FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JAN 07 2008

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 07-10348

________________________

D.C. Docket No. 05-00133 CV-3-RV-EMT

ROBIN DOYLE,

Plaintiff-Appellant,

versus

LIBERTY LIFE ASSURANCE COMPANY OF BOSTON,

Defendant-Appellee.

________________________

Appeal from the United States District Court

for the Northern District of Florida

________________________

(January 7, 2008)

Before BIRCH, BARKETT and COX, Circuit Judges.

COX, Circuit Judge:

I. INTRODUCTION

The principal issue in this case is whether the district court applied the correct

standard of review in determining that an ERISA adminstrator’s decision denying
2

benefits to a plan beneficiary was not tainted by its conflict of interest. We reverse

the district court’s grant of summary judgment in favor of the administrator because

the court used the wrong standard of review and because we cannot say that

application of the proper standard would yield the same result. 

II. FACTS AND PROCEDURAL HISTORY

The Plaintiff, Robin Doyle, began working for ChoicePoint Services on

February 24, 2003, as a Registered Nurse/Clinical Information Line Specialist.

ChoicePoint sponsored for its eligible employees a long-term disability (“LTD”)

benefit plan governed by the Employee Retirement Income Security Act of 1974, 29

U.S.C. § 1001 et seq. The Defendant, Liberty Life Assurance Company of Boston,

insured the plan pursuant to a group policy, and administered the plan. 

On January 30, 2004, Doyle filed a claim with ChoicePoint for disability

benefits under the plan, claiming that an anal fissure, enlarged internal hemorrhoids,

and external anal skin tags prevented her from working. On February 10, 2004, she

underwent a fissurotomy and sphincterotomy in an attempt to alleviate these

problems. LibertyLife granted Doyle short-termdisability (“STD”) benefits through

the maximum date available, May 9, 2004.

While Doyle was receiving STD benefits, Liberty Life obtained her medical

records to determine whether she would qualify for LTD benefits, for which she had
3

applied, after her STD benefits expired. After receiving medical records from six of

Doyle’s treating physicians, an independent physician retained by Liberty Life

reviewed her records. Liberty Life notified Doyle that she would not receive LTD

benefits because she did not meet the “own occupation” standard of “disability” under

ChoicePoint’s LTD policy, which provided: 

For persons other than pilots, co-pilots, and crewmembers of an aircraft:

a. if the Covered Person is eligible for the 24 Month Own

Occupation benefit, “Disability” or “Disabled” means that during

the Elimination Period and the next 24 months of Disability the

Covered Person, as a result of Injury or Sickness, is unable to

perform the Material and Substantial Duties of his Own

Occupation; and

b. thereafter, the Covered Person is unable to perform, with

reasonable continuity, the Material and Substantial Duties of Any

Occupation.

(R.2-12 at 6.) 

After Liberty Life denied her claim for LTD benefits, Doyle visited a

rheumatologist who diagnosed her with fibromyalgia. In light of this new diagnosis,

Doyle appealed denial of her claim. Liberty Life reviewed her additional medical

records and received further peer review from a specialist in internal medicine.

Liberty Life then upheld its decision denying Doyle benefits, stating that she still did

not meet the “own occupation” standard of “disability” under ChoicePoint’s LTD

policy.
Cases in our circuit equate the arbitrary and capricious standard with the abuse of discretion 1

standard. See Jett v. Blue Cross & Blue Shield of Ala., Inc., 890 F.2d 1137, 1139 (11th Cir. 1989).

4

Invoking ERISA jurisdiction, 29 U.S.C. § 1132(a)(1)(B), (e)(1), Doyle filed

this action against Liberty Life seeking review of its decision. Liberty Life filed a

motion for summary judgment, which the district court granted. Doyle appeals. 

III. ERISA FRAMEWORK AND THE DISTRICT COURT PROCEEDING 

ERISA does not promulgate standards under which district courts must review

an administrator’s decision denying benefits. Firestone Tire & Rubber Co. v. Bruch,

489 U.S. 101, 109, 109 S. Ct. 948, 953 (1989). To fill this void, the Supreme Court

held in Bruch that district courts should review de novo benefit decisions made by an

administrator who is without discretion to determine eligibility or construe the terms

of an ERISA-governed plan. Id. at 115, 109 S. Ct. at 956. On the other hand, the

Court said that where the administrator exercises discretion, deferential (i.e., arbitrary

and capricious ) review is appropriate according to trust principles, which guide 1

review of decisions affecting ERISA-governed plans. Id. at 111, 109 S. Ct. at 954.

Finally, the Court observed that when an administrator with discretion operates under

a conflict of interest, that “conflict must be weighed as a ‘factor in determining

whether there is an abuse of discretion.’” Id. at 115, 109 S. Ct. at 957 (quoting

Restatement (Second) of Trusts § 187 cmt. d (1959)).
5

Following Bruch, we undertook the “task [of] develop[ing] a coherent method

for integrating factors such as self-interest into the legal standard for reviewing

benefits determinations.” Brown v. Blue Cross & Blue Shield of Ala., Inc., 898 F.2d

1556, 1561 (11th Cir. 1990). In Brown, a plan interpretation case, we reasoned that

trust principles mandated that some deferential level of review applies to benefits

decisions, id. at 1568, but refused to apply “highly deferential” review when the

administrator operated under a conflict of interest, id. at 1562. Thus, we settled on

what came to be known as the “heightened arbitrary and capricious standard”

(hereinafter the “heightened standard”), the hallmark of which is its burden-shifting

requirement. Under this standard, “the burden shifts to the fiduciary to prove that its

interpretation of plan provisions committed to its discretion was not tainted by selfinterest.” Id. at 1566. We said that an administrator’s plan interpretation that

“advances the conflicting interest of the fiduciary at the expense of the affected

beneficiary” was arbitrary and capricious, unless the administrator “justifies the

interpretation on the ground of its benefit to the class of all participants and

beneficiaries.” Id. at 1567. 

Our more recent cases condense the holdings of Bruch and Brown into a 6-step

analysis to guide district courts in reviewing an administrator’s decision to deny

benefits:
6

(1) Apply the de novo standard to determine whether the claim

administrator’s benefits-denial decision is “wrong” (i.e., the court

disagrees with the administrator’s decision); if it is not, then end the

inquiry and affirm the decision. 

(2) If the administrator’s decision in fact is “de novo wrong,” then

determine whether he was vested with discretion in reviewing claims;

if not, end judicial inquiry and reverse the decision.

(3) If the administrator’s decision is “de novo wrong” and he was vested

with discretion in reviewing claims, then determine whether

“reasonable” grounds supported it (hence, review his decision under the

more deferential arbitrary and capricious standard).

(4) If no reasonable grounds exist, then end the inquiry and reverse the

administrator's decision; if reasonable grounds do exist, then determine

if he operated under a conflict of interest.

(5) If there is no conflict, then end the inquiry and affirm the decision.

(6) If there is a conflict of interest, then apply heightened arbitrary and

capricious review to the decision to affirm or deny it.

Williams v. BellSouth Telecomms., Inc., 373 F.3d 1132, 1138 (11th Cir. 2004)

(summarizing analysis set forth in HCA Health Servs. of Ga., Inc. v. Employers

Health Ins. Co., 240 F.3d 982, 993-95 (11th Cir. 2001)) (footnotes omitted). 

The district court began its discussion in this case by noting that ChoicePoint’s

plan vested Liberty Life with discretion in making claims decisions (step 2). The

court next found that genuine issues of material fact precluded a determination of

whether Liberty Life’s decision was right or wrong; so, for purposes of summary

judgment, the court assumed that Liberty Life’s decision was wrong (step 1). Next,

the court recited the measures taken by Liberty Life in reviewing Doyle’s claim for
7

benefits and concluded that Liberty Life’s denial of her claim was reasonable (step

3). 

Finally, the court found that Liberty Life operated under a conflict of interest

since it was responsible for both determining eligibility and paying benefits under the

plan (step 4). But, instead of applying the heightened arbitrary and capricious

standard (step 6), it applied a “modified” heightened arbitrary and capricious

standard. The court apparently “modified” the heightened standard in the following

way: instead of requiring Liberty Life to prove that its decision was not influenced

by the conflict—as the heightened standard requires—the court reviewed the record

and concluded that “there does not appear to be any evidence that Liberty in any way

manipulated or improperly influenced Doyle’s LTD benefits process in order to

achieve a financially beneficial result.” The court said that “given the lack of any

indication to the contrary, . . . Liberty would have reached the same conclusion in this

case even if it had not been operating under a conflict of interest.” 

The court offered two justifications for not applying the heightened standard.

First, the court thought that the question of whether the heightened standard applied

to an administrator’s factual determinations “remains open in this circuit,” although

it acknowledged that the heightened standard applies in plan interpretation cases.
8

Second, the court reasoned that a modified standard was more in line with Bruch and

principles of trust law than was our heightened standard. 

IV. ISSUES ON APPEAL AND STANDARD OF REVIEW

Doyle raises two arguments on appeal. First, she argues that the district court

erred in finding that Liberty Life’s decision was reasonable. Second, she argues that

the district court erred in applying a modified, rather than heightened, standard of

review. This error, she contends, is manifested in the court’s conclusion that Liberty

Life’s decision was not influenced by a conflict of interest, a conclusion that she

argues is not supported by the record. 

Liberty Life responds that the court did not err in finding that its decision was

reasonable, even if, as the court assumed, it was wrong. Next, Liberty Life argues

that the district court did not err in applying a modified standard because our cases

have not conclusively determined whether the heightened standard applies in factual

determination cases. But, even if it does apply, Liberty Life argues, the heightened

standard ascribes more importance to the presence of a conflict than the Supreme

Court required in Bruch. Finally, Liberty Life argues that the record contains no

evidence that its decision was influenced by a conflict of interest.
9

We review the district court’s grant of summary judgment de novo and apply

the same legal standards that governed the district court’s decision. Williams, 373

F.3d at 1134.

V. DISCUSSION

A. Reasonableness Finding

Doyle argues that the district court erred in finding that Liberty Life’s denial

of her claim for disability benefits was reasonable. Specifically, she argues that it

was unreasonable for Liberty Life not to consider her subjective claims of pain and

suffering, which she argues are substantiated by her fibromylagia diagnosis. After

reviewing the record, we agree with the district court that Liberty Life’s decision was

reasonable. We express no opinion on whether it was right or wrong. 

Liberty Life considered Doyle’s medical records and employed the services of

two independent physicians to review those records. It concluded that she did not

meet the plan’s definition of “disability.” We conclude that it was not unreasonable

for Liberty Life to disregard Doyle’s complaints of intangible pain and suffering.

Under ChoicePoint’s policy, a plan beneficiary must provide proof that she is

disabled in order to obtain LTD benefits. The policy defines “proof” as including

“chart notes, lab findings, test results, x-rays and/or other forms of objective medical

evidence in support of a claim for benefits.” (R.2-12 at 9) (emphasis added).
10

Therefore, it was reasonable for Liberty Life to rely only on objective medical

evidence supporting Doyle’s claim, evidence which Liberty Life’s reviewing

physicians found lacking. See, e.g., R.1-12 at 278 (statement of Liberty Life’s

reviewing physician, Dr. Silver, that Doyle’s complaints “are not substantiated by

objective clinical findings”); R.2-12 at 104 (statement of Liberty Life’s reviewing

physician, Dr. Truchelut, that Doyle’s “subjective reports are disproportionate to the

physical, radiological, laboratory, and neurodiagnostic” records). We find no error

in the district court’s determination that Liberty Life’s decision was reasonable. 

B. ERISA’s Heightened Standard of Review

Doyle’s second and primary argument is that the district court erred in applying

a modified, rather than heightened, standard of review. We agree. Our cases hold

that the heightened standard applies to an administrator’s benefits-denial decision

based on factual determinations, as well as decisions based on plan interpretations.

In Torres v. Pittston Co., 346 F.3d 1324 (11th Cir. 2003), a factual determination

case, we stated unequivocally: 

[W]e are bound by precedent to apply the heightened arbitrary-andcapricious standard both to factual determinations and interpretations of

the plan document by an ERISA fiduciary operating with discretionary

authority but operating under a conflict of interest. 

. . . . 

. . . [W]e conclude that the heightened arbitrary and

capricious standard of review for decisions by a conflicted ERISA
Shaw v. Conn. Gen. Life Ins. Co., 353 F.3d 1276 (11th Cir. 2003); Levinson v. Reliance 2

Standard Life Ins. Co., 245 F.3d 1321 (11th Cir. 2001).

11

fiduciary applies equally to determinations of fact as to

determinations of plan interpretation.

Id. at 1329-32 (emphasis added). We declined to differentiate between denials based

on plan interpretations and denials based on factual determinations, saying that “the

need to protect against the fiduciary’s self-interest applies with equal force to plan

determinations and findings of fact made by a conflicted fiduciary in the course of its

benefits decision.” Id. at 1332; see also Yochum v. Barnett Banks, Inc. Severance

Pay Plan, 234 F.3d 541, 544 (11th Cir. 2000) (applying heightened standard to

conflicted administrator’s factual determinations regarding “comparable

employment” under severance pay plan). 

Nevertheless, the district court considered the burden-shifting question open

in light of the following statement in Williams: “In both Shaw and Levinson, two

factual-determination cases, we did not say whether Brown’s ‘heightened arbitrary

and capricious,’ burden-shifting approach should be applied to factual determination

cases like this.” 373 F.3d at 1138-39 (emphasis added). Despite this statement, the 2

Williams court said that the district court “should have applied the heightened, rather

than the ‘regular’ arbitrary and capricious standard,” id. at 1137, even after

acknowledging that the case involved “a plan administrator’s factual determinations,”
12

id. at 1134 n.3. The Williams court recognized that, as in Shaw and Levinson, it did

not have to decide whether the burden-shifting approach under the heightened

standard applied because it concluded that the administrator’s decision was de novo

right. Id. at 1139 (“Because no grounds exist to disturb [the administrator’s]

determination under the de novo review standard, we need not review it under the

more deferential (‘mere’ or ‘heightened’ arbitrary and capricious) standard . . . .”).

Thus, the Williams court’s comment about the burden-shifting approach being an

open question was dictum. Finally, in recapitulating the 6-step analysisfor reviewing

an administrator’s benefits decision originally developed in HCA, the Williams court

explicitly said that the analysis applied to “allERISA-plan benefit denials,” including

denials based on factual determinations. Id. at 1137 & n.6. 

We conclude that the district court erred in not reviewing Liberty Life’s factual

determinations under the heightened arbitrary and capricious standard developed in

Brown and applied in Torres. The practical effect of this error was to relieve Liberty

Life of its burden of proving that its decision to deny Doyle LTD benefits was not

tainted by a conflict of interest. Instead, the district court, upon consideration of the

evidence, concluded that Liberty Life was due summary judgment because its

decision was not affected by the conflict. 
13

Of course, the district court’s error in applying the incorrect standard warrants

reversal only if the record does not support summary judgment in favor of Liberty

Life, in which case the error would be harmless. Lucas v. W.W. Grainger, Inc., 257

F.3d 1249, 1256 (11th Cir. 2001) (noting that “we may affirm [the] judgment ‘on any

ground that finds support in the record’” (quoting Jaffke v. Dunham, 352 U.S. 280,

281, 77 S. Ct. 307, 308 (1957))). We conclude, however, that summary judgment was

improper. 

In order to succeed on its summary judgment motion, Liberty Life, as the

moving party, bore the burden of establishing that there existed no genuine issue of

material fact and that it was entitled to judgment as a matter of law. Livernois v. Med.

Disposables, Inc., 837 F.2d 1018, 1022 (11th Cir. 1988). On the issue of whether its

decision was tainted by a conflict of interest—the pivotal issue upon which the

district court based its grant of summary judgment—Liberty Life advanced only two

arguments in its summary judgment brief. First, Liberty Life argued that its approval

of STD benefits “demonstrates that Liberty Life’s decision making processes were

not biased.” (R.1-11 at 16 n.1.) Second, Liberty Life argued that its decision to

employ an independent physician to review Doyle’s benefits-denial appeal

“demonstrate[s] that its decision-making process was free from bias.” (R.1-11 at 19

n.2.)
14

In her opposition to Liberty Life’s motion for summary judgment, however,

Doyle offered alternative explanations for Liberty Life’s actions. Doyle argued that

Liberty Life’s approval of 90 days of STD benefits—which it characterized as

“charitable”—could be viewed as an arbitrary decision to terminate benefits on the

91st day “without any explanation as to how Ms. Doyle’s condition had changed on

the 90th day.” (R.2-14 at 9.) Further, Doyle explained that Liberty Life’s retention

of an independent physician to review her benefits-denial appeal did not demonstrate

its lack of bias because Liberty Life was required by federal regulations to “obtain a

report from an unrelated physician consultant as part of [her] appeal under 29 C.F.R.

§ 2560.503-1(h)(3)(iii) & (v) and 29 C.F.R. § 2560.503-1(h)(4).” (R.2-14 at 9.) 

It was on this evidence that the district court concluded that “there does not

appear to be any evidence that Liberty in any way manipulated or improperly

influenced Doyle’s LTD benefits process in order to achieve a financially beneficial

result.” (R.2-18 at 13.) We conclude that the court erred in so finding. Under our

burden-shifting standard, Liberty Life bore the burden of proving that undisputed

facts supported a decision that it was not influenced by a conflict, a burden that it

failed to carry on the facts it advanced. Therefore, we reverse the grant of Liberty

Life’s motion for summary judgment. 
15

While we reach the result we understand our precedent to require, we think it

appropriate to note that we agree with the district court’s observations in this case that

our heightened standard is “flawed,” and that “applying a burden shifting analysis to

a claims administrator’s factual determinations poses unique difficulties.” (R.2-18

at 12.) We think our heightened standard is flawed in at least three ways. 

First, our heightened standard is inconsistent with the Supreme Court’s

announcement in Bruch of two standards under which an administrator’s decision

should be reviewed, de novo and abuse of discretion. The agreement among the

circuits that the decision of a conflicted ERISA administrator exercising discretion

should be reviewed under a less deferential standard than the decision of an

administrator not operating under a conflict is premised on the Court’s dictum in

Bruch that “if a benefit plan gives discretion to an administrator or fiduciary who is

operating under a conflict of interest, that conflict must be weighed as a ‘factor in

determining whether there is an abuse of discretion.’” 489 U.S. at 115, 109 S. Ct. at

957 (quoting Restatement (Second) of Trusts § 187 cmt. d (1959)). As this statement

clearly says, the existence of a conflict should be treated only as “a factor” in

determining whether the administrator abused its discretion; the existence of a

conflict does not require an altogether new standard. Our use of a third standard—the

heightened standard—is not required by, and more importantly is contrary to, the
16

Supreme Court’s treatment of a conflict of interest in Bruch. See Chambers v. Family

Health Plan Corp., 100 F.3d 818, 826 (10thCir. 1996) (rejecting Brown’s heightened

standard “as inconsistent with . . . the Supreme Court’s dictum in [Bruch].”). 

The second flaw in our heightened standard is its burden-shifting feature, under

which the administrator bears the burden of proving that its decision was not

influenced by a conflict. As the Second Circuit noted, our burden-shifting standard

is “contrary to the traditional burden of proof in a civil case.” Whitney v. Empire Blue

Cross & Blue Shield, 106 F.3d 475, 477 (2d Cir. 1997) (quoting Sullivan v. LTV

Aerospace & Def. Co., 82 F.3d 1251, 1259 (2d Cir. 1996)) (internal quotation marks

omitted). The traditional burden of proof requires the plaintiff to prove that the

decision was tainted by self-interest, whereas our standard requires the defendant to

prove that its decision was not tainted.

We stand alone in our application of a standard that shifts to the administrator

the burden of proving that its decision was not influenced by a conflict. Other

circuits apply one of two different approaches, neither of which shifts the burden of

proof to the administrator. The First and Second Circuits, for example, have adopted

a “reduced deference” approach, under which a court will reduce the deference

afforded under arbitrary and capricious review after the claimant shows that the
Wright v. R.R. Donnelley & Sons Co. Group Benefits Plan, 402 F.3d 67, 74 & n.4 (1st Cir. 3

2005) (burden on claimant to show conflict exists and once that showing is made “the court ‘may

cede a diminished degree of deference–or no deference at all–to the administrator’s determinations’”

(quoting Leahy v. Raytheon Co., 315 F.3d 11, 16 (1st Cir. 2002))); Whitney, 106 F.3d at 477 (Second

Circuit holding that claimant must prove that the “conflict of interest affected the administrator’s

decision” and upon such proof, “the deference otherwise accorded the administrator’s decision drops

away and the court interprets the plan de novo” (quoting Sullivan, 82 F.3d at 1256, 1259) (internal

quotation marks omitted)). 

See also Pinto v. Reliance Standard Life Ins. Co., 214 F.3d 377, 392 (3d Cir. 2000) (“We 4

adopt the approach of the sliding scale cases.”); Stup v. UNUM Life Ins. Co. of Am., 390 F.3d 301,

307 (4th Cir. 2004) (“Under this sliding-scale standard of review, ‘[t]he more incentive for the

administrator or fiduciary to benefit itself by a certain interpretation of benefit eligibility or other

plan terms, the more objectively reasonable the administrator or fiduciary’s decision must be and the

more substantial the evidence must be to support it.’” (quoting Ellis v. Metro. Life Ins. Co., 126 F.3d

228, 233 (4th Cir.1997))); Vega v. Nat’l Life Ins. Servs., Inc., 188 F.3d 287, 297 (5th Cir. 1999) (en

banc) (“Having polled the other Circuits, we reaffirm today that our approach to this kind of case is

the sliding scale standard articulated in Wildbur. . . . The greater the evidence of conflict on the part

of the administrator, the less deferential our abuse of discretion standard will be.”); Smith v. Cont’l

Cas. Co., 450 F.3d 253, 260 (6th Cir. 2006) (“[T]he possible conflict should be taken into account

when deciding whether the plan administrator’s decision is arbitrary and capricious. However, the

standard of review of not altered to a less deferential standard when the benefits administrator is

operating under a conflict of interest. ‘Instead, . . . the standard remains unchanged and a conflict

of interest is to be considered in applying thatstanding.’” (citing and quoting Calvert v. Firstar Fin.,

Inc., 409 F.3d 286, 292-93 (6th Cir. 2005)) (internal citations omitted)); Woo v. Deluxe Corp., 144

F.3d 1157, 1161-62 (8th Cir. 1998) (“Based on our review of [Bruch], we adopt the ‘sliding scale’

approach. . . . [A]pplying the ‘sliding scale’ approach, the evidence supporting the plan

17

administrator’s decision wastainted by a conflict of interest. Conversely, the Third, 3

Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, and Tenth Circuits apply a “sliding

scale” approach, under which the district court “decrease[s] the level of deference

given to the conflicted administrator’s decision in proportion to the seriousness of the

conflict,” Chambers, 100 F.3d at 825, and then only after the claimant shows the

existence of a conflict, Rud v. Liberty Life Assurance Co. of Boston, 438 F.3d 772,

777 (7th Cir. 2006). 

4
administrator’s decision must increase in proportion to the seriousness of the conflict or procedural

irregularity.”); Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 968 (9th Cir. 2006) (en banc) (“A

district court, when faced with all the facts and circumstances, must decide in each case how much

or how little to credit the plan administrator’s reason for denying insurance coverage. An egregious

conflict may weigh more heavily (that is, may cause the court to find an abuse of discretion more

readily) than a minor, technical conflict might. But in any given case, all the facts and circumstances

must be considered and nothing ‘slides,’ so we find the metaphor unnecessary and potentially

confusing.”); Fought v. UNUM Life Ins. Co. of Am., 379 F.3d 997, 1004 (10th Cir. 2004) (“In

Chambers, we identified two basic approachesthat had emerged in interpreting [Bruch]: the ‘sliding

scale’ approach and the ‘presumptively void’ approach. We explicitly adopted the former. ‘Under

[the sliding scale] approach, the reviewing court will always apply an arbitrary and capricious

standard, but the court must decrease the level of deference given to the conflicted administrator's

decision in proportion to the seriousness of the conflict.’” (quoting Chambers, 100 F.3d at 825)

(internal citations omitted)).

18

Finally, the third flaw in our heightened standard is the remarkably difficult

burden it imposes upon the administrator in proving that its decision was not tainted

by a conflict. Perhaps recognizing that proving the positive is easier than proving the

negative, this court said in Brown, a plan interpretation case, that an administrator can

carry this burden by showing that its decision benefitted the “class of all participants

and beneficiaries.” 898 F.2d at 1567. But, in a factual determination case, it is

virtually impossible for an administrator to prove that its factual findings somehow

benefit the “class of all participants and beneficiaries.” Each claim is unique and

requires individual assessment of the facts supporting the claim, so that a benefits

decision with respect to one beneficiary carries no precedential value with respect to

other beneficiaries. So, unable to prove that its decision benefits other beneficiaries,

the administrator is relegated to the unenviable task of proving the negative, a task
19

which is complicated by the fact that the decision-maker must prove that it was not

even unconsciously influenced by the conflict. See, e.g., id. at 1565 (“A conflicted

fiduciary may favor, consciously or unconsciously, its interests over the interests of

the plan beneficiaries.”). This is an unworkable standard. 

The district court recognized this flaw when it said that under our standard “a

fiduciary operating under a conflict of interest is actually subject to greater scrutiny

than under de novo review . . . .” (R.2-18 at 11.) Our standard is tantamount to

invoking a presumption that the administrator has acted wrongly in its self-interest.

This is why courts and commentators have labeled our heightened standard the

“presumptively void” standard. See Vega v. Nat’l Life Ins. Servs., Inc., 188 F.3d 287,

297 (5th Cir. 1999) (en banc) (citing Brown as an example of the “presumptively

void” approach); Woo v. Deluxe Corp., 144 F.3d 1157, 1161 (8th Cir. 1988)

(discussing Brown’s “presumptively void” standard); Chambers, 100 F.3d at 826

(Tenth Circuit rejecting Brown’s “presumptively void” standard); Kathryn J.

Kennedy, Judicial Standard of Review in ERISA Benefit Claim Cases, 50 Am. U. L.

Rev. 1083, 1158-60 (2001) (discussing Brown’s adoption of the “presumptively void”

standard). 

The benefits decision of an administrator operating under a conflict of interest

should be subjected to more exacting review in both factual determination and plan
We write only on the case before us, a factual determination case, and, without the benefit

5

of briefing and oral argument, express no opinion on the propriety of applying our heightened

standard in plan interpretation cases. 

20

interpretation cases. As we have previously noted, in both cases “the same selfinterest operates such that a ‘conflicted fiduciary may favor, consciously or

unconsciously, its interests over the interests of the plan beneficiaries.’” Torres, 346

F.3d at 1330 (quoting Brown, 898 F.2d at 1565). But, our heightened standard

effectively makes the administrator’s conflict of interest the dispositive factor, rather

than merely “a factor,” in determining whether its decision was arbitrary and

capricious. We should adopt the approach used by the Bruch Court and, without

shifting the burden of proof, instruct the district courts to take into account the

existence of a conflict of interest when determining whether an administrator’s

decision to deny benefits was arbitrary and capricious. 

We urge our court to review en banc this troublesome heightened standard and

consider adopting a more workable standard to apply in factual determination cases.

5

This case illustrates the flaws in our standard. The district court found no evidence

of any influence of conflict, but Doyle argues—correctly we think—that the court has

relieved Liberty Life of the burden it bears under our heightened standard. We have

trouble imagining what evidence Liberty Life could offer to satisfy that standard.
Liberty Life’s motion for summary judgment, and Doyle’s response, presented no procedural

6

issues. And, the case for both parties was bottomed on the administrative record. It seems preferable

in a case like this for the district court to determine by conference or stipulation whether either party

desires to present evidence beyond the administrative record, and if not, take the case under

submission and enter findings of fact and conclusions of law. Rule 56 practice seems to be an extra

and unnecessary step—and one that can result in two appeals rather than one.

21

VI. CONCLUSION

Because the district court erred in granting summary judgment in favor of

Liberty Life, we reverse the grant of summary judgement and remand the case to

the district court for further proceedings consistent with this opinion.6

REVERSED AND REMANDED.