UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

John R. Crooker

v. Civil No. 05-cv-008-JD

Anheuser-Busch, Inc.

O R D E R

John R. Crooker filed an amended complaint alleging two

claims under the Employee Retirement Income Security Act

(“ERISA”). With its answer, Anheuser-Busch, Inc. (“AB”), filed a

copy of “The Administrative Record,” consisting of the company’s

Early Retiree Eligibility and Administrative Booklet and a letter

from Craig R. Friesz, Manager, Human Resources, to R. Bruce

Gagnon, Teamsters Local No. 633, denying health care benefits for

Crooker. Crooker moves to modify the administrative record filed

by AB, to include other materials that he asserts are necessary

to resolve his claims. AB objects to the motion.

Crooker argues that the administrative record filed by AB is

insufficient to address his claims, particularly his second claim

that AB interfered with his right to receive health benefits

under the retirement plan by requiring him to sign the severance

agreement as a condition for receiving his workers’ compensation

settlement. He asks the court to order AB to produce

documentation about workers’ compensation claims submitted for

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the Merrimack, New Hampshire, AB facility and AB as a whole,

copies of any changes to the “Summary Plan Description” since it

was adopted, and all memoranda related to a variety of issues

pertaining to the “Summary Plan Description.” Crooker contends

that the record should be expanded to include a copy of the

Collective Bargaining Agreement, the severance agreement, the

workers’ compensation settlement, correspondence pertaining to

the severance agreement, and any other documentation that AB may

produce in response to the court order Crooker requests. AB

objects to the motion on the ground that Local Rule 9.4 precludes

discovery and that the other documents are not part of the

administrative record as defined by the rule. Neither Crooker

nor AB cites a single case in support of or in opposition to the

motion.

Local Rule 9.4 provides that “[u]nless otherwise ordered by

the court, the following procedures shall govern all actions that

include one or more claims under § 502(a)(1)(B). . . .” The rule

requires the defendant to file a copy of the administrative

record with its answer. Another provision of the rule is that

discovery shall not be permitted. As the rule provides, however,

its provisions are subject to revision or limitation by an order

of the court. 

Ordinarily, review of a plan administrator’s decision under

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the deferential standard is limited to the evidentiary record

presented to the administrator. Lopes v. Met. Life Ins. Co., 332

F.3d 1, 5 (1st Cir. 2003). If the “‘plan gives the administrator

or fiduciary discretionary authority to determine eligibility for

benefits or to construe the terms of the plan’ . . . a decision

by that administrator or fiduciary concerning eligibility under a

benefit plan is subject to a deferential arbitrary and capricious

standard of judicial review.” Madera v. Marsh USA, Inc., 426

F.3d 56, 63 (1st Cir. 2005) (quoting Firestone Tire & Rubber Co.

v. Bruch, 489 U.S. 101, 115 (1989)). On the other hand, if the

plan administrator is not given such discretionary authority, the

de novo standard of review applies. Orndorf v. Paul Revere Life

Ins. Co., 404 F.3d 510, 516 (1st Cir. 2005). Under de novo

review, the standard is “whether upon a full review of the

administrative record, the decision of the administrator was

correct.” Id. at 517 (internal quotation marks omitted). 

Additional evidence or documents may be admissible in an

ERISA case, however, depending on the nature of the challenge. 

Id. at 519. When de novo review is focused on the

administrator’s decision, it will ordinarily be based on the

administrative record. Id. at 520. The court may hear new

evidence, however, “[w]here the challenge is not to the merits of

the decision to deny benefits, but to the procedure used to reach

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the decision” such as “a claim of personal bias by a plan

administrator or of prejudicial procedural irregularity in the

ERISA administrative review procedure.” Id. Discovery may also

be allowed in an ERISA case if a sufficiently specific showing is

made as to the pertinence of the request in order to “‘overcome

the strong presumption that the record on review is limited to

the record before the administrator.’” Id. (quoting Liston v.

Unum Corp. Off. Severance Plan, 330 F.3d 19, 23 (1st Cir. 2003)).

Crooker did not address the appropriate standard of review

or in any other way make a sufficient showing that expansion of

the administrative record and discovery should be allowed in this

case. Therefore, his motion must be denied. He is afforded an

opportunity to present a properly supported motion, if such would

be appropriate in the circumstances of this case, on or before

January 4, 2006. The parties shall file a joint statement of

material facts within thirty days after the court rules on that

motion, if one is filed, or thirty days from January 4, 2006, if

no motion is filed.

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Conclusion

For the foregoing reasons, the plaintiff’s motion to modify

the record (document no. 35) is denied without prejudice to file

a new motion within the time allowed in this order.

SO ORDERED.

Joseph A. DiClerico, Jr.

United States District Judge

December 22, 2005

cc: David A. Garfunkel, Esquire

Andrea K. Johnstone, Esquire

Paul B. Kleinman, Esquire

Shenanne Ruth Tucker, Esquire

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