may please the court and counsel thank you for the opportunity to be here today to ask this panel to overrule the arisa decision in pierre vs connecticut general which held that the default standard of review in for factual determinations is abuse of discretion as the panel concurrence recognized or was it cases may not be headline grabbing but they are important to millions of fifth circuit residents who obtain health disability or retirement benefits from their employers the standard of review in a recent case is critical to a recent participants in beneficiaries as it is often outcome determinative the deferential standard of review which allows a plans for his factual determination to stand simply because it is on the low end of reasonableness means that many fifth circuit residents have been subject to benefit denials which are plainly wrong now in here a panel of this court interpreted the firestone decision as mandating a default dyno standard of review only for planned interpretations and held that the default standard of review for factual determination was abuse of discretion and i ask you question ms kantor has anyone done any empirical research concerning the degree to which our standards lead to different results no one has done any empirical research in the fifth circuit but most practitioners will tell you that the difference that there is a difference in results and there is some research that was done by the national institute of sorry national so so you should have insurance commissioners   there's a difference in the application standards i'm sorry but some results you have any individual cases district court cases that you would cite that showed that but clearly and plainly different result would have been obtained under a different standard there are many cases around the country that is where courts have expressed that they would have reached a different result had the standard of review i can offer is a court a list of those cases i don't have them at hand there is a case from the southern district of texas in which the district court judge was very concerned about the fact that he had to apply the abuse of discretion standard of review and indicated that he there are cases where judges have said i want to reach the same result regardless of the standard of review or want to buy it's it's a mixed bag however we know from the standard that when you're looking at a decision and determining only whether it is reasonable versus whether it is right the participants lose why is there not getting a decision on the to say in our office you know no one ever comes to our office to ask us to hire them because they're clean and pay their benefits those are not the cases that we see of course and them you know they have we don't know but there may be ten that were not that were denied so we just don't know but what we do know it but i think so you know really what we do know is that the standard that's currently being applied doesn't search for reasonable and supported by substantial evidence then that doesn't mean that the that decision is is is stacked against the the claimant well i would i would disagree your honor because i'd like it to be in the eye of the district court not in the eyes of a conflicted plant administrator because what happens is when but the supreme court has already made i mean we are we are required under the abuse of discretion standard to take into account a conflict that that is true and when the abuse of discretion standard applies which it will apply in many cases still then would this court or district court have to take into account the one analysis and how much deference to give to a conflicted plan administrator is this case a case though that has a difference in outcome i don't see that you argued in your brief that you win that your client wins under the other standard the other side argues that they win either way so is this the case and why didn't she would dress whether you win  well the issue of whether you know under don't know for you goes to the district court and why why wouldn't we just wrap it all up in a bow and finish the case if we have all the record and everything but you don't have all the record you want and that's one of the problems because these these doctors who reviewed on behalf of the plan administrator never looked at any medical records right but what what did you say that you needed to put in that you didn't get to put in where is all of that briefing well what we briefed to the disc to the original panel was that we had evidence that the ultimate decision maker was not qualified to make that decision we had a deposition we wanted to use when we investigated the credibility and qualifications of that doctor which the district court would not consider so that is very important i would say in either type of review but certainly in  i'm sorry go ahead finish so that that is one issue the so you want to deposition is there's a deposition that you believe should have been looked at is there anything else that should have been looked at that was not looked at in this case has a right to submit additional evidence and it can submit additional evidence up until the time of of of litigation and by and whatever you want to put in the record that and let the administrative consider you have the perfect right to do these planned administrator has control the way in which they make decisions and what information they take and i would submit to you that a plan fiduciary should not be making significant decisions about a mentally ill young woman without that it can get you can take any number of depositions that you want to take that you throw it open completely to a trial before the district courts have such or what you're saying they know will means no your honor and it also depends on the circuit and the circuit will have to develop what it's what no review is going to look like but it's not much different because the big differences are you deciding whether the plan administered it was right or reasonable let's put that aside for a moment you start with the administrative record as you do with an abuse of discretion standard now you don't have to figure out anymore what the factual determination and what's a plan interpretation because that will be off the table you won't have to the district court will not have to do conflict discovery or determine what kind of conflict discovery is available because the glan analysis is off the table the district court will decide what it needs besides what's in the rocker to make a determination and it's not dissimilar from what happens in an abuse of discretion case for example if the records not complete if the district court feels like not the record should have been considered or submitted the district court can look at medical records and as you concisely define you know from a sample from a procedural standpoint because you are aware i'm sure that some circuits have said that the parties are confined to the record before the administrator and some circuits have said that only in very limited very limited circumstances as a district court have discretion and in our circuit under vague unless we change it which is the only way that your client is going to get relief here we can find in the ministry of record open for the district court is what you're saying so that's not confined to well if i didn't understand your b i'm sorry i'm saying that district courts get to judge they judge who is right and who is wrong and they can use whatever they want to use whatever they think is relevant evidence that it's totally open the whole world what new new experts new everything that's and there's no limits why isn't this why isn't this tried just like a breach of contract case you look at what the expert advice on how to determine the medical what seems like to me it's up to the climate to put whatever they want to put in front of the administrator the administrator looks at whatever they look at and then the judge decides based on what the parties offered to each other  didn't one side or the other breach was there a breach i mean why didn't you just look at what the parties looked at the time and decide given the state of the record on which they acted did somebody breach has been a breach of contract case the judge doesn't look at only what the parties presented to each other the judge may look at other things that inform whether there was a breach and this is the same thing most do you know trials end up being very similar to of discretion trials because as i said you start with the record and then the district court gets to decide what else he or she needs but i don't think that it's i don't think that that should be a problem because district courts know how to do day don't this case where you deny the opportunity to put into the administrative record everything that you wish to put in the record at this point not at the administrative level  denied the opportunity to give it to the administrators but you did not give it to them straight well except for the fact your honor that the only thing that could have been given to the administrator was up to the point of denial the records from june t september are informative of the issue of whether the denial out on june fourth was proper hager says you are fully you have the full opportunity to present any additional evidence that you want to to your arguments and we've heard your experts and make a decision there what precluded you from doing that well i can tell you as a practical matter your honor administrative do not take information after the last appeal the curtain this court in bank decision and they can so i can't help it if you if you move through them follow the law that's all we can do is right it's up to you to make him follow along you're saying that the district or would have the opportunity to have new on i mean in my experience i can tell you that the parties usually pay for a split the cost do you concede that you lose if we stick to this record because his end is that really the reason you didn't brief it at all in response even in your reply brief do you concede that you lose on this record no your honor not under the novo we do you win on this record under to novo it since you didn't tell us in any of your briefs how you win and how do you win and get to you win under the no vote because the ultimate decision maker dr hartmann was not qualified to make the decision that he made we win on this record be ok but you have the affirmative burden to show not just that there's something wrong with arianna and i respect that you know she had challenges but that she required partial hospitalization treatment as opposed to intensive outpatient or something else what affirmative evidence despite not just debunking their evidence but what affirmative arrogance do you have of that if we are limited to the administrative record the affirmative evidence that we have are the medical records that demonstrate that at the time of the denial she was evidence or not would it require this court to set up some sort of standard that guides to district court as to how far they can go in establishing our hearing new evidence and what would that test or standard be as to how far can a district court go and hearing you evidence that most circuits except the rule from the fourth circuit established by the quiz in derry case that says that there need to be exceptional circumstances supplement the administrative record or or a need by the district court for assistance in reaching the decision before him or her it with thirty seconds left if i understand all the questions you've gotten the all relate to assuming you win what happened so if you and thirty seconds could explain why we should can reinforce reaffirm p r or not as opposed to what the consequences would be and whether evidence could be taken  subsequent supreme court cases like glen and moran i think it's its analysis of trust law although it might have been right about the default standard in trust law firestone reversed that default standard and its distinction under trust law between a factual and legal determinations does not stand i think the number for the analogy to administrative hearings doesn't work because the plan administrator is are conflicted i was on for if you could just if yes with the t v judges indulgence just quickly took off the last three there hasn't been a difficulty of did novo review in other circuits i think uniformity among the circuits is important and finally the protection of participants in beneficiaries they had a better standard of review before than the under  good morning jeff han for the secretary of labor a way to start by addressing some of the questions that were asked of ms cantor the first question related to the ministry of record as i understand this court case law changing the standard of rule restricting the court to the ministry of record how can you say that when the counsel just argued that she was for administrative record but i think there are other circuits that have developed that rule where  the department of labor does not have position in this case on the come down here arguing for i'm just we don't have a position on whether the emission of record can be opened or not i think the our position on the no votes simply that i wouldn't harm when you have that you're arguing the case where that what is your interest in this case and what is your what is your position as to how we should rule with respect to the de novo standard and what does that mean to the department of labor in terms of the meaning of the standard as far as as i understand and is that simply just a function of the court after reviewing the administrative record if that's what the courts rule is in the circuit it would just use its own best judgment in determining whether or not the decision was correct as an opening new trial if necessary in the discretion of the judge your position is no different from the plaintiff itself is that correct again we don't have a position on whether the standard in any way changes the ministry of record rule if i mean so if it was if it's such a burning issue why did the department of labor wait until twenty six years later well i just don't i just can't answer the question whether or not you read it or not but but i will say  it is a it is a very important issue to department of labor and i'd like to actually focus on why when you know the answer to that question you represented the pardon me you file a mammoth as here i mean why would you not burdened by the record but don't i just don't know the answer to the question whether we waited oh let's just say for future purposes it might be a good idea if you're coming in on a rifle shot issue to kind of know all that embrace is that you get some play with th decision making to know and so there's a push back from the supreme court of in part at least to what's being argued here the glen case involved a situation where the plan had an operational discretionary clause in which case the you should just temper the deference given to her and not replace it with an overview otherwise because so many ministers have conflicts otherwise you have universals and overview but it shows no light on the question of what happens in situations where the accord use discretion or not accord expression i don't think the court is comport has a preference one way or the other whether every plan of the country has a clause or not and you have the point is in the absence of a discretionary clause the standard of review should be insuring health care the proposal that opponent brings in this case proposes an approach that increases cost further burdens already burden federal courts in this circuit it has no support for a better result this is this does not serve or further sound public policy goals appellants what the court to overturn a settled standard of review in the circuit that in over twenty five years congress has not amended and the supreme court has never criticized mr  terro given what you've just told us about the interest that we should be examining us and we accept that assume for a sake of argument that we decide that pierre should be overruled i understand that you're going to argue that that shouldn't happen  but the fact that we're in bank here must indicate that there's at least a substantial chance if that will occur based on the interest that are to be served that you described assuming that we overthrew pierre help us as an officer of the court what constraints or directives if any should we announce to guide the district courts under a post pierre regime you are your core absolutely correct i'm going to advocate against that but given your question i would suggest that vega remain the law that the novo review should still be anchored if the court were to decide to overturn pierre on the record the administrative record and only in the rare exceptions like vegas outlined we don't have to speculate about what to know the review would look like because we have at least eight other circuits that have followed it for more than a decade do you have any empirical data or other authority that would show what those costs have been and what the burden on those the f l s any cases where where there's an incentive to shift fees at times there can be more time consuming and more expense involved also the  is at the center of a risk that the congressional intent is to have a very limited quick and i'll benefits the supreme court and have a shot indicated that judicial reviews not going to be preferred over internal review those are all costs that are going to be additional standard even with a limited discovery would prevail in this appeal the reason is because the administrative record and the record developed in this case it is crystal clear judge rosenthal's opinion was very factually specific a careful she didn't came to the same conclusion that granted they were looking at the abuse of discretion sooner but in no way did they criticize judge rosenthal's analysis for the facts in this case i would note here that there were and that is the only thing that we're talking about abuse of discretion yes and i think it's important to know in the hearing the conversation that firebird firestone do and not do firestone we believe that the circuit correctly read firestone here and it addressed it wasn't on appeal the issue of factual determination it was legal interpretation of the plan in addition to that firestone could have the u s supreme court could have in firestone or subsequently said it's been over all the way with  argue for they've never done that all indications are as judge southwick indicated in the questioning that they wouldn't do that and you never know what the supreme court's going to do but all indications based on the cases is that they would not adopt universal  what's being advocated what i don't understand is you all have taken the position that the texas law is not preempted correct your honor we never addressed a preemption issue that pierre was so strong and clear circuit opinion for twenty five years that's uninterrupted on the federal standard we didn't raise preemption issue there's i believe the curtis case from other norton district texas judge while addresses some of the preemption issues  are preemption concerns but we just view this as an issue in this in this appeal we must assume that the texas statute is not preempted and is fully effective is that correct that would be correct iranian wind isn't why isn't this decided under clause banned is totally implausible what we're looking at is a standard of review in federal court which is not what the discretionary clause band says well the texas if the texas law is fully applicable as it talks about standards and review on appeal why don't we apply the texas law well judge because the fifth circuit determines in federal courts the term of the federal standards in federal court not state statutes may i ask you question about firestone in practical question when the supreme court said that plans that contain discretionary clauses are to be reviewed under abuse of discretion i would assume am i correct that there was a great incentive for most health and welfare benefit plans across the us to go to discretionary clauses is that right that appears to be the case your honor that's that's right so we're only we are dealing with the remaining rather small subset of cases th except in the states that have this discretionary clause ban where there's no discretionary clause yes your honor and i think you've hit on a topic which shows  discretion in those cases and it's certainly the case in the under the dmards laws for self funded plans then you have this weird anomaly where states less than half are are somehow able to prevent plans from availing themselves firestone and it seems like an odd and equitable result well and then you also have the anomaly am i correct that do do state do the court circuits with where the of discretion clause is applied to plans with discretionary interpretation is that applied to the facts as well as the law yes from so again we're talking about  subset of plans that don't have a discretionary clause or the statute provides so even in the circuits that say there's de novo review where there's no discretionary clause someone could easily have done discretionary cause you just chose not to stand on it right yes your honor because i wish i didn't want the texas insurance commissioner come in after you your honor we thought here was so clear no reason i cancer can you please return to answering the question about why you win under the novo review in this case you were about about a few minutes ago you were going to tell us all the reasons and we've never heard that answer yes for other things there were two board certified psychiatrists who reviewed the relevant medical records and conducted peer to peer review and i think it's important here to note that in these circumstances the psychiatrist actually in can in communication with the traders at the time and the treaters have every incentive to get their advocating to get paid from the benefits to be approved and what the record shows on appeal and i would specifically cite to the court record on appeal five ninety nine and six thirty nine that at the junction in question after humana had had reviewed and considered and reversed actually a few decisions and allowed additional authorisation at the point question after forty nine days of partial hospitalization the psychiatrist determined that she was not motivated for treatment was not she was not cooperating she was medically stayed stable and not a danger to herself and others and that other types of treatment of detainees raised earlier were were more appropriate and might have been covered under the plan so in particular those areas in the record and you can see that the determination was not made without any regard without any consideration it was two different companies a or m once a second reviewer life sink was the first reviewer and so through those thorough reviews which i just rosenthal went through all that as a matter of law there's nothing to suggest that that was an incorrect result it certainly wasn't an abuse of discretion and it wasn't but what changed me if i were your opponent your point has not made this argument but if i were your opponent i would make the argument i've been paying benefits you've been paying benefits and what changed to make the nonpayment appropriate what happened with am that would say well what's what we've been paying for it ain't happenin any more your honor mind seems the situation changed i mean there was there was a more acute serious condition initially and that changed and stabilized where i mean nobody is that if i look at this five ninety nine six thirty nine will i see that it's wrong and i mean specifically they said and i'm at five ninety nine right now based on the clinical information provided the member did not meet them holic medical necessity criteria patient was not reported as being in imminent danger to self or others patient was not aggressive or threatening there was no report of psychosis or mania there was no report of medical instability no new issues were reported so what would you have paid for i mean just throwing her out on the street with no coverage at all doesn't seem appropriate here so what would you all of paid for mean what i not seeing this as an all or nothing case between maximum care and nothing but what does this suggest would be appropriate your honor i'm not sure that every she got flushed out completely but my understanding is that she likely could have qualified for less benefits but they weren't requested they were in utah at this facility and wanted to continue want that high level to treat the discussion of intensive outpatient care or having a caregiver come in a certain number of times a day or you know wherever that just didn't happen that discussion didn't happen your honor i can't say that that did not happen i'm not aware of it being in the record evaluating her condition at the time and she was going for the partial hospital's but the problem is you want to see continued progress and what you're saying is she's not continuing to progress there i mean this happens with medicare all the time they gave you this therapy and then they go ok well you got better somehow we're going to take it away is this a similar situation she got to a point where she had gotten the benefit of the in patient care and now needs to transition back i mean she eventually did leave this hospital it appears so he can't stay there forever i guess yes your honor i would say it's not exactly like the medicare situation that you mention but it is a situation where when somebody is in for mental health they've got to cooperate and participate in treatment and if they're not dangerous to themselves or others or meeting the criteria needed for that level of hospitalization then it isn't the problem with the mental issues that not cooperating is part of the mental issue it can be your honor but i think that  change in her behavior which is what led to this determination did you have anything to say about opposing counsel's comment that the person who made this determination was not qualified yes your honor they're both board she excluded it and said that depositions from other cases involving a different party typically not admitted but that was her ruling on the evidentiary issues i don't believe that they've challenged that as a specific point on this appeal either which seems to me some tension in your argument on the one hand you're saying reversing pierre is going to up in the recent law and impose all these cost and burdens on the court on the other hand you're saying of the standard of review it's really actually not going to make much of a difference so if the standard of review isn't going to make much of a difference why are you opposed to firstly trying to preserve pierre why of why have twenty seven states banned discretionary clauses your honor i think that there's a distinction between this case and the laws well i think piers right and i think that if the u s supreme court it's very presumptuous to suggest what the court would say but i think the indications certainly in their opinions are that they would seriously consider and maybe go with peer over what the other circuits have done putting that aside in this case i don't think the standard of review matters i think this is a poor choice for for trying to show that there's a different outcome one of the two standards because i think under any standard we would prevail as a matter of law in this case but do you think putting this case the side do you think it's going to the different standard would impact cases on a broader scale somewhat judge i mean i think i think it's a i think that there's a part of the supreme court opinion had not seven i believe where the court says that the stuff is overblown as to certain of these types of policy concerns in these cases i think we need step back a second say what did the court do and not do the court didn't abolish the discretion back to brace did it senate plan administrators want to put that in their plan then it's so easy and that's actually why two of the circuits have disagreed with pierre this the sixth and the second that said we were concerned about the federal district judges but we're ok with it because we know that it's very easy to just put a discretionary clause in plan well that's not  the way pierre isn't part of the cost issue how far you go with a de novo whether you limit it to the record before the administrator whether the open it up to a full blown ex new brand new experts in brand new evidence and this and that i mean isn't that part of the analysis of cost and everything else yes wrong that's part of the analysis i think that even with the vegas standard of limited discovery you're still opening it up encouraging more litigation you're encouraging as i think judge dollars point out correctly are untold times when the benefits are granted when it's maybe a close call and the administrator goes the way of branding the benefits but now you're going to create a system that sort of incentivize as you know any denial you know under with all due respect to judge rosenthal that puts her in a better situation than than this panel to review the factual whole record when there's no additional evidence i mean that's why there's this deferential standard as to as to factual findings and nobody has it right to get the law wrong the plain interpretation wrong but with regards to factual determinations y'all are in as good a position as judge rosenthal but since this was the summary judgment is not the question whether there is a fact issue presented and if there is we have to send it back we don't get to decide facts and i appreciate the sentiment but that's not the way it works your honor when there are no facts in the two genuine issues of material fact the court does in that the right way to phrase it rather than oh well you guys can do fact finding just as well as judge rosenthal which is i think what you just said made in the search you know your honor you didn't hear me correctly that is what i said you're correct in saying that the the better way i should set it is that there was no generation material fact in this case however i would say that the question on a policy pull out the additional answer i wanted thank you collegially i guess is my question is if there's a remand or not would depend on what standard is set with regard to whether they can be new evidence or not if if this court determines no new evidence on the record then it's possible dischord can make a decision if this court leaves it open and it's a possibility that there could be new additional evidence and we would have to rema appellant has had numerous opportunities to tell us what that issue of material fact is and somehow try to develop it we are sitting here on bond and still not having any sense of what that would be so under this kind of record it should firm and you know not not any not every man for any reason i mean even if we concluded that new evidence is appropriate in a theoretical sense in this case there's a summary judgment procedure and there if there hasn't been a motion to put on more evidence or something because you raised the day nobody she said we went under de novo to judge in your summary judgment in response to that if they think they need to go get more evidence then they have to file a motion to put on more evidence or whatever or put the new evidence in and let the judge refused to consider it but there's none of that here so as a matter of summary judgment procedure even if we hold in future cases you get to put on new evidence should we apply that here is exactly correct i mean they've had numerous opportunities to bring forth whatever they think that and that evidence would be have not done so even on the brief there's confining that to that sort of standard in future cases before health insurance plans like any other insurance plan were governed by state common law and the supreme court in firestone center was meant to provide more protections to beneficiaries than existed under the common law so how is it consistent to do appear does in deferring to the plan on fact issues like credibility determinations when you'd never get that under state law for insurance policies like auto policies or homeowners policies because as i think and the panel's concurring opinion cited to professor lang buying and i think his article is very helpful in the framework of looking at this it's a it's really a hybrid or a blend of contract law trust law and sort of paternalistic federal protection of employees which is which is appropriate also if you look at into those terms pierre's perfect because for the the issue of law as judge owen mentioned earlier the contract interpretation of that what happens in the contract that is an issue of law regularly routinely with regards to factual determinations because it's  why is it different than a commercial plan because that's the way that oversight has been set up by the congress well part of there is a policy that benefits beneficiaries is getting employers to do it in the first place to provide group health coverage by putting aside the current debate about affordable care and so on in general the whole purpose was to get employers to do this to have group health and part of that is creating some degree of certainty is how that's going to work so that would seem to be an argument in favor of not allowing new evidence because if you if you're going to be allowed allowed to have new evidence then there's no degree of certainty at all to how these mployers from providing that benefit that's a joint benefit the employer urged benefit the employees benefit and by making it a standard case you're taking it away from what congress created if  doesn't take us back to a standard commercial litigation apart didn't the department of labor have some regulations regarding minimum procedural standards that were which i was unfamiliar with until i read the amicus brief so so it's not as if the administrators you know can do whatever he wants it's there are procedures right there are procedures and i'd be curious to study more how that's done in other circuits are in circumstances where abuse of discretion is applied based on the plan and there's no state statute i think that there are certainly are a lot of regulations that apply in a lot of requirements to plan h has no further questions and i would yield the rest of my time thank you sir very three minutes rebuttal thinking about or what we're asking for here is a determination by district court as to whether the plan administrator was right or wrong counsel judge haynes asks you are asked the other side about that the district court record did not support that there was a genuine issue material fact haven't you waived or forfeited the issue that there is a material issue of fact here when it's addressed impair and four of appellate brief and you didn't file a reprise apply brief and you didn't address it in your blue brief that you have an issue of material fact that would require remained why haven't you waived or forfeit it i understand why you may not have preserved  district court was when dr hartmann said that this treatment was only for the convenience of ariana m was that right or was that wrong and that issue was never addressed so putting aside whether we would want to submit additional evidence that we didn't try to submit already the district court has to make that factual determination and decide whether that is but you still have to follow summary judgment procedure so in a homeowner case the roof is damaged the insurance company comes in and show puts on evidence and through wasn't damaged and the insurer just sits there and says nothing on appeal we have to look at only that to have an instance say was there any evidence genuine issue of material fact if there wasn't the fact that usually you have jury trials on whether the roof was damaged doesn't help us so that's the question you're being asked but i'm trying to answer your honor we move for summary judgment is why we're not saying that in this case there has to be a trial but there has to be a different standard applied to the evidence and the question before the district court now will be what's the plan administrator right or wrong did she need more treatment or not not whether but if there's no material fact there isn't any need for a man the remains if there is a dispute a material fact then we're not the initial fact finder we're not the fact finder at all we just would review a fact finder so then she would have to make credibility determinations and so forth but you haven't pointed to that in fact you just said you move for summary judgment implying that you don't think there is a material issue of fact so what is there for the judge to do apply the right standard to decide whether you undisputed facts like why are we not able to do that well i guess this court could decide whether this these services were primarily for the convenience of aryan am or were for her treatment if this court wants to decide that but the problem also is that we did raise the issue of whether the additional evidence we