UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ MICHAEL ERICK STACHMUS, Plaintiff - Appellant,

v. THE GUARDIAN LIFE INSURANCE COMPANY OF AMERICA, Defendant - Appellee. No. 20-7019 (D.C. No. 6:19- CV-00071-RAW) (E.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before MORITZ , BALDOCK , and EID , Circuit Judges.

________________ _________________ Michael Erick Stachmus sought a declarator y judgment that he and his son are the rightful beneficiaries of a life insurance policy administered by The Guardian Life Insurance Company of America under the Employee Retirement Income Security Act (ERISA), 29 U.S.C. §§ 1001-1461 . The district court entered judgment in favor of Guardian, and Stachmus now appeal s. He also seeks to seal portions of the appendix containing personally identifyi ng information, while Guardian seeks to

* After examining the briefs and appella te record, this pa nel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### April 23, 2021 Christopher M. Wolpert Clerk of Court2 recover its appellate fees a nd costs. Exercising jurisd iction under 28 U.S.C. § 1291, we affirm the district court’s judgment, grant Stachmus’s unopposed motion to seal portions of the appendix, and deny Guar dian’s request for fees and costs.
I Guardian issued the policy to Stachmu s’s father (the insured) through his employer on July 1, 2011. The insured or iginally designated Stachmus and his son each 50% beneficiaries, but on May 9, 2012, the insured designated Stachmus a 90% beneficiary and Stachmus’s step -sister, Andrea, a 10% benefi ciary. Shortly after the insured died on September 4, 2013, Andrea submitted claims to Guardian on behalf of herself and Stachmus’s step-mother and step-brother (“Andr ea’s claims”). She also sent Guardian a general power of attorney signed by the insured on July 27, 2011 (shortly after the policy was issued a nd before the May 9, 2012, beneficiary change) designating Andrea as the insured’s a ttorney-in-fact, as well as a beneficiarychange form executed by Andrea on August 27, 2013 (just before the insured died on September 4). The August 27, 2013, bene ficiary-change form designated Andrea a 50% beneficiary and Stachmus’s step -mother and step-brother each 25% beneficiaries. Because the power of atto rney indicated its “power s [would] not exist after [the insured] bec[a]me disabled or in capacitated,” Aplt. App ., Vol. IV at 161, Guardian asked Andrea whether the insured was incapacitated at the time she signed the August 27, 2013, beneficiary-change form . She replied that the insured was not3 incapacitated and that he had specifically di rected her to change the designations. Consequently, Guardian paid Andr ea’s claims on October 17, 2013. Eleven days later, on October 28, 2013, Stachmus wrote to Guardian to inquire how to begin the claims process, indicati ng he was aware of two policies, one from which he had been removed as a benefici ary by the August 27, 2013, beneficiarychange form and a second that designated hi m a 90% beneficiary. Guardian replied that the beneficiary-change form did not distinguish between Basic Life and Optional Life coverages and thus hi s previous 90% designation fro m May 9, 2012, was “null and void” as to both coverages, id. at 124. More than two years later, on January 26, 2016, Stachmus, through counsel, submitted a formal claim to Guardian. He acknowledged An drea’s claims but asserted she was prohibited by state law fr om designating herself a beneficiary; he also argued that the August 27, 2013, be neficiary-change form was ineffective because the insured was incomp etent at the time. Guardian denied Stachmus’s claim on March 14, 2016, but directed him to provi de additional information if he wished to appeal the decision. On May 13, 2016, Stachmus sought review with Guardian’s appeals committee. Guardian acknowledged the app eal on May 31, 2016, and invited him to provide additional informati on to support his claim. Id. at 64-65. Then on July 8, 2016, Guardian once again requested that Stachmus provide additional information to support his claim. Despite Guardian’s re peated requests for additional information,4 Stachmus provided no further support for hi s claims. Thus, Guardian denied his appeal on October 10, 2016. Stachmus subsequently filed suit in st ate court. After Guardian removed the suit to federal court, Stachmu s filed an amended complain t seeking declaratory relief that he and his son were the proper benefici aries. He alleged that the August 27, 2013, beneficiary-change form was inva lid because when A ndrea signed it, the insured was receiving hospice care for cancer, he had suffered a massive stroke, and he was “completely incompetent,” id. , Vol. I at 8. Stach mus initially moved for partial summary judgment to determine the di strict court’s standa rd of review. He argued that Guardian’s failure to resolv e his administrative appeal within the prescribed regulatory timeline constituted a procedural irregul arity that required de novo review of Guardian’s adverse decision. He th en moved for judgment on the administrative record. 1 Although he conceded for purposes of argument that the power of attorney was genuine, he ques tioned whether it was valid when Andrea executed the August 27, 2013, beneficiary-change form. Id. , Vol. VII at 60-61. He asserted that Andrea’s self-d ealing shifted the burden to Guardian to ensure that benefits were paid to the proper beneficiary, asserting Guardian had a fiduciary duty

1 We construe the motion as a motion for summary judgment. “The Federal Rules of Civil Procedure contemplate no such mechanism as ‘judgment on the administrative record.’ Par ties should avoid the practice of requesting it, and courts should avoid purporting to grant it. Doing so often creates unneces sary work for an appellate court in deciding whet her to construe such a motion ex post as one for a bench trial . . . or as one for summary judgment

. ” Jewell v. Life Ins. Co. of N. Am. , 508 F.3d 1303, 1307 n.1 (10t h Cir. 2007) (citations a nd internal quotation marks omitted).5 to ensure there was no self-dealing or fra ud. He argued that Guardian’s single question posed to Andrea—whether the in sured was competent on August 27, 2013— was insufficient to satisfy its burden to conduct an ad equate investigation into potential fraud. He also argued that the August 27, 2013, beneficiary-change form was invalid because the insured’s employer did not have notice of it as required under the policy. The district court resolved the case in two separate orders. First, the court denied the motion for partial summary judg ment, ruling it would review Guardian’s denial of benefits under an arbitrary-and-capricious standa rd rather than de novo. Rejecting Stachmus’s procedural-irregularity argument, the court observed that he waited more than two years to file a formal claim and Guardian sought additional time to obtain additional in formation from him. Second, on the merits, the court entere d judgment in favor of Guardian. The court ruled that Guardian qua lified as a fiduciary, but Stach mus, as the claimant, bore the burden of showing he was entitled to be nefits and yet he failed to support his claim. The court also rejected his argum ent that the August 27, 2013, beneficiarychange form was invalid b ecause the insured’s employer did not have notice of the beneficiary change. The court cited evid ence indicating the employer knew about the beneficiary change, and it also noted that Stachmus admitted knowing about the beneficiary change in his October 28, 2013, letter to Guardian. Now on appeal, Stachmus contends:
1. The district court review ed Guardian’s decision u nder the wrong standard;6 2. The district court improperly consideredarguments that Guardian failed to preserve during the administrative process, specifically: a. that the insured’s employer knew about and approved the August 27, 2013, beneficiary change; and b. that Stachmus admitted in his Octobe r 28, 2013, letter that he knew he was removed as a beneficiary; and
3. The district court should have applied our precedent requiring administrators to investigate claims of wrong doing before paying benefits. We consider these arguments in turn.
II
A. Standard for Reviewing Guardian’s Decision “We review de novo the district court’s determination of the proper standard to apply in its review of an ERISA plan administrator’s decision.” Rasenack ex rel. Tribolet v. AIG Life Ins. Co. , 585 F.3d 1311, 1315 (10th Cir. 2009) (italics and internal quotation marks omitted). An administ rator’s denial of be nefits is reviewed de novo unless the “plan gives the administra tor or fiduciary discretionary authority to determine eligibility for benefits or to construe the term s of the plan.” Id. (internal quotation marks omitted). “Where the plan gives the administrator discretionary authority, . . . we employ a deferential st andard of review, asking only whether the denial of benefits wa s arbitrary and capricious

. ” LaAsmar v. Phelps Dodge Corp. Life, Accidental Death & Dismembe rment & Dependent Life Ins. Plan , 605 F.3d 789, 796 (10th Cir. 2010) (i nternal quotation marks omitted). Procedural irregularities such as the failure to rende r a timely decision within th e temporal limits prescribed7 by the plan or applicable regulati ons may warrant de novo review. See Rasenack , 585 F.3d at 1315-1316. It is undisputed that under the plan, Guar dian had “discretionary authority to determine eligibility for benef its and to construe the terms of the plan with respect to claims.” Aplt. App., Vol. VI at 142 (italics omitted). Cons equently, the district court properly applied the deferentia l arbitrary-and-capricious st andard unless a procedural irregularity suggests de novo re view was required. On this score, Stachmus contends Guardian delayed processing his administra tive appeal, warranting de novo review. We disagree. Stachmus submitted his administrative appeal on May 13, 2016. Under 29 C.F.R. § 2560.503-1(i)(1)( i), Guardian had 60 days to render a decision, unless it determined a 60-day extension was necessary to process the claim, in which case it was obliged to notify him of the special ci rcumstances requiring an extension and the date when it expected to render a decision. See LaAsmar , 605 F.3d at 797 (applying the regulatory timeline to th e administrative appeal pro cess). On May 31, 2016, Guardian acknowledged the appeal, notified Stachmus that it would render a decision within 60 days, and invited him to provide additional information to support his claim. Aplt. App., Vol. IV at 64-65. On July 8, 2016, having received no do cumentation from Stachmus, Guardian timely notified him by letter that it “requi re[d] an extension to allow [him] the time to provide [it] with [supporting documentati on] needed to provide [him] with a full and fair review.” Id. at 61. Guardian urged him to provide evidence indicating that8 the August 27, 2013, beneficiary-change form was not valid and that the insured was incompetent on that date. Gu ardian also alerted him that if the information was not received by September 5, 2016, it would is sue a decision based on the information it already possessed. On August 26, 2016, St achmus responded by letter, arguing that the power of attorney was void and that Gu ardian’s payment of Andrea’s claims was not supported by the record, but on ce again, he provided no supporting documentation. See id. at 55-57. Consequently, Guardian denied his appeal on October 10, 2016. Stachmus contends Guardian’s denial of his appeal was untimely because it was rendered more than 60 days after the Ju ly 8 notice of extension. However, under 29 C.F.R. § 2560.503-1(i)(4), if there is an extension “due to a claimant’s failure to submit information necessary to decide a claim, the period fo r making the benefit determination on review shall be tolled from the date on which the notification of the extension [was] sent to the claimant until th e date on which the claimant responds to the request for additional information.” This provision tolled the 60-day period from July 8—when Guardian notified Stachmu s it required additional information from him to process his claim—until August 26, when he responded with additional argument but no further information. Guardi an’s denial of his appeal on October 10 was therefore timely rendered within the 60- day extension. There was no procedural irregularity, and we therefore review Guar dian’s beneficiary determination under the deferential arbitrary-a nd-capricious standard.9 B. Beneficiary Determination “We review summary judgment orders de novo, using the same standards applied by the district court.” LaAsmar , 605 F.3d at 795. “Using the arbitrary and capricious standard, we ask whether the administrator’s decision was reasonable and made in good faith.” Eugene S. v. Horizon Blue Cross Blue Shield of N.J. , 663 F.3d 1124, 1133 (10th Ci r. 2011) (internal quotation marks omitted). We will uphold the decision “so long as it is predicated on a reasoned basis, and th ere is no requirement that the basis relied upon be the only logi cal one or even the superlative one.” Id. at 1134 (internal quotation mark s omitted). We examine th e record for substantial evidence to support the ad ministrator’s decision. See id.
1. The District Court Did Not Co nsider Unpreserved Arguments Stachmus does not directly contend that Guardian’s decision is unsupported by substantial evidence. Instead, he contends the district court “exceeded its authority” by considering two unpreserved arguments th at Guardian failed to advance during the administrative process: 1) that the insured’s employer knew about and approved the August 27, 2013, beneficiary change, and 2) that Stachmus admitted in his October 28, 2013, letter that he knew he was removed as a beneficiary. Aplt. Br. at 16, 17,
19. This contention is meritless. The dist rict court did not c onsider unpreserved arguments; it rejected Stachmus’s argument that the August 27, 2013, beneficiary change was invalid because the employer did not have notice of it as required by the policy. The court cited r ecord evidence indicating the employer had signed the claim10 form of Stachmus’s step-mother, demonstr ating the employer knew the beneficiaries had been changed. See Aplt. App., Vol. V at 159-60. The court also cited Stachmus’s October 28, 2013, letter to Guardi an in which he indicated he had been removed as a beneficiary, presumably to show that he, too, knew about the change and suggest that if he wished to contest its validity, he should ha ve done so sooner. There was nothing improper about citing re cord evidence to re ject Stachmus’s arguments. 2. Stachmus Bore the Burden to Show He Was a Beneficiary Stachmus also contends that Guardian, as a fiduciary, should have conducted a more rigorous investigation into Andrea’s claims. He acknowle dges that claimants generally bear the burden of esta blishing entitlement to benefits, see Hodges v. Life Ins. Co. of N. Am. , 920 F.3d 669, 680 (10th Cir. 2019), but Stachmus attempts to shift the burden to Guardian by arguing under Gaither v. Aetna Life Insurance Co. , 394 F.3d 792 (10th Cir. 2004), that an administrator has a fiduciary duty to investigate “readily availabl e information,” Aplt. Br. at 22 (internal quotation marks omitted). He says Guardian breached that duty. We are not persuaded.
In Gaither , we recognized that ERISA generally requires claimants to provide evidence to support their claims. See 394 F.3d at 804 (“[N]othing in ERISA requires plan administrators to go fi shing for evidence favorable to a claim when it has not been brought to their attenti on that such evidence exists.”). Yet we also recognized in that particular case th ere was specific plan language authorizing the administrator to obtain information necessary to resolve a claim—inform ation the administrator did11 not attempt to obtain. See id. at 804-06. Under those circumstances, we concluded “it was arbitrary and capricious for [the ad ministrator] to dism iss [the] claim . . . without at least attempting to obtain information . . . .” Id. at 806. Here, Stachmus refers us to no similar policy language authorizing Guardian to order and collect information in furtheran ce of its administrativ e role in processing claims. Instead, he merely urges us to adopt a broad reading of Gaither and impose upon administrators a blanket duty of investigation. But Gaither adopted only a “narrow principle that fiduciaries cannot shut their eyes to readily available information when the eviden ce in the record suggests th at the information might confirm the beneficiary’s theory of entit lement and when they have little or no evidence in the record to refute that theory.” Id. at 807. There was no evidence supporting Stachmus’s theory of entitlement, and although he was once a beneficiary, the evidence—including Stachmus’s own letter— indicated that the insured elected to change the beneficiary designations. Moreover, Guardian did not shut its eyes to any new information that might have been availa ble; instead, it repeat edly requested more information from Stachmus to as certain the validity of his claim, but he repeatedly offered nothing. On this record, we cannot say Guardian ignored readily available information.
C. Motion to Seal Apart from the merits of his appeal, Stachmus has filed an unopposed motion to seal the portion of the a ppendix containing the admini strative record because it includes personally identifying information s ubject to the district court’s protective12 order. 2 There is a presumption that the publ ic has a common-law right of access to the records informing this court’s deci sion, although a party may overcome that presumption by articulating a “real and substantial intere st” in keepi ng the records under seal. Eugene S. , 663 F.3d at 1135-36 (internal quotation marks omitted). We have previously granted motions to seal portions of the appendi x containing personal medical information or conf idential business records. See id. ; Williams v. FedEx Corp. Servs. , 849 F.3d 889, 905 (10th Ci r. 2017) (“[W]e have gr anted motions to seal medical records and internal confidential business records in ot her instances.”). Because Stachmus seeks to s eal similar information cont ained in the administrative record, we grant the motion to seal vol umes II through VI of the appendix.
D. Guardian’s Request for Fees & Costs Finally, Guardian included in its opening brief a request for appellate fees and costs. We deny the request. The relevant statutory provision, 29 U. S.C. § 1132(g)(1), states: “In any action . . . by a participant, beneficiary, or fiduciary, th e court in its discretion may allow a reasonable attorney’s fee and costs of action to e ither party.” This provision “grants district courts disc retion to award attorney’s fees to either party.” Hardt v. Reliance Standard Life Ins. Co. , 560 U.S. 242, 252 (2010) (emphasis and internal quotation marks omitted). Some courts “have held that this section [also] allows the

2 Although Stachmus filed the motion, it indicates that “[t]he arguments contained herein were provi ded to [Stachmus’s] counse l by Guardian’s counsel and are submitted by him on behalf of Guardi an, the party asking that the appellate appendix in this case be filed under seal.” Mot. at. 2.13 court to award attorney ’s fees on appeal.” Sokol v. Bernstein , 812 F.2d 559, 560 (9th Cir. 1987); see also, e.g. , Schwartz v. Gregori , 160 F.3d 1116, 1119 n.5 (6th Cir. 1998) (noting § 1132(g)(1) “permits recovery of attorney’s fees in connection with both trial court litigation and a ppellate litigation”). In c onsidering an award, courts should evaluate 1) the degree of the opposing parties’ culp ability or bad faith; 2) the opposing parties’ ability to satisfy a fee award; 3) whether a fee award would deter similar conduct; 4) whether th e party requesting fees s ought to benefit all plan participants and beneficiaries or resolv e a significant legal que stion under ERISA; and 5) the relevant merits of the parties’ positions. Van Steen v. Life Ins. Co. of N.
Am. , 878 F.3d 994, 1000 (10th Cir. 2018). Guardian does not address these factors. Instead, it sugges ts an award here would promote the ERISA goals of enhanci ng administrative efficiency and deterring protracted litigation. But it does not go so far as to suggest that Stachmus brought this appeal in bad faith. Indeed, the circumst ances surrounding the August 27, 2013, beneficiary change seem debatable e nough that we cannot say Stachmus was unjustified in challenging it a nd pursuing his appeal. Furt her, there is no indication Stachmus could satisfy any fee award, 3 nor do we think a fee award would deter other potential ERISA claimants from pursuing similar claims. Also, there was no significant benefit sought or legal question resolved by this appeal, although the

3 Stachmus is presently serving a sent ence of life in prison without the possibility of parole. See Stachmus v. Rudek , 613 F. App’x 691, 692 (10th Cir. 2015).14 merits do weigh in favor of Guardian. Nonetheless, where th e balance of these factors weigh in Stachmus’s favor, we deny Guardian’s request fo r fees and costs.
III The judgment of the dist rict court is affirmed. Stachmus’s motion to seal volumes II through VI of the appendix is gran ted, and Guardian’s request for fees and costs is denied.

Entered for the Court

Allison H. Eid Circuit Judge