United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 25, 2013 Decided December 20, 2013

No. 13-7002

IAN PHILLIP JAMES,

APPELLANT

v.

INTERNATIONAL PAINTERS AND ALLIED TRADES INDUSTRY

PENSION PLAN AND GARY J. MEYERS,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:07-cv-02107)

Kelly Burchell argued the cause and filed the briefs for

appellant.

Kent Cprek argued the cause for appellees. With him on the

brief was Judith Sznyter.

Before: BROWN, Circuit Judge, and EDWARDS and

SILBERMAN, Senior Circuit Judges.

Opinion for the Court filed PER CURIAM.

PER CURIAM: Appellant Ian Phillip James asserts that the

International Painters and Allied Trades Industry Pension Plan
2

(“International Plan”) has denied him benefits to which he is

entitled. The key factual issue is whether James accrued enough

credit under an earlier plan, the Local 963 Plan, which was later

merged into the International Plan. In light of certain

concessions, the only time period at issue is between 1959 and

1962. Relevant contemporaneous records regarding this period

are sparse. The International Plan determined that James had not

demonstrated sufficient accrued credit during the period, and it

denied James most of the benefits he sought. James sued in

district court, arguing, among other things, that the district court

should review the International Plan’s determination de novo.

According to James, the abysmal state of the International Plan’s

records, as well as its failure to timely produce certain records,

meant that the International Plan should forfeit its entitlement to

a deferential standard of review in district court. The district

court rejected this argument and affirmed the International

Plan’s decision as reasonable under an abuse of discretion

standard. James v. Int'l Painters & Allied Trades Indus. Pension

Plan, 844 F. Supp. 2d 131, 146-47 (D.D.C. 2012) (James II). On

appeal, the only issue is whether, because of the procedural

irregularities in the administrator’s handling of the claim, the

district court should have applied a de novo standard of review. 

We think that the district court applied the correct standard of

review, and we affirm.

The International Plan is an ERISA-governed pension plan.1

The Supreme Court has held that courts should review ERISA

benefits determinations deferentially if the plan explicitly grants

discretion to plan administrators to determine benefits

eligibility. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101,

115-16 (1989). The district court found, and James concedes,

that the International Plan does grant the plan administrator

discretion. James v. Int'l Painters & Allied Trades Indus.

1

 29 U.S.C. § 1001 et seq.
3

Pension Plan, 710 F. Supp. 2d 16, 24 (D.D.C. 2010) (James I).

Nevertheless, James argues that the district court should have

reviewed the International Plan’s determination under a de novo

standard because of a number of procedural irregularities in the

plan’s administration of his claim. 

Although the Supreme Court has never suggested that the

standard of review applied to ERISA administrators’ benefits

determinations should change because of procedural

irregularities, a number of our sister circuits have carved out

varying exceptions to the general rule. Some circuits substitute

de novo review for deferential review only when the plan

administrator committed severe procedural violations. See, e.g.,

Atkins v. Bert Bell/Pete Rozelle NFL Player Ret. Plan, 694 F.3d

557, 567 (5th Cir. 2012); Trs. of Electricians’ Salary Deferral

Plan v. Wright, 688 F.3d 922, 927 (8th Cir. 2012); Anderson v.

Suburban Teamsters of N. Ill. Pension Fund Bd. of Trs., 588

F.3d 641, 646-47 (9th Cir. 2009). The Tenth Circuit is stricter,

stripping a plan administrator of deferential review unless the

irregularity is “inconsequential.” LaAsmar v. Phelps Dodge

Corp., 605 F.3d 789, 800 (10th Cir. 2010). The Seventh Circuit,

however, has held that procedural irregularities do not alter the

standard of review. See Weitzenkamp v. Unum Life Ins. Co. of

Am., 661 F.3d 323, 329 n.3 (7th Cir. 2011). 

The apparent rationale for applying a more stringent

standard of review when there are procedural irregularities is

that certain irregularities may call into doubt the plan

administrator’s good faith or even competence. But whatever the

merits of the cases that have recognized a “procedural

irregularity exception” to deferential review, we do not think

that James has alleged ERISA violations that rise to that level.

First, James argues that the plan failed to maintain adequate

records, as it was required to do, see 29 C.F.R. § 2530.200b-
4

3(a), in order to accurately determine his eligibility for benefits.

To be sure, the lack of contemporaneous employment records is

unfortunate, and it would appear likely that either the Local 963

Plan or the International Plan was negligent in failing to

maintain those records. But the fact that records from over fifty

years ago were lost does not, by itself, call into question the

validity of the current plan administrator’s findings.2

 ERISA

plan administrators must use the best available information to

make their determinations, and there is no reason that they

should lose the benefit of deferential review simply because, for

reasons beyond their control, the best available information is

limited.

Second, James argues that the current plan administrator

failed to timely produce documents that it was required to

produce under ERISA. See 29 C.F.R. § 2560.503-1(h)(2)(iii).

Here, James has a point. The district court found that the

International Plan had violated some of its ERISA disclosure

obligations. James II, 844 F. Supp. at 158. Moreover, the record

suggests that the International Plan, at least initially, was fairly

sloppy in evaluating James’ claim, making basic arithmetic

errors and failing to locate and produce documents that were, in

fact, in its possession. Id. at 136-37. But the International Plan

did ultimately produce all of the required documents, and its

ultimate decision took account of all available evidence,

including the existing records, James’ own testimony, and his

social security records. Id. at 146-48. The district court found

that the plan ultimately made a reasonable determination,

consistent with the procedural requirements of ERISA. Id. The

2

 James argues that by keeping poor records, the Local Plan violated

its fiduciary duty, and the International Plan assumed liability for that

breach when the plans merged. But James is not making a breach of

fiduciary duty claim, and even if the plan has assumed the liabilities

of its predecessor, the conduct of the predecessor cannot logically call

into question the good faith or competence of the successor.
5

fact that the International Plan only made its reasonable, ERISAcompliant determination after a few attempts does not change

the level of deference to which it is entitled. See Conkright v.

Frommert, 559 U.S. 506, 513 (2010) (rejecting a “‘one-strikeand-you’re-out’ approach” to ERISA review). The admitted

violations of ERISA disclosure requirements in this case were

not so “flagrant” that we should consider recognizing a new

exception to the deferential review of plan administrators’

discretionary decisions.

We recognize that James seems only inches away from

having accrued sufficient credit to qualify for a greater pension,

but without adequate records, it is quite difficult to show. The

district court held that the plan administrator acted reasonably

in dealing with the sparse record – at least once all available

information was before it – and we see no basis in this case for

applying a more stringent standard of review. 

So ordered.