No. 16-20174

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

________________________________________

ARIANA M.,

Plaintiff-Appellant

v.

HUMANA HEALTH PLANS OF TEXAS, INCORPORATED,

Defendant-Appellee.

________________________________________

On Appeal from the United States District Court

for the Southern District of Texas

No. 4:14-cv-03206

Honorable Lee H. Rosenthal

________________________________________

Brief of the Secretary of Labor as Amicus Curiae 

in Support of Plaintiff-Appellant

________________________________________

 NICHOLAS C. GEALE JEFFREY M. HAHN

 Acting Solicitor of Labor KATRINA LIU

 Attorneys

 G. WILLIAM SCOTT U.S. Department of Labor

 Associate Solicitor for 200 Constitution Ave., N.W.

 Plan Benefits Security Room N-4611

 Washington, D.C. 20210

 THOMAS TSO (202) 693-5632

 Counsel for Appellate and

 Special Litigation
i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ............................................................................... ii

QUESTION PRESENTED...................................................................................1

SECRETARY'S INTEREST ................................................................................1

STATEMENT OF THE CASE.............................................................................2

SUMMARY OF THE ARGUMENT ...................................................................5

ARGUMENT........................................................................................................6

I. Pierre is Not Consistent with the Supreme Court's Reasoning in 

Firestone................................................................................................6

II. Subsequent Supreme Court and Circuit Court Decisions Undermine 

Pierre's Reasoning.............................................................................. 12

III. Overturning Pierre Advances the Secretary's Interest in Ensuring Full 

and Fair Review of Benefits Denials and Uniform ERISA 

Enforcement........................................................................................ 17

CONCLUSION.... ............................................................................................. 22
ii

TABLE OF AUTHORITIES

Federal Cases:

Ariana M. v. Humana Health Plan of Texas, Inc.,

854 F.3d 753 (5th Cir. 2017) ........................................................................ passim

Ariana M. v. Humana Health Plan of Texas, Inc.,

163 F. Supp. 3d 432 (S.D. Tex. 2016)....................................................................3

Conkright v. Frommert,

559 U.S. 506 (2010)..............................................................................................13

Crosby v. La. Health Serv. and Indem. Co.,

647 F.3d 258 (5th Cir. 2011) ................................................................................16

Dutka ex rel Estate of T.M. v. AIG Life Ins. Co.,

573 F.3d 210 (5th Cir. 2009) ................................................................................12

Firestone Tire & Rubber Co. v. Bruch,

489 U.S. 101 (1989)...................................................................................... passim

Fontaine v. Met. Life Ins. Co.,

800 F.3d. 883 (7th Cir. 2015) ........................................................................ 22 n.3 

Gobeille v. Liberty Mut. Ins. Co.,

136 S. Ct. 936 (2017)........................................................................................1, 17

Gulf Underwriters Ins. Co. v. Great W. Cas. Co.,

278 F. App'x 454 (5th Cir. 2008)..........................................................................21

Halo v. Yale Health Plan, Director of Benefits & Records Yale Univ.,

819 F.3d 42 (2d Cir. 2016) ...................................................................................19
iii

Federal Cases-(continued):

Heimeshoff v. Hartford Life & Acc. Ins. Co.,

134 S. Ct. 604 (2013)..................................................................................... 11, 16

Kinstler v. First Reliance Standard Life Ins. Co.,

181 F.3d 243 (2d Cir. 1999) .................................................................................14

Luby v. Teamsters Health, Welfare & Pension Trust Funds,

944 F.2d 1176 (3d Cir. 1991) ...........................................................................7, 14

Meditrust Fin. Servs. Corp. v. Sterling Chems., Inc.,

168 F.3d 211 (5th Cir. 1999) ..................................................................................3

Metro. Life Ins. Co. v. Glenn,

554 U.S. 105 (2008)............................................................................. 4, 12, 13, 16

Orndorf v. Paul Revere Life Ins. Co.,

404 F.3d 510 (1st Cir. 2005).................................................................................16

Pierre v. Conn. Gen. Life Ins. Co.,

932 F.2d 1552 (5th Cir. 1991) ...................................................................... passim

Quesinberry v. Life Ins. Co.,

987 F.2d 1017 (4th Cir. 1993) ....................................................................... 14, 16

Ramsey v. Hercules, Inc.,

77 F.3d 199 (7th Cir. 1996) ........................................................................... 14, 15

Reinking v. Philadelphia Am. Life Ins. Co.,

910 F.2d 1210 (4th Cir. 1990), overruled on grounds by,

Quesinberry v. Life Ins. Co. of N. Am.,

987 F.2d 1017 (4th Cir. 1993) ..............................................................................14
iv

Federal Cases-(continued):

Riedl v. General Am. Life Ins. Co.,

248 F.3d 753 (8th Cir. 2001) ............................................................................7, 14

Rowan v. Unum Life Ins. Co. of Am.,

119 F.3d 433 (6th Cir. 1997) ................................................................... 14, 15, 16

Rush Prudential HMO, Inc. v. Moran,

536 U.S. 355 (2002).................................................................................... 1,13, 14

S. Farm Bureau Life Ins. Co. v. Moore,

993 F.2d 98 (5th Cir. 1993) ..................................................................................19

Sec'y of Labor v. Fitzsimmons,

805 F.2d 682 (7th Cir. 1986) (en banc)..................................................................1

Shaw v. Conn. Gen. Life. Ins. Co., 

353 F.3d 1276 (11th Cir. 2003) ............................................................................14

US Airways, Inc. v. McCutchen,

133 S. Ct. 1537 (2013)..........................................................................................11

Varity Corp. v. Howe,

516 U.S. 489 (1996)..............................................................................................13

Walker v. Am. Home Shield Long Term Disability Plan,

180 F.3d 1065 (9th Cir. 1999) ..............................................................................14

Federal Statutes:

Labor Management Relations Act:

29 U.S.C. § 186(c) .....................................................................................................8
v

Federal Statutes-(continued):

Employee Retirement Income Security Act of 1974,

as amended, 29 U.S.C. § 1001 et seq.:

Section 2, 29 U.S.C. § 1001....................................................................................1

Section 402(a)(1), 29 U.S.C. § 1102(a)(1) ...........................................................16

Section 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B)......................................... passim

Section 502(a), 29 U.S.C. § 1132(a).....................................................................19

Section 502(e), 29 U.S.C. § 1132(e).......................................................................9

Section 503, 29 U.S.C. § 1133..........................................................................1, 18

Section 503(2), 29 U.S.C. § 1133(2)....................................................................18

Public Health and Welfare (Title 42):

42 U.S.C. § 300gg-19...........................................................................................2 n.2

State Regulations:

Cal. Ins. Code § 10110.6..........................................................................................20

Ill. Admin. Code tit. 50, § 2001.3 ............................................................................20

Tex. Ins. Code § 1701.062.......................................................................................20

Miscellaneous: 

29 C.F.R. § 2560.503-1............................................................................................18

29 C.F.R. § 2560.503-1(a) .......................................................................................18
vi

Miscellaneous-(continued): 

29 C.F.R. § 2560.503-1(l)........................................................................................18

29 C.F.R. § 2590.715–2719.............................................................................. 20 n.2

29 C.F.R. § 2590.715–2719(d)(2)(iii)(A)(1) .................................................... 20 n.2

29 C.F.R. § 2590.715–2719(d)(2)(iii)(B)(5)..................................................... 20 n.2

29 C.F.R. § 2590.715–2719(d)(3)(iii)(B) ......................................................... 20 n.2

29 C.F.R. § 2590.715–2719(c)(2)(ix)............................................................... 20 n.2

Claims Procedure, 65 Fed. Reg. 70246-01, 70255-56 (2000).......................... 18, 19

Group Health Plans and Health Insurance Issuers: Rules Relating to Internal 

Claims and Appeals and External Review Processes, 76 Fed. Reg. 37208-01, 

37213 (2012).........................................................................................................19

H.R. Rep. No. 93–533 (1974),

as reprinted in, 1974 U.S.C.C.A.N. 4639, 4642-43...................................................9

Bradley R. Duncan, Judicial Review of Fiduciary Claim Denials Under ERISA: 

An Alternative to the Arbitrary and Capricious Test,

71 Cornell L. Rev. 986 (1986)................................................................................8

Robert W. Klein, Insurance Regulation in Transition, 62 J. Risk & Ins., 

373 (1995)...................................................................................................... 20, 21

Restatement (Second) of Trusts § 4 cmt. d (Am. Law Inst. 1959)..........................10

Restatement (Second) of Trusts § 187 (Am. Law Inst. 1959).................................12
1

QUESTION PRESENTED

In Pierre v. Connecticut General Life Insurance Co., 932 F.2d 1552 (5th Cir. 

1991), this Court held that a plan administrator's factual findings made in the 

course of denying a claim for benefits should be reviewed by a district court for 

abuse of discretion in actions under the Employee Retirement Income Security Act 

of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq., even where the plan does not 

expressly grant the administrator discretion to decide benefit claims. The question 

presented here is whether the Court should overturn Pierre and hold that factual 

findings made by a plan administrator that has not been granted discretion in 

deciding benefit claims should be reviewed de novo. 

SECRETARY'S INTEREST

The Secretary of Labor bears primary responsibility for interpreting and 

enforcing Title I of ERISA, 29 U.S.C. § 1001 et seq. Sec'y of Labor v. 

Fitzsimmons, 805 F.2d 682, 691 (7th Cir. 1986) (en banc). In this role, the 

Secretary has a substantial interest in ensuring that plan participants receive full 

and fair review of benefit denials as ERISA requires. See 29 U.S.C. § 1133. He 

also has a strong interest in ensuring that protections provided by ERISA are 

implemented uniformly across the nation. See Gobeille v. Liberty Mut. Ins. Co., 

136 S. Ct. 936, 943–44 (2016); Rush Prudential HMO, Inc. v. Moran, 536 U.S. 

355, 385 (2002). 
2

STATEMENT OF THE CASE

On November 7, 2014, Plaintiff-Appellant Ariana M. filed an action for 

medical benefits under an ERISA-governed employee benefit plan against 

Defendant-Appellees Humana Health Plan of Texas, Inc. ("Humana") and Eyesys 

Vision Inc. Plan ("Plan"). Humana insures and administers the Plan, under which 

Ariana M. was eligible for benefits as the dependent of a plan participant. Compl. 

¶¶ 3, 7. Ariana M. suffered from mental illness, including a six-year history of an 

eating disorder, and needed medical treatment. Id. ¶ 8. Humana initially approved 

her claim for partial hospitalization, but, after a series of extensions, Humana 

denied continued partial hospitalization based on its determination that 

hospitalization was no longer "medically necessary." Id. ¶¶ 10–25. After 

exhausting her appeals with Humana, Ariana M. brought suit, claiming that she 

was wrongfully denied medical benefits. Id. ¶ 33.

During proceedings before the district court, Ariana M. filed a motion to 

determine the standard of review, arguing that the court should employ a de novo

standard in reviewing Humana's decision to deny her claim for benefits. Ariana M. 

v. Humana Health Plan of Texas, Inc., 854 F.3d 753, 756 (5th Cir. 2017) (panel 

decision). In response, Humana conceded the standard of review for its 

interpretations of the plan's terms is de novo, id., because Humana "did not argue 

to the District Court that any provision in the Plan granted it discretion," Humana 
3

Panel Br., at 10. But Humana argued that, under this Court's precedent, its factual 

findings should be reviewed under an abuse of discretion standard whether or not 

the Plan included a valid discretionary clause. Ariana M., 854 F.3d at 756.

1 The 

district court agreed with Humana's arguments. Id. Humana then filed for 

summary judgment, which the court granted. See Ariana M. v. Humana Health 

Plan of Texas, Inc., 163 F. Supp. 3d 432, 443 (S.D. Tex. 2016) (district court 

decision). Though acknowledging that Humana's construction of plan terms is to 

be reviewed de novo, the district court reviewed Humana's factual findings for 

abuse of discretion, citing Meditrust Fin. Servs. Corp. v. Sterling Chems., Inc., 168 

F.3d 211, 213 (5th Cir. 1999), which relied on Pierre. Id. at 439. The district court 

concluded that Humana had not abused its discretion in finding that continued 

partial hospitalization treatment for Ariana M. was not medically necessary. Id. at

442.

Ariana M. appealed to this Court, arguing in part that the district court erred 

in reviewing Humana's factual findings for abuse of discretion, instead of de novo. 

Ariana M., 854 F.3d at 756. A panel of this Court noted that while the text of 

ERISA does not directly address the standard of review to be applied in reviewing 

plan-administrator's benefits decisions, the Supreme Court did so in Firestone Tire 

 1 A "discretionary clause" is a provision that delegates discretionary authority to 

the plan administrator or other fiduciary to decide plan benefits, and where those 

clauses apply to a benefits decision, courts review those decisions for an abuse of 

discretion. Ariana M., 854 F.3d at 756. 
4

& Rubber Co. v. Bruch, 489 U.S. 101 (1989). Ariana M., 854 F.3d at 756. The 

panel then discussed this Circuit's decision in Pierre, which interpreted Firestone to 

"not require de novo review for factual determinations" and found instead that "an 

abuse of discretion standard of review is appropriate." Id. (quoting Pierre, 932 

F.2d at 1553). The panel held that this deferential standard of review applies even 

if the plan document does not grant the plan administrator discretionary authority 

to decide plan benefits. Id. at 756–57. Accordingly, the panel affirmed the district 

court's decision that Humana did not abuse its discretion in denying Ariana M.'s 

benefits. Id. at 762.

Though it affirmed the district court, the panel lent credence to Plaintiff's 

critique of Pierre. Id. at 757 n.2. The panel acknowledged, "Plaintiff is not alone 

in her criticism of Pierre; indeed, Pierre has been rejected by most other Circuit 

Courts." Id. The panel also explained that as states increasingly ban discretionary 

clauses in insurance policies—leaving courts to supply the standard of review—

Pierre's impact is likely only to grow. Id. Indeed, all three judges on the panel 

joined a special concurrence in which they questioned the continued viability of 

Pierre. Id. at 763. The concurrence listed the weaknesses of Pierre, including its 

incongruence with the post-Firestone Supreme Court decision in Metro. Life Ins. 

Co. v. Glenn, 554 U.S. 105 (2008), its potential mischaracterization of trust law, 
5

and its faulty analogy to appellate review of trial court and administrative agency 

decisions. Id. at 763–765 (Costa, Prado, & Higginson, JJ., specially concurring). 

Ariana M. successfully petitioned for rehearing en banc. Her petition argued 

that the panel incorrectly deferred to the factual findings of the benefit plan 

administrator, contrary to decisions by the Supreme Court and other Circuit Courts. 

These decisions, she contends, support de novo review of the factual findings 

underlying Humana's denial of benefits.

SUMMARY OF ARGUMENT

ERISA does not specify the standard of review a district court should apply 

in reviewing a plan administrator's benefits determination in a suit pursuant to 29 

U.S.C. section 1132(a)(1)(B). In Firestone Tire & Rubber Co. v. Bruch, the 

Supreme Court held that the default standard is de novo review, unless a plan 

provision grants discretionary authority for deciding benefit claims to the plan 

administrator or another fiduciary, in which case the standard is more deferential. 

489 U.S. at 115. This Circuit interpreted Firestone to hold that even where a plan 

does not grant the administrator discretion, its factual findings are nonetheless 

reviewed for abuse of discretion, whereas the administrator's interpretation of plan 

terms is reviewed de novo. Pierre, 932 F.2d at 1558. 

This Circuit should overturn Pierre and hold that de novo review applies to 

both a plan administrator's factual findings and interpretations of plan language, 
6

and that an abuse of discretion standard is applied to both only if the plan grants 

discretionary authority to the administrator to decide claims. Reviewing a plan 

administrator's factual findings for abuse of discretion even where the plan does 

not confer discretion is undermined by post-Firestone Supreme Court precedent

and is inconsistent with case law in nearly every sister circuit and with policy

rationales recognized by those circuits. By aligning this Circuit's law with that of 

other circuits, this Court could promote compliance with the Department of Labor's 

claims-procedure regulation, which implements the statutory requirement that 

plans provide participants and beneficiaries a full and fair review of denied claims, 

as well as the uniform enforcement of ERISA.

ARGUMENT

I. Pierre is Not Consistent with the Supreme Court's Reasoning in

Firestone

In Firestone, the Supreme Court stated, "we hold that a denial of benefits 

challenged under [29 U.S.C.] § 1132(a)(1)(B) is to be reviewed under a de novo

standard unless the benefit plan gives the administrator or fiduciary discretionary 

authority to determine eligibility for benefits or to construe the terms of the plan." 

489 U.S. at 115. On its face, the phrase "a denial of benefits" is not limited to 

denials based on interpretation of plan terms, but also encompasses denials based 

on factual determinations. And the phrase "to determine eligibility for benefits" 

similarly encompasses interpretive and factual bases for the determination. See
7

Riedl v. Gen. Am. Life Ins. Co., 248 F.3d 753, 756 (8th Cir. 2001) ("Often an 

employee's eligibility for benefits under a plan depends both on an administrator's 

determination of certain facts, and on the application of those facts to the terms of 

the plan.").

Pierre read Firestone more narrowly, seizing on Firestone's earlier statement 

that "[t]he discussion that [sic] follows is limited to the appropriate standard of 

review in § 1132(a)(B)(1) [sic] actions challenging denials of benefits based on 

plan term interpretations," Pierre, 932 F.2d at 1556 (emphasis in original) (quoting 

Firestone, 489 U.S. at 108), which this Court interpreted as leaving it free to hold 

that a different standard of review should apply to factual findings. But read in 

context, the earlier Firestone statement was merely distinguishing between actions 

under section 1132(a)(1)(B) and actions under other provisions of ERISA, not 

between benefit decisions that implicate plan terms and those that do not. See

Firestone, 489 U.S. at 108 ("We express no view as to the appropriate standard of 

review for actions under other remedial provisions of ERISA."); Luby v. Teamsters 

Health, Welfare & Pension Trust Funds, 944 F.2d 1176, 1183 (3d Cir. 1991). 

Pierre's adoption of a default rule of abuse of discretion review of factual findings 

made by a plan administrator in determining benefit decisions—even where the 

plan does not confer such discretion—was therefore based on a questionable 

reading of Firestone.
8

Moreover, Pierre did not fully consider Firestone's rationales for de novo 

review as a default standard, which apply with the same force to an administrator's 

factual findings as they do to its plan term interpretations. The Court first 

grounded its decision in Firestone on the right to judicial review that ERISA 

confers on plan participants. The Court explained that unlike the Labor 

Management Relations Act ("LMRA"), 29 U.S.C. § 186(c), whose arbitrary-andcapricious standard lower courts had grafted onto their review of ERISA claims,

"ERISA explicitly authorizes suits against fiduciaries and plan administrators to 

remedy statutory violations, including breaches of fiduciary duty and lack of 

compliance with benefit plans." Firestone, 489 U.S. at 109–10. Because ERISA 

grants plan participants a private right of action and the LMRA does not, the Court 

concluded that "LMRA principles offer no support for the adoption of the arbitrary 

and capricious standard insofar as § 1132(a)(1)(B) is concerned." Id. at 110. 

"This contrast—between the questionable (if not fictional) basis for review under 

the LMRA and ERISA's unambiguous grant of review authority—weakens the 

argument for perpetuating § 302(c)(5)'s arbitrary and capricious test under 

ERISA." Bradley R. Duncan, Judicial Review of Fiduciary Claim Denials Under 

ERISA: An Alternative to the Arbitrary and Capricious Test, 71 Cornell L. Rev. 

986, 994 n.40 (1986) (cited by Firestone, 489 U.S. at 110). Of course, ERISA's 

right to judicial review of decisions denying benefits does not depend on whether 
9

the participant is challenging the plan administrator's factual findings or its plan 

interpretations. 

If anything, Pierre's adoption of a deferential standard for a fiduciary's 

factual determinations for ERISA section 502(a)(1)(B) claims, far from being 

justified by ERISA's right to judicial review, is in some tension with it. Not only 

does ERISA allow participants and beneficiaries to bring claims for plan benefits

in court, 29 U.S.C. § 1132(a)(1)(B), as the Court in Firestone noted, it also 

specifically identifies "ready access to the Federal courts" as one of its policies, id.

§ 1001(b), and provides concurrent jurisdiction over benefit claims to both state 

and district courts, id. § 1132(e). In fact, Congress intended ERISA to provide 

more protection and oversight over "rights and benefits due to workers" than the 

pre-existing law. E.g., H.R. Rep. No. 93-533 (1973), reprinted in 1974

U.S.C.C.A.N. 4639, 4642–43. Under pre-existing law, denials of benefits "were 

governed by principles of contract law. If the plan did not give the employer or 

administrator discretionary or final authority to construe uncertain terms, the court 

reviewed the employee's claims as it would any other contract claim—by looking 

to the terms of the plan and other manifestations of the parties' intent." Firestone, 

489 U.S. at 112–13. The Supreme Court thus explained that adopting a default 

deferential standard of review, as Pierre adopted for factual findings, "would 

require us to impose a standard of review that would afford less protection to 
10

employees and their beneficiaries than they enjoyed before ERISA was enacted." 

Id. at 113–14. These principles favor a default de novo standard of review with 

respect to the entire ERISA right of action, including actions challenging factual 

findings. 

Any relaxation in the standard of review of ERISA benefit-claim denials, 

according to the Supreme Court in Firestone, should be "guided by principles of 

trust law." Id. at 110. Those trust-law principles, which animate the 

Congressional intent underlying many of ERISA's requirements, place a primacy 

on the plan sponsor's intent with respect to the plans' benefits as embodied in the 

terms of the governing trust instruments. Id. at 111–12 ("The terms of trusts 

created by written instruments are 'determined by the provisions of the instrument 

as interpreted in light of all the circumstances and such other evidence of the 

intention of the settlor with respect to the trust as is not inadmissible.'" (quoting 

Restatement (Second) of Trusts § 4 cmt. d (1959)). Under trust law, when 

determining the benefits and rights under a trust agreement, the standard for 

judicial review over a trustee's decision turns on whether the trust agreement 

delegates discretionary authority over that decision to the trustee. Id. at 111. If no 

delegation exists, courts construe terms in trust agreements as they would 

contractual provisions: "without deferring to either party's interpretation." Id. at 

112. In short, Firestone made clear that the standard of review to apply to plan 
11

administrator's denials of benefits turns only on whether or not the plan delegates 

discretion to the plan administrator, not on the type of decision—factual or 

interpretive—a plan administrator makes. See id. 

Firestone's conclusion that the plan document, not the nature of the decision, 

controls the standard of review for benefits determinations is consistent with the 

principle that "[t]he plan, in short, is at the center of ERISA." US Airways, Inc. v. 

McCutchen, 133 S.Ct. 1537, 1548 (2013). The primacy Firestone places on the 

plan document for benefit claims also is consistent with the Court's subsequent 

ERISA cases concerning benefit claims. E.g., Heimeshoff v. Hartford Life & Acc. 

Ins. Co., 134 S. Ct. 604, 616 (2013) ("[T]he parties' agreement [on the limitations 

period for benefit claims] should be enforced unless the limitations period is 

unreasonably short or foreclosed by ERISA."). The Supreme Court's focus on the 

plan's language is rooted in the ability of the drafters of plan documents, like trust 

agreements, to define the parameters for resolving disputes over claims arising out 

of its terms. Firestone, 489 U.S. at 115 ("Neither general principles of trust law 

nor a concern for impartial decisionmaking, however, forecloses parties from 

agreeing upon a narrower standard of review."). 

Finally, Pierre's rule that factual findings are always reviewed for abuse of 

discretion, regardless of what the plan says, could actually confer on the plan 

administrator a power that the plan sponsor did not intend the trust agreement to 
12

confer. Under the logic of Pierre, a plan sponsor could refuse to delegate 

discretion over fact-finding to the plan administrator, but the court would still 

accord deference to the plan administrator. Such an outcome certainly is at odds 

with the Firestone decision as well as the principles of ERISA and trust law. 

Compare Firestone, 489 U.S. at 111–113 ("Whether 'the exercise of a power is 

permissive or mandatory depends upon the terms of the trust.'") (citation omitted); 

29 U.S.C. § 1102(a)(1) ("Every employee benefit plan shall be established and 

maintained pursuant to a written instrument."); Restatement (Second) of Trusts § 

187 (1959) ("Where discretion is conferred upon the trustee with respect to the 

exercise of a power, its exercise is not subject to control by the court, except to 

prevent an abuse by the trustee of his discretion."), with Dutka ex rel. Estate of 

T.M. v. AIG Life Ins. Co., 573 F.3d 210, 212 (5th Cir. 2009) ("[T]his Circuit reads 

[Firestone] as speaking only to questions of law; thus, with or without a discretion 

clause, a district court rejects an administrator's factual determinations in the 

course of a benefits review only upon the showing of an abuse of discretion.").

II. Subsequent Supreme Court and Circuit Court Decisions Undermine 

Pierre's Reasoning

The Supreme Court has re-affirmed in subsequent cases that the standard of 

review of plan administrators' benefits decisions depends on the terms of the plan 

document, not on whether the decision at issue is factual or interpretive in nature. 

As the Court put it in Glenn, "[p]rinciples of trust law require courts to review a 
13

denial of plan benefits 'under a de novo standard' unless the plan provides to the 

contrary." 554 U.S. at 111 (quoting Firestone, 489 U.S. at 115); see Conkright v. 

Frommert, 559 U.S. 506, 512 (2010) ("We recognized that, under trust law, the 

proper standard of review of a trustee's decision depends on the language of the 

instrument creating the trust."); accord Varity Corp. v. Howe, 516 U.S. 489, 514 

(1996) ("[C]haracterizing a denial of benefits as a breach of fiduciary duty does not 

necessarily change the standard a court would apply when reviewing the 

administrator's decision to deny benefits."). The Supreme Court has repeatedly 

interpreted the Firestone holding requiring de novo review of plan-administrator 

decisions to encompass a "denial of benefits" generally, not just a construction of 

plan terms. See, e.g., Metro. Life Ins. Co., 554 U.S. at 111.

Rush Prudential HMO, Inc. v. Moran is instructive. 536 U.S. 355 (2002). 

In Rush, the insurer argued that a state law interfered with the supposedly 

deferential standard by which courts reviewed benefit denials under ERISA. Id. at 

384. The law provided for independent medical review of certain benefit denials, 

including whether a treatment was medically necessary. See id. at 359, 383. The

Court rejected the premise that ERISA entitled insurers to deferential review, 

stating that ERISA merely requires "a uniform judicial regime of categories of 

relief and standards of primary conduct, not a uniformly lenient regime of 

reviewing benefit determinations." Id. at 385 (emphasis added). The Court then 
14

explained that de novo review, the default standard, becomes deferential review 

only "if the ERISA plan itself provide[s] that the plan's benefit determinations were 

matters of high or unfettered discretion." Id. at 385–86 (citing Firestone, 489 U.S. 

at 115). But under Pierre, because the question of "whether a proposed treatment 

is medically necessary is a factual determination," it is "therefore reviewed for 

abuse of discretion" regardless of the level of discretion accorded by the plan. 

Ariana M., 854 F.3d at 761.

And as the panel in this case pointed out, Ariana M., 854 F.3d at 757 n.2, the 

majority of circuit courts have held that, under Firestone, de novo is the 

appropriate default standard for reviewing plan-benefits denials, often explicitly 

rejecting any distinction between review of a plan administrator's factual findings 

and its interpretations of plan terms. See Shaw v. Conn. Gen. Life. Ins. Co., 353 

F.3d 1276, 1285 (11th Cir. 2003); Riedl, 248 F.3d at 756; Kinstler v. First Reliance 

Standard Life Ins. Co., 181 F.3d 243, 249–251 (2d Cir. 1999); Walker v. Am. 

Home Shield Long Term Disability Plan, 180 F.3d 1065, 1069 (9th Cir. 1999); 

Rowan v. Unum Life Ins. Co. of Am., 119 F.3d 433, 435 (6th Cir. 1997); Ramsey 

v. Hercules, Inc., 77 F.3d 199, 204 (7th Cir. 1996); Luby, 944 F.2d at 1183; 

Reinking v. Phila. Am. Life Ins. Co., 910 F.2d 1210, 1213–14 (4th Cir. 1990), 

overruled on other grounds by Quesinberry v. Life Ins. Co. of N. Am., 987 F.2d 

1017 (4th Cir. 1993). For example, in adopting a de novo default standard of 
15

review for both factual determinations and plan interpretations, the Sixth and 

Seventh Circuits explained how trust law did not support the distinction between 

the two made in Pierre. See Rowan, 119 F.3d at 436 ("The Restatement [(Second) 

of Trusts] language on which the Fifth Circuit relied does not provide any basis for 

distinguishing between court review of factual determinations and review of 

interpretations of claim language."); Ramsey, 77 F.3d at 203–04 (noting how the 

Fifth Circuit's conclusion that factual determinations by plan administrators are 

always reviewed under a deferential standard is "fundamentally inconsistent with 

trust law"). As both decisions recognized, under the law of trusts, courts review 

the trustee's decisions as a whole under a single standard of review. See Ramsey, 

77 F.3d at 203 ("Under general principles of trust law, courts do not alter the 

standard under which they review a trustee's decision based on the characterization 

of that decision as interpretive or factual." (citing authorities)).

Moreover, the panel in this case and other courts have also called into 

question Pierre's rationales for according deference to factual findings: Pierre's 

analogy to the deference given to administrative adjudicators and its fear that a 

more onerous standard of review would lead to a flood of litigation. See Ariana 

M., 854 F.3d at 764–65 (Costa, Prado, & Higginson, JJ., specially concurring) 

(discussing the rationales in Pierre, 932 F.2d at 1558–59). With respect to the 

former rationale, this Court explained in Ariana M. that whereas administrative 
16

adjudicators are neutral factfinders, "ERISA plan administrators often have 

conflicts of interest as many both decide and pay claims." Id. The Supreme Court, 

far from supporting Pierre's analogy to administrative adjudicators, has 

"reinforced" the distinction between administrative adjudicators and plan 

administrators by holding that a plan administrator's conflict should be taken into 

account even under abuse of discretion review. Ariana M., 854 F.3d at 764 

(discussing Metro. Life Ins. Co., 554 U.S. at 115). Granting conflicted 

decisionmakers deference even when the plan does not call for it would afford plan 

participants less protection than they enjoyed before ERISA was enacted. Id. at 

764–65; Rowan, 119 F.3d at 436.

Further, the Pierre Court's fears have not come to fruition as other circuits 

have capably applied a de novo regime without being inundated by litigation. For 

example, district courts, including those in the Fifth Circuit, have generally limited 

their review of the merits of a benefits determination to the record at the time of 

the plan administrator's decision. See, e.g., Crosby v. La. Health Serv. and Indem. 

Co., 647 F.3d 258, 263 (5th Cir. 2011); Orndorf v. Paul Revere Life Ins. Co., 404 

F.3d 510, 519 (1st Cir. 2005); Quesinberry, 987 F.2d at 1025; see also Heimeshoff, 

134 S. Ct. at 614. Allowing de novo review in actions to recover plan benefits 

would not abrogate this Circuit's precedent that evidentiary review is ordinarily 

limited to the existing administrative record. See Crosby, 647 F.3d at 263. It 
17

would also leave in place the discretion that district courts have in controlling 

discovery on other factual issues such as the completeness of the administrative 

record, whether the plan administrator complied with procedural requirements, and 

the existence and extent of a conflict of interest. See id. at 263–64; see also Ariana 

M., 854 F.3d at 765 (Costa, Prado, & Higginson, JJ., specially concurring) (noting 

that "[n]o administrative difficulties are evident from [other] circuit's de novo

review of benefit denials that rest on factual determinations," and stating that 

"courts can appoint independent experts to evaluate complicated medical 

evidence"). 

III. Overturning Pierre Advances the Secretary's Interest in Ensuring Full 

and Fair Review of Benefits Denials and Uniform ERISA Enforcement

The circuit split presented here is of particular concern to the Secretary of 

Labor because it undermines the Secretary's regulatory mandate to ensure "full and 

fair review" of decisions to deny benefits and his interest in uniform ERISA 

enforcement. ERISA, which generally does not guarantee substantive benefits, 

creates "certain oversight systems and other standard procedures" to ensure that 

benefits provided by an employer are secure. Gobeille, 136 S. Ct. at 943–44. 

"Those systems and procedures are intended to be uniform." Id. One procedure 

that ERISA requires of employee benefit plans is to provide the plan's participants 

an opportunity for a "full and fair review" of decisions to deny benefits, 29 U.S.C. 

§ 1133(2), as embodied in the Department of Labor's claims-procedure regulation. 
18

See 29 C.F.R. § 2560.503-1. Not only does Pierre undercut ERISA's "full and fair 

review" guarantee and the regulation that implements it, it also creates a 

disuniform system of ERISA enforcement.

Congress specifically authorized the Secretary to promulgate regulations 

carrying out ERISA's "full and fair review" requirement. 29 U.S.C. § 1133. The 

Secretary, in turn, promulgated 29 C.F.R. section 2560.503-1, which "sets forth 

minimum requirements for employee benefit plan procedures pertaining to claims 

for benefits by participants and beneficiaries . . . ." 29 C.F.R. § 2560.503-1(a). 

And if a plan does not satisfy those standards, the regulation provides that a 

claimant will be deemed to have exhausted administrative remedies and may seek 

immediate judicial review of the merits of the decision denying benefits. Id. § 

2560.503-1(l). The Department of Labor specifically explained in its regulatory 

preamble that the purpose of the regulation's deemed-exhausted provision was "to 

clarify that the procedural minimums of the regulation are essential to procedural 

fairness and that a decision made in the absence of the mandated procedural 

protections should not be entitled to any judicial deference." Claims Procedure, 65 

Fed. Reg. 70246-01, 70255 (2000) (emphasis added). It continued: 

In the view of the Department, the standards in the regulation 

represent essential aspects of the process to which a claimant should 

be entitled under section 503 of the Act [i.e., 29 U.S.C. § 1133]. A 

plan’s failure to provide procedures consistent with these standards 

would effectively deny a claimant access to the administrative review 

process mandated by the Act. . . . At a minimum, claimants denied 
19

access to the statutory administrative review process should be 

entitled to take that claim to a court under section 502(a) of the Act 

for a full and fair hearing on the merits of the claim. 

Id. at 70256 (emphasis added); see also Group Health Plans and Health Insurance 

Issuers: Rules Relating to Internal Claims and Appeals and External Review 

Processes, 76 Fed. Reg. 37208-01, 37213 (2011). Thus, where the plan 

administrator fails to provide reasonable procedures consistent with the claimsprocedure regulation, reviewing courts in other circuits apply de novo review to the 

administrator's factual findings. See, e.g., Halo v. Yale Health Plan, Dir. of 

Benefits & Records Yale Univ., 819 F.3d 42, 54–58 (2d Cir. 2016) (discussing 

cases). 

In contrast, the practical consequence of Pierre's rule is to effectively 

insulate the fiduciary's fact-finding from de novo review in all cases, even where 

the fiduciary violates the Secretary's regulations. See S. Farm Bureau Life Ins. Co. 

v. Moore, 993 F.2d 98, 101 (5th Cir. 1993) (concluding that, where a fiduciary 

violated pre-2000 claims-procedure regulation by failing to provide any written 

notice of a benefits denial, Pierre's abuse of discretion standard nevertheless 

applied, stating, "In our view, the standard of review is no different whether the 

claim is actually denied or is deemed denied. The role of the district court is the 

same in either event" (footnote omitted)). Overturning Pierre would thus not only 

give effect to ERISA's full-and-fair review requirement and the claims-procedure 
20

regulation, it would also potentially eliminate this inconsistency in the way courts 

review benefits claims under ERISA.2

As the panel recognized, Pierre matters now much more than before because 

states, including Texas, have increasingly passed laws banning discretionary 

clauses from insurance policies, meaning that courts in the Fifth Circuit will 

increasingly be deferring to plan administrator decisions not by dint of the plan's 

terms but because of Pierre itself. Ariana M., 854 F.3d at 757 n.2; see, e.g., Cal. 

Ins. Code § 10110.6; Ill. Admin. Code tit. 50, § 2001.3; Tex. Ins. Code § 1701.062.

The extensive regulation of insurance companies by states is based on the 

judgment that increased scrutiny is generally required "to prevent abusive 

practices—for example, false sales illustrations or failure to pay legitimate claims 

on a timely basis—that take unfair advantage of consumers." Robert W. Klein, 

 2 The notion that plan administrators are not automatically accorded discretion is 

also consistent with recent regulations, applicable to non-grandfathered group 

health plans, regarding independent external review of adverse benefit 

determinations. 42 U.S.C. § 300gg-19; 29 C.F.R. § 2590.715–2719 (internal 

claims and appeals and external review processes). The federal external review 

process, for example, explicitly requires that plan determinations adverse to the 

claimant be reviewed de novo by an independent review organization ("IRO"). 29 

C.F.R. § 2590.715–2719(d)(2)(iii)(B)(5); id. § 2590.715–2719(d)(3)(iii)(B). The 

regulations require that IROs be independent and free of bias. See id. § 2590.715–

2719(c)(2)(ix) ("The State process must further provide that the IRO and the 

clinical reviewer assigned to conduct an external review may not have a material 

professional, familial, or financial conflict of interest with the issuer or plan that is 

the subject of the external review"); id. § 2590.715–2719(d)(2)(iii)(A)(1) ("The 

plan or issuer must ensure that the IRO process is not biased and ensures 

independence."). This underscores the importance of ensuring unbiased, de novo

judicial review of a benefits determination made by a plan administrator.
21

Insurance Regulation in Transition, 62 J. Risk & Ins. 363, 374 (1995). Indeed, the 

Attorney General of Texas explains as amicus curiae how Texas legislated to 

protect consumers and ensure effective review of benefit claims decisions and how 

Pierre negates those protections as they relate to a plan administrator's factual 

findings. Amicus Br. for the Tex. Dep't of Ins., at 2–4. 

The advent of discretionary-clause bans also makes Pierre more likely to 

create disuniformity in how ERISA is enforced. An ERISA plan that is national in 

scope may well have its decisions reviewed de novo in most jurisdictions (due to 

the increasing prohibition of discretionary clauses), but for participants in that 

same plan who happen to bring their claims in the Fifth Circuit, the administrator 

will be entitled to deferential review of its factual findings. See Ariana M., 854 

F.3d at 765 (Costa, Prado, & Higginson, JJ., specially concurring) ("[T]he circuit 

split on that default standard undermines the uniform treatment of ERISA plans—

sometimes the same plan offered by employers in different states—that the federal 

statute seeks to achieve."). Overturning Pierre would eliminate such a disparity 

and give full effect to state discretionary-clause bans. This would also create 

uniformity with the de novo standard of review applicable to insurance policies 

outside of the ERISA context. E.g., Gulf Underwriters Ins. Co. v. Great W. Cas. 

Co., 278 F. App'x 454, 461 (5th Cir. 2008) (reviewing the factual dispute in an 

insurance coverage case without deference to the insurer). The growing 
22

prevalence of such bans means that the default standard of review of benefits 

determinations—and the need to resolve the tension created by Pierre—is of 

increasing importance. A default de novo standard of review both inside and 

outside the Fifth Circuit would level the playing field on which participants, plans, 

insurers, and regulators operate.3

 

CONCLUSION

For the reasons set forth above, the Secretary requests the en banc Court to 

overturn Pierre and hold that the default standard of review of factual findings by a 

plan administrator in an action under 29 U.S.C. section 1132(a)(1)(B) is de novo.

Respectfully submitted,

NICHOLAS C. GEALE

Acting, Solicitor of Labor

G. WILLIAM SCOTT

Associate Solicitor for

Plan Benefits Security 

s/ Thomas Tso

THOMAS TSO

Counsel for Appellate and 

 Special Litigation

 3 The panel assumed that state discretionary-clause bans are not preempted, Ariana 

M., 854 F.3d at 765 (Costa, Prado, & Higginson, JJ., specially concurring), and the 

preemption question is not presented in this case. Cf. Fontaine v. Met. Life Ins. 

Co., 800 F.3d 883, 889 (7th Cir. 2015) (agreeing with the Sixth and Ninth Circuits 

that discretionary-clause bans fall within ERISA's insurance savings clause).
23

U.S. Department of Labor

Room N-4611

200 Constitution Ave., N.W. 

Washington, D.C. 20210

(202) 693-5632
24

CERTIFICATE OF COMPLIANCE

1. This document complies with the word limit of FED. R. APP. P.

29(a)(5) because, excluding the parts of the document exempted by FED. R. APP. P.

32(f), it contains 5,461 words. 

2. This document complies with the typeface requirements of FED. R.

APP. P. 32(a)(5) and the type-style requirements of FED. R. APP. P. 32(a)(6) 

because it has been prepared in proportionally spaced typeface using Microsoft 

Word in 14-point Times New Roman.

Date: August 15, 2017 s/ Thomas Tso

THOMAS TSO