does not expand a plan administrator’s duties
under ERISA.
The panel never addressed a plan administrator’s duty under ERISA
to notify members about a plan’s provisions. The majority instead
addressed only (1) the standard of review when a member sues and (2) the
plan administrator’s error under any standard of review by failing to apply
the medical policy’s criteria. Our dissenting colleague addresses the first
issue, having expressed no opinion in her panel dissent on the second
issue.
That standard of review comes from federal common law, not ERISA.
See Gilbertson v. Allied Signal, Inc., 328 F.3d 625, 632 (10th Cir. 2003)
(“Because ERISA is silent with respect to the standard of review, the court
[in Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989)] looked to
applicable common law principles to decide the question.”). Under the
federal common law, a reservation of discretionary authority requires
notice to plan participants. See, e.g., Rodriguez-Lopez v. Triple-S Vida,
Inc., 850 F.3d 14, 20 (1st Cir. 2017) (stating that the arbitrary–and–
capricious standard applies “[i]f the plan gives the plan participant or
covered beneficiary adequate notice of [a reservation of discretionary
authority]”).
The plan administrator packed discretion into a document called the
“Microsoft Corporation Welfare Plan.” But this document was never
mentioned in any of the materials supplied to participants. So they had no
way of knowing that this document existed.
Our dissenting colleague argues that participants could have learned
about the Microsoft Corporation Welfare Plan by asking to examine any
documents relevant to the claims. But how would participants have known
to ask for this document? The summary plan description never mentioned
the existence of the Microsoft Corporation Welfare Plan (the document
providing for discretionary authority) or suggested that another document
existed that might reserve discretionary authority. And even if a participant
had requested examination of all relevant documents, the request may have
lacked enough specificity to trigger production of any documents. See Lyn
M. v. Premera Blue Cross, 966 F.3d 1061, 1066 (10th Cir. 2020) (stating
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that to exercise the right to examine plan documents, participants “must
clearly identify whatever they want to examine”).
The panel majority thus concluded that the plan administrator had not
provided notice of the reservation of its discretionary authority. Lyn M. v.
Premera Blue Cross, 966 F.3d 1061, 1068 (10th Cir. 2020). Given the lack
of notice, the panel majority determined that on remand, the district court
should conduct de novo review of the denial of plan benefits. Id.Our dissenting colleague disagrees, chiding the panel majority for
expanding the plan administrator’s statutory duties to provide notice. But
the majority has not addressed the plan administrator’s statutory duties to
provide notice. Given the absence of any discussion of the issue, the panel
majority could not possibly have expanded the plan administrator’s
statutory duties.
The panel opinion simply holds that
 the federal common law’s arbitrary–and–capricious standard of
review applies only if participants obtain notice of the plan
administrator’s discretionary authority,
 notice requires at least something that would alert participants
to the existence of a document reserving discretion to the plan
administrator, and
 such notice was absent here.
This case–specific, fact–bound opinion does not expand a plan
administrator’s duties under ERISA.
3
2. The panel appropriately considered existing case law to determine
whether the plan administrator can furnish notice through a
secret document containing clear language.
Our dissenting colleague also criticizes the panel majority for relying
on cases addressing the sufficiency of notice as to discretionary authority.
As our colleague notes, other circuits have held that the nature of
discretionary authority requires clarity in the plan language. But our
circuit is the first to consider whether notice exists when clear plan
language exists in a document that participants would have no way of
knowing about.
Clear language of discretionary authority meant little if participants
had no way to know that the document even existed. If notice is required
through clear language, surely this clear language cannot be packed into a
secret document.
3. The panel opinion does not conflict with the Second Circuit’s
opinion in Thurber.
Our dissenting colleague also contends that the panel opinion
conflicts with Thurber v. Aetna Life Insurance Co., 712 F.3d 654 (2d Cir.
2013). I respectfully disagree. In Thurber, a plan participant argued that de
novo review was warranted because she had not received plan documents
giving discretion to the plan administrator. 712 F.3d at 659. The Second
Circuit rejected the argument for de novo review based on a lack of actual
notice. Id. at 659–60.
4
Here the panel opinion never addressed the need for actual notice of
documents providing for discretion. Instead the issue was whether the plan
administrator could provide notice through a secret document. That issue
had not existed in Thurber. There the participant had acknowledged that
the summary plan description (a document required by ERISA itself)
reserved discretionary authority to the plan administrator. Id. at 658; see
29 U.S.C. § 1022(a) (requiring the summary plan description to be
furnished to participants). The participant in Thurber argued that she had
not received a copy of the summary plan description, not that she had no
way of knowing about the existence of this document. The Second Circuit
did not address the situation presented to our panel, where participants had
no way of knowing about the document reserving discretion.
Under the reasoning of the panel opinion here, the plan administrator
could easily provide notice by informing participants that their rights and
responsibilities were governed by the Microsoft Corporation Welfare Plan.
That’s a far cry from requiring actual notice of the plan administrator’s
discretionary authority.
4. The panel opinion doesn’t create a slippery slope, devoid of
limiting principles.
Our dissenting colleague also expresses concern that the panel
opinion will create a slippery slope without limiting principles to prevent
expansion of plan administrators’ duties to provide notice. For example,
5
our colleague fears that the panel opinion could lead to a requirement to
notify participants of specific documents affecting claims–handling
procedures or coverage decisions. Dissent at 10.
But the panel opinion addresses only the federal common law’s
application of the arbitrary–and–capricious standard of review based on a
reservation of discretionary authority. Nothing in the panel opinion bears
on a duty to disclose documents bearing on claims–handling procedures or
coverage decisions. Those issues do not affect the standard of review. As a
result, the panel opinion could not possibly bear on issues involving notice
of claims–handling procedures or coverage decisions.
5. Conclusion
The panel addressed a narrow, case–specific situation: The plan
documents provided to participants did not inform them of the existence of
the document reserving discretion in plan interpretation.
As our dissenting colleague acknowledges, other courts have held
that notice requires clarity in the plan language, recognizing that obscure,
ambiguous language doesn’t provide notice of discretionary authority. But
even clear language is inadequate if it’s buried in a secret document.
Unable to find notice from a secret document, the panel majority concluded
that a federal court should apply de novo review rather than the arbitrary–
and–capricious standard of review.
6
Perhaps reasonable minds could have come to a different conclusion.
Either way, however, the difference in views would relate only to the
federal common law on the standard of review—not a plan administrator’s
duty under ERISA. Plan administrators can presumably continue to do what
the plan administrator did here without violating ERISA. The only
consequence is that the court would apply de novo review rather than the
deferential arbitrary–and–capricious standard of review. Little reason
exists to convene en banc to revisit this unremarkable application of the
federal common law to the standard of review.
7
No. 18-4098, Lyn M., et al. v. Premera Blue Cross, et al.
EID, Circuit Judge, joined by HARTZ and CARSON, Circuit Judges, dissenting.
The panel majority imposes a new duty on ERISA plan administrators to notify
plan members “that undistributed, inspectable documents could affect the scope of
judicial review.” Lyn M. v. Premera Blue Cross, 966 F.3d 1061, 1067 (10th Cir. 2020).
This newfound notification requirement, however, is wholly divorced from the text of
ERISA, unsupported by relevant caselaw, and lacking in any limiting principle. “The
purpose of ERISA is to provide a uniform regulatory regime over employee benefit
plans,” Aetna Health Inc. v. Davila, 542 U.S. 200, 208 (2004), yet the proper
administration of a vast number of plans is now left uncertain. See Pet. at 2 (stating that
the panel majority’s “holding will upset established practice in many thousands of ERISA
plans”). Because this proceeding “involves a question of exceptional importance,” Fed.
R. App. P. 35(a)(2); accord 10th Cir. R. 35.1(A), I respectfully dissent from the court’s
order denying en banc review.
I.
David M. was a participant in a self-funded employee welfare benefits plan under
ERISA, 29 U.S.C. § 1001, et seq., and his daughter, L.M., was a beneficiary. Pursuant to
the summary plan description, David could “ask to examine or receive free copies of all
pertinent plan documents, records, and other information relevant to [a] claim by asking
[the Plan Administrator].” Lyn M., 966 F.3d at 1067. One of the plan documents—the
“Plan Instrument”—stated the following:
The Plan Administrator shall have all powers necessary or appropriate to
carry out its duties, including, without limitation, the sole discretionary
authority to . . . interpret the provisions of the Plan and the facts and
circumstances of claims for benefits . . . . Benefits under this Plan will be
paid only if the Plan Administrator decides in his discretion that the
claimant is entitled to them.
Aplt. App’x vol. 1 at 64–65 (emphasis added).
After Premera Blue Cross denied their claim for L.M.’s psychiatric treatment at
Eva Carlston Academy, David and L.M’s mother, Lyn M., sued Premera for improper
denial of medical benefits. The parties filed cross motions for summary judgment, and
the district court granted Premera’s motion and denied David and Lyn’s motion. In doing
so, the district court first found that, under the above quoted language of the Plan
Instrument, Premera was “entitled to an arbitrary and capricious standard of review”
rather than the default de novo review. Lyn M. v. Premera Blue Cross, 2018 WL 233615,
at *3–6 (D. Utah May 23, 2018) (citing Firestone Tire & Rubber Co. v. Bruch, 489 U.S.
101, 115 (1989)). The district court next found that Premera’s denial of David and Lyn’s
claim was “not arbitrary and capricious.” Id. at *8.
On appeal, the panel majority reversed, holding that Premera was not entitled to
arbitrary and capricious review, and remanded to the district court for de novo
reconsideration of the parents’ claim. While it admitted that “the Plan Instrument creates
discretionary authority,” the majority found that the Plan Instrument “does not trigger
arbitrary-and-capricious review” “[b]ecause members lacked notice of” its existence.
Lyn M., 966 F.3d at 1065. According to the panel, “[n]otice requires the plan
administrator to disclose its discretionary authority or the existence of a document with
2
information about the discretionary authority,” but Premera did neither. Id. at 1066–67.
For instance, the majority found that the summary plan description “said nothing about”
(1) “the existence of discretionary authority or other plan documents” or (2) “the
possibility that undistributed, inspectable documents could affect the scope of judicial
review.” Id. at 1067. Having thus failed to show “that it provided notice of its
reservation of discretionary authority,” the panel majority held that Premera was not
entitled to the more deferential standard. Id. at 1068.
It is this notification requirement that forms the basis of my continued
disagreement with the panel majority. See id. at 1071 (Eid, J., dissenting).
II.
Although the default rule is that the court reviews a plan administrator’s decision
to deny benefits de novo, see Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115
(1989), if a plan administrator enjoys discretionary authority under the plan, the court
must affirm the administrator’s decision unless it was arbitrary and capricious. See
Eugene S. v. Horizon Blue Cross Blue Shield of N.J., 663 F.3d 1124, 1130 (10th Cir.
2011). Here, the Plan Instrument unambiguously granted the Plan Administrator “the
sole discretionary authority to . . . interpret the provisions of the Plan and the facts and
circumstances of claims for benefits.” Aplt. App’x vol. 1 at 64–65; see also id.(“Benefits under this Plan will be paid only if the Plan Administrator decides in his
discretion that the claimant is entitled to them.”). Even the panel majority conceded that
“the Plan Instrument create[d] discretionary authority.” Lyn M., 966 F.3d at 1065 & n.2.
In my view, this should have been the beginning and the end of the standard of review
3
issue. Because the Plan Instrument unambiguously grants the Plan Administrator
discretionary authority, the panel majority should have affirmed the district court’s
application of arbitrary and capricious review.
Instead, the panel majority reversed and remanded by imposing a new duty on
plan administrators to “notify” members of “the existence of discretionary authority or
other plan documents” or “the possibility that undistributed, inspectable documents could
affect the scope of judicial review.” Id. at 1067. The newfound path taken by the panel
majority, however, is wrong for several reasons.
First, the panel majority’s notification requirement is wholly untethered from the
text of ERISA. In fact, the panel did not even attempt to cite to any statutory language to
support its judicially-created notification requirement—nor could it, see 29 U.S.C.
§§ 1021–22, 1024–25.
True, the Supreme Court has instructed courts in some cases to “develop a ‘federal
common law of rights and obligations under ERISA-regulated plans.’” Firestone, 489
U.S. at 110 (citation omitted). For instance, the Supreme Court looked to trust law to
determine “the appropriate standard of review for actions under § 1132(a)(1)(B)
challenging benefit eligibility determinations” because “ERISA does not set out” the
standard. Id. at 109–110.
But that does not mean courts can amend ERISA under the guise of the federal
common law. This court rejected such an attempt “to read into ERISA a requirement
Congress elected to apply only to the Tax Code” “[i]n light of the Supreme Court’s
observation that ‘ERISA is a comprehensive and reticulated statute, which Congress
4
adopted after careful study of private retirement pension plans.’” Stamper v. Total
Petroleum, Inc., 188 F.3d 1233, 1238–39 (10th Cir. 1999) (quoting Alessi v. Raybestos-
Manhattan, Inc., 451 U.S. 504, 510 (1981)).
This court should have done the same here. As the Supreme Court has observed,
ERISA “has an elaborate scheme in place for enabling beneficiaries to learn their rights
and obligations at any time.” Curtiss-Wright Corp. v. Schoonejongen, 514 U.S. 73, 83
(1995). Specifically, this “elaborate scheme” “is built around reliance on the face of
written plan documents” and consists of “a comprehensive set of ‘reporting and
disclosure’ requirements.” Id. (citing 29 U.S.C. §§ 1021–31). Accordingly, the present
action is not a case in which, like in Firestone, Congress failed to address a necessary
legal issue. On the contrary, Congress has already put in place reporting and disclosure
requirements that are relevant to this case. For example, plan administrators are required
to make plan documents available for its members, see 29 U.S.C. § 1024(b)(2), and must
furnish those documents upon request, see id. § 1024(b)(4). Rather, this is a case in
which the panel majority added its own notification requirement to Congress’s
“comprehensive set of ‘reporting and disclosure’ requirements.” Perhaps ERISA,
“although . . . quite thorough,” “may not be a foolproof informational scheme,” “it is the
scheme that Congress devised.” Schoonejongen, 514 U.S. at 84. I would have thus left
this “comprehensive” scheme undisturbed.1
1
The relevant duty imposed by ERISA’s “comprehensive set of ‘reporting and
disclosure’ requirements” was met in this case. 29 U.S.C. § 1024(b)(2) requires plan
administrators to make a plan “available.” See also 29 U.S.C. § 1024(b)(4) (requiring
administrators to furnish documents upon request of a plan participant). Here, the
5
Second, the surrounding caselaw does not support the panel majority’s notice
requirement. Instead, the cases cited by the panel concern a separate “notice” issue—
namely, what members would understand from the face of their plan rather than a distinct
notification requirement to explain what was in the plan. See id. at 83 (explaining that
ERISA “is built around reliance on the face of written plan documents” and consists of “a
comprehensive set of ‘reporting and disclosure’ requirements”).
For instance, this court in Member Services Life Insurance Co. v. American
National Bank & Trust Co. of Sapulpa, 130 F.3d 950 (10th Cir. 1997), rejected a plan
administrator’s attempt to recoup already vested payments to a beneficiary via a later-
enacted, retroactive amendment to the plan. See id. at 953. We did so in part because the
beneficiary would not have had “notice” of this amendment at the time the payments
were vested since the amendment would not yet have been incorporated into the plan.
See id. at 956–57. To have held otherwise would have undermined the ERISA “scheme
‘built around reliance on the face of written plan documents.’” Id. at 956 (quoting
Schoonejongen, 514 U.S. at 83). Thus, while we stated that “a beneficiary can ‘not be
bound to terms of the policy of which he had no notice,’” id. at 956 (quoting Bartlett v.
Martin Marietta Operations Support, Inc. Life Ins. Plan, 38 F.3d 514, 517 (10th Cir.
1994)), “notice” in that context concerned the terms of the plan—not a separate
disclosure requirement explaining what was in the plan.
summary plan description stated that members “may ask to examine or receive free
copies of all pertinent plan documents, records, and other information relevant to [a]
claim by asking [the Plan Administrator].” Lyn M., 966 F.3d at 1067. In other words, the
plan was made “available” to David, and § 1024(b)(2) thus was satisfied.
6
The panel majority’s reliance on Herzberger v. Standard Insurance Co., 205 F.3d
327, 332–33 (7th Cir. 2000), and Rodríguez-López v. Triple-S Vida, Inc., 850 F.3d 14, 21
(1st Cir. 2017), is similarly flawed. Both cases were concerned with whether the plan
language was sufficiently clear for a plan administrator to reserve discretionary authority
in considering claims and be afforded arbitrary and capricious review by the court. See
Herzberger, 205 F.3d at 329 (“The issue is whether language in plan documents to the
effect that benefits shall be paid when the plan administrator upon proof (or satisfactory
proof) determines that the applicant is entitled to them confers upon the administrator a
power of discretionary judgment, so that a court can set it aside only if it was ‘arbitrary
and capricious,’ that is, unreasonable, and not merely incorrect, which is the question for
the court when review is plenary (‘de novo’). The cases directly on point say ‘no,’ ruling
that the language in the plan documents must confer discretion in clearer terms.”);
Rodríguez-López, 850 F.3d at 21 (“A careful review of the language of the Plan leads us
to conclude that it does not reflect a clear grant of discretionary authority . . . .”). But not
only is that question a non-issue here—since the Plan instrument unquestionably reserved
discretionary authority, see Lyn M. 966 F.3d at 1065 & n.2—it is also distinct from
ERISA’s reporting and disclosure requirements the majority now amends, cf. Thurber v.
Aetna Life Ins. Co., 712 F.3d 654, 659 (2d Cir. 2013), abrogated on other grounds by
Montanile v. Bd. of Trustees of Nat. Elevator Indus. Health Benefit Plan, 577 U.S. 136(2016) (discussing the clarity of the plan language and an “actual notice” requirement as
separate considerations).
7
In fact, the Second Circuit previously rejected a similar extension of Herzberger
as that adopted by the panel majority here. In Thurber, a plan participant relied on
Herzberger to argue that “she must have received actual notice of [the administrator’s]
reservation of discretion before [the administrator’s] denial of benefits is entitled to
deferential review.” 712 F.3d at 659. The Second Circuit dismissed this argument,
holding that “to the extent that the language in Herzberger could be read to require actual
notice of the insurer’s purported reservation of discretion, [the court] cannot detect any
basis in law or [ERISA] to support this position.” Id. In fact, the Second Circuit
explicitly concluded that the Supreme Court in “Firestone [said] nothing about whether
the [summary plan description] or other plan documents must contain language clearly
reserving discretion” and that ERISA does not require that “the [summary plan
description] contain language setting the standard of review.” Id. Instead, the Second
Circuit focused on the language of the plan and found “that the plan’s reservation of
discretion to [the administrator] was sufficient regardless of whether [the plan
participant] had actual notice of the plan’s language.” Id. at 658 n.2. Thus, the panel
majority’s notification requirement is not only the product of a misreading of the caselaw,
but it also directly conflicts with the Second Circuit’s discussion in Thurber.
To be sure, the panel majority found superficial support for its notice requirement
from Stephanie C. v. Blue Cross Blue Shield of Mass., 813 F.3d 420 (1st Cir. 2016). At
issue there was whether the language in a plan was sufficiently clear to grant the plan
administrator discretionary authority and afford its denial of benefits arbitrary and
capricious review, as well as whether a separate document could “cure the ambiguity
8
contained” in the plan’s delegation of discretionary authority. Id. at 428–29. Following
cases in line with Herzberger, see e.g., Gross v. Sun Life Assur. Co. of Canada, 734 F.3d
1, 15 (1st Cir. 2013), the First Circuit first found that the language purported to grant
discretionary authority to the plan administrator was “not sufficiently clear to give notice
to either a plan participant or a covered beneficiary that the claims administrator
enjoy[ed] discretion in interpreting and applying plan provisions.” Stephanie C., 813
F.3d at 428. But for the same reason Herzberger and Rodríguez-López are unhelpful to
the majority, the First Circuit’s discussion of “notice” in Stephanie C. is also unhelpful—
“notice” in all three of these cases related to the clarity of the plan language.
The Stephanie C. court further held, however, that the separate document was “not
available to cure the ambiguity contained in the” plan language the court found
insufficient to grant the plan administrator discretion. Id. at 429. According to the First
Circuit, this document—“a financing arrangement between the employer and the claims
administrator”—could not be used to clarify the “terms that concern the relationship
between the claims administrator and the beneficiaries” where that financing agreement
was not “disclosed” to the beneficiaries “when coverage attached” and “was never
seasonably disseminated to the beneficiaries.” Id.
Stephanie C. cannot be employed to support a notification requirement like that
imposed by the panel majority here. Stephanie C. is factually distinct: The Plan
Instrument here governed the relationship between the parties, whereas the beneficiaries
in Stephanie C. were not parties to the financing arrangement. In addition, the Stephanie
C. court did not ground its discussion in ERISA’s “comprehensive set of ‘reporting and
9
disclosure’ requirements” the court should not disturb. Furthermore, the disclosure
requirement in Stephanie C. was a distribution requirement, not a requirement that the
plan administrator must notify members “that undistributed, inspectable documents could
affect the scope of judicial review,” Lyn M., 966 F.3d at 1067.
Third, and of greatest concern, the panel majority’s newfound requirement lacks a
limiting principle and thus violates a core tenet of ERISA to impose uniform and clear
duties upon plan administrators. See Davila, 542 U.S. at 208 (“The purpose of ERISA is
to provide a uniform regulatory regime over employee benefit plans.”). As I argued in
my dissent to the panel opinion, the logic of the majority’s opinion could require, for
example, specific notice of a document that might impact claims processing procedures.
It may also require specific notice of a document that might impact how coverage
decisions are made. Once specific notice of a document impacting judicial review is
required, it is but a short jump to requiring specific notice of documents impacting other
participant rights. As consequence, many plan administrators are left uncertain about
what they need to now disclose to their members—only the next case, and perhaps the
case after that, and so on, will enlighten plan administrators of the extent of their duties to
their members outside of those Congress has established. The court may now find itself
in the role of creating its own “elaborate scheme” by clarifying and extending the
majority’s notification requirement despite the fact that Congress has already “devised”
“a comprehensive set of ‘reporting and disclosure’ requirements.” This untenable
position warrants en banc review of this case.
10
III.
For the foregoing reasons, this case is not only wrongly decided but is appropriate
for en banc rehearing. I respectfully dissent from the court’s order denying en banc
review.
11