United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 05-3669

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Dora McNeil, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Arkansas.

Jose E. Abiseid, M.D., P.A., *

* [UNPUBLISHED]

Appellee. *

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Submitted: October 6, 2006

Filed: November 1, 2006 

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Before MURPHY, BYE, and MELLOY, Circuit Judges.

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PER CURIAM.

Dora McNeil appeals the district court’s adverse judgment in her Employment

Retirement Security Act (ERISA) action against her former employer, Jose E. Abiseid,

M.D., P.A. (Abiseid). In her lawsuit, McNeil challenged the calculation of accrued

pension benefits to which she was entitled under a Defined Benefit Plan and Trust

(Plan) following her termination. The case was submitted below on the briefs and

administrative record, although the parties disputed whether several documents should

be included in the administrative record. 

We conclude that the district court properly considered as part of the record

correspondence between the parties between April and October 2002. The letters
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were not considered as “evidence,” and thus the rule precluding consideration of

documents outside the administrative record does not apply, and in any event McNeil

has offered no reason to conclude that the letters were not before the Plan

administrator at the time the determination at issue was made.

This court reviews de novo the district court’s determination as to the proper

standard of review. See Torres v. UNUM Life Ins. Co. of Am., 405 F.3d 670, 677

(8th Cir. 2005). Generally when (as here) a plan expressly gives the administrator

discretion to determine eligibility for benefits and to construe plan terms, an abuse-ofdiscretion standard applies. See McGarrah v. Hartford Life Ins. Co., 234 F.3d 1026,

1030 (8th Cir. 2000). However, a less deferential standard applies when the

decisionmaker has, inter alia, not used judgment in reaching its decision. See id. We

infer that Abiseid did not exercise judgment when rendering its decision, because

Abiseid never provided McNeil with an explanation of the calculations it used to reach

its accrued benefit determination. See id. at 1031 (where plan trustee does not, inter

alia, offer written decision so that applicant and court can properly review basis for

decision, court may infer trustee did not exercise judgment when rendering its

decision). Two letters--one written in April 2002 and one written in October 2002--

provided the only explanation by Abeseid of its accrued benefit determination. These

letters merely repeated Plan provisions and identified which interest and mortality

tables were used, but never explained how applying these terms and tables yielded the

calculated accrued benefit. Because Abiseid never explained its calculations, and

never told McNeil why her claimed amount was incorrect, McNeil was deprived of

the ability to tell the court why Abiseid’s calculations were wrong, and the district

court and this court are likewise unable to determine whether the result was correct.

See Collins v. Central States, S.E. & S.W. Areas Health & Welfare Fund, 18 F.3d 556,

561 (8th Cir. 1994) (ERISA requires fiduciary to provide benefits claimant with

written decision explaining specific reasons for denial, written in manner calculated

to be understood by claimant; trustees are obliged to explain rationale underlying

decision so that claimant may adequately prepare appeal to federal court and court
1

Even in its brief to the district court, Abiseid appeared to take different

positions on whether it used a 15.7% NRB rate or a changing NRB rate each year.

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may properly review decision). Abiseid’s failure to provide any explanation regarding

why its benefit calculation was correct and McNeil’s was wrong constitutes a

procedural irregularity that warranted application of a sliding-scale standard. See

Woo v. Deluxe Corp., 144 F.3d 1157, 1162 (8th Cir. 1998) (describing sliding-scale

approach).

Moreover, we disagree with the district court that the belated explanation

offered by Abiseid in its district court brief for the difference in calculations--the use

of different “normal retirement benefit” (NRB) rates--explains how Abiseid

“interpreted” the plan to reach a result different from the one McNeil calculated.1

 We

conclude the question of the applicable NRB rate does not involve an interpretation

of the Plan, and thus that the factors set forth in Finley v. Special Agents Mut. Benefit

Ass’n, Inc., 957 F.2d 617 (8th Cir. 1992), do not apply. See id. at 621 (factors used

in determining whether interpretation of plan terms is reasonable). We cannot tell

from the record documents--the Plan, an adoption agreement, a December 1997

Annual Consent Memorandum, and “accounts and allocations worksheets”--what

information is significant or relevant to the accrued benefit calculation. In addition,

unlike the district court, we fail to see how the fact that the same person drafted the

Plan, calculated the accrued benefits each year, and calculated the final determination,

means that the final determination was necessarily beyond challenge, and we also fail

to see how annual benefits summaries McNeil received (which were never referenced

in Abiseid’s correspondence about McNeil’s accrued benefits) established that

McNeil’s calculations were wrong.

Because this court cannot make a determination as to the propriety of Abiseid’s

final determination on the administrative record before it, we remand to the district

court with directions to remand to Abiseid with instructions to reopen the
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administrative record to respond to McNeil’s claim with a detailed explanation of its

calculations. See Abram v. Cargill, Inc., 395 F.3d 882, 887 (8th Cir. 2005) (noting

remand is proper when ERISA plan fails to make adequate findings or adequately

explain its reasoning). We thus do not reach the attorney-fee issue.

Accordingly, we reverse and remand for further proceedings consistent with

this opinion. 

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