United States District Court, S.D. California
ORDER REQUESTING SUPPLEMENTAL BRIEFING IN RE PLAN
DOCUMENTS AND ADMINISTRATIVE RECORD
Gonzalo P. Curiel United States District Judge.
Court, as stated at the motion hearing, has tentatively
concluded that Plaintiff was a “participant” for
purposes of pursuing a claim under 29 U.S.C. §
1132(a)(1)(B) and (a)(3), as interpreted by the Supreme Court
in Firestone Tire & Rubber Co. v. Bruch, 489
U.S. 101 (1989). The ERISA statute defines
“participant” as “any employee or former
employee of an employer . . . who is or may become eligible
to receive a benefit of any type from an employee benefit
plan which covers employees of such employer.” 29
U.S.C. § 1002(7).
The Supreme Court has interpreted [29 U.S.C. § 1002(7)]
to mean that a party is a ‘participant' if he is an
employee in, or reasonably expected to be in, currently
covered employment, or if he is a former employee who has a
reasonable expectation of returning to covered employment, or
a ‘colorable claim' to vested benefits.
Miller v. Rite Aid Corp., 504 F.3d 1102, 1106 (9th
Cir. 2007) (quoting Firestone Tire & Rubber Co. v.
Bruch, 489 U.S. 101, 117 (1989)). Here, Plaintiff has a
“colorable claim” for benefits. At minimum, the
inference can be drawn that Plaintiff was an employee at the
time of acquisition-she received and signed a
“Confirmation of Employment Letter” from
Defendants, (Winters Decl. Ex. 4, Dkt. No. 99-10), and was on
FMLA leave until November 3, 2010, two days after
the acquisition of Sempra Energy Solutions closed,
(Defs.' SSUF ¶ 4; Pl.'s SSUF ¶¶ 7,
addition, the Court has tentatively concluded that, contrary
to Defendants' position, Defendants' termination of
Plaintiff s benefits, based upon Defendants'
determination that she was ineligible, is subject to review
under ERISA, and that an ERISA standard of review must be
selected. See, e.g., Tremain v. Bell Indus., Inc.,
196 F.3d 970, 973 (9th Cir. 1999) (directing district court
to review de novo the termination of plaintiff s
benefits); Bergt v. Ret. Plan for Pilots Employed by
MarkAir, Inc., 293 F.3d 1139, 1142 (9th Cir. 2002)
(subjecting plan administrator's determination that
plaintiff was not eligible to participate in the plan to
abuse of discretion review); Gonda v. Permanente Med.
Grp., Inc., 300 F.R.D. 609, 613 (N.D. Cal. 2014)
(subjecting plan administrator's termination of plaintiff
s benefits to de novo review). To conclude otherwise
would effectively insulate Plaintiffs claim from ERISA
review, despite Defendants' representation to Plaintiff
that ERISA governed the Noble Health Plan, and that she
accordingly needed to administratively exhaust her claims
before seeking judicial relief. (See Rubin Decl, Ex.
P, Dkt. No. 90-12 at 27.) Defendants' position
essentially amounts to an argument that Defendants'
own factual determination that Plaintiff was
ineligible to participate in the Noble Health Plan applies
with equal force to the legal question of whether she was a
plan “participant” within meaning of the ERISA
statute. This position fails to take into account the Supreme
Court's interpretation of “participant”
tentatively determined the above, the Court has identified
two threshold problems impeding the Court's selection and
application of the appropriate standard of review.
the only documents indicative of the terms of the Noble
Health Plan are the 2010 and 2011 Summary Plan Descriptions
(“SPDs”). (See, e.g., Dkt. No. 90 at 7
(referring to the eligibility conditions “outlined in
the summary plan description of the Noble Health
Plan”); Dkt. No. 90-2, Defs.' SSUF ¶ 16
(referencing “certain conditions outlined in the SPD
for the Noble Heath Plan”).) Neither party has
identified for the Court the relevant terms of the Noble
Health Plan, beyond language from the SPDs. The Supreme Court
has expressly held that “the summary documents,
important as they are, provide communication with
beneficiaries about the plan, but . . . their statements
do not themselves constitute the terms of the plan for
purposes of § 502(a)(1)(B).” CIGNA Corp.
v. Amara, 563 U.S. 421, 438 (2011) (emphasis added);
see also Prichard v. Metro. Life Ins. Co., 783 F.3d
1166, 1171 (9th Cir. 2015) (holding that “the district
court clearly erred in finding that the SPD, and not the
insurance certificate, constitutes the Plan document”
(internal quotation marks omitted)); accord Becker v.
Williams, 777 F.3d 1035, 1040 n.3 (9th Cir. 2015)
(“The Supreme Court has specifically excluded the
statutorily mandated summary plan description, listed in
§ 1024(b)(4), as a source of the plan's governing
terms.”). The Court notes the presence of language in
the SPDs indicating that formal Plan documents exist.
(See, e.g., Rubin Decl., Ex. M, Dkt. No. 90-11 at 53
(referring to “the Certificate” and the
“provider's network participation
documents”).) The very language of 29 U.S.C. §
1132(a)(1)(B) implicates “the terms of the plan.”
29 U.S.C. § 1132(a)(1)(B); accord Opeta v. Nw.
Airlines Pension Plan for Contract Employees,
484 F.3d 1211, 1219 (9th Cir. 2007) (“De novo review
requires the district court to evaluate whether [the plan
administrator] correctly denied [the plan participant]
benefits under the terms of the Plan.”). The Parties
need to identify the Plan documents and apprise the Court of
the relevant terms of the Plan in order for the Court to
proceed in its determination.
neither party has specifically identified for the Court which
documents comprise the administrative record in this case.
Applying either de novo or abuse of discretion
review, the Court must review the administrative record to
make its determination. “[I]n general, a district court
may review only the administrative record when considering
whether the plan administrator abused its discretion, ”
but “when de novo review applies, the court is not
limited to the administrative record and may take additional
evidence.” Abatie v. Alta Health & Life Ins.
Co., 458 F.3d 955, 970-73 (9th Cir. 2006).
when an administrator has engaged in a procedural
irregularity that has affected the administrative review . .
. [e]ven where procedural irregularities are smaller, though,
and abuse of discretion review applies, the court may take
additional evidence when the irregularities have prevented
full development of the administrative record. In that way
the court may, in essence, recreate what the administrative
record would have been had the procedure been correct.
Id. at 973. Thus, even if the Court accepts
Plaintiffs position that procedural irregularities occurred,
Plaintiff still needs to clarify where the administrative
record begins and ends, and what additional evidence is
necessary to “recreate what the administrative record
would have been.” Id. Further, Plaintiff needs
to identify which “exceptional circumstances”
establish that “introduction of evidence beyond the
administrative record” is necessary. See
Opeta, 484 F.3d at 1217 (reiterating the Ninth
Circuit's prior holding “that extrinsic evidence
could be considered only under certain limited
circumstances” and citing with approval the Fourth
Circuit's rule “that the district court should
exercise its discretion to consider evidence outside of the
administrative record only when circumstances
clearly establish that additional evidence is
necessary to conduct an adequate de novo review of
the benefit decision” (internal citation and quotation
Parties are ordered to provide supplemental briefing of no
more than ten pages on the two discrete problems outlined in
this Order. They are further ordered to identify the contents
of the administrative record (and if extrinsic evidence is
proffered, to clearly explain why it is necessary) and lodge
the administrative record with the Court accordingly. The
Parties are to comply with this Order on or by Tuesday, April