
USCA1 Opinion

	




                           UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                ____________________          No. 96-2265                                 CHERYL T. RECUPERO,                               Plaintiff - Appellant,                                         v.                              NEW ENGLAND TELEPHONE AND                             TELEGRAPH COMPANY, ET AL.,                               Defendants - Appellees.                                ____________________                    APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                  [Hon. Robert B. Collings, U.S. Magistrate Judge]                                ____________________                                       Before                       Bownes and Cyr, Senior Circuit Judges,                            and Keeton,* District Judge.                                _____________________               Lynn Thomas Johnson, with whom Blaine J. DeFreitas and  Saab          Law Firm were on brief for appellant.               Lisa                    M.                      Birkdale,                                New                                    England Telephone and Telegraph Company,          for appellees.                                ____________________                                    July 7, 1997                                ____________________          *  Of the District of Massachusetts, sitting by designation.                    KEETON, District Judge.   This  appeal presents  issues          regarding the scope of jurisdiction of federal courts over claims          for benefits under an  employee benefits plan that is subject  to          regulation  under the  Employee  Retirement Income  Security  Act          (ERISA).  In particular,  we must decide what standards apply  to          judicial                   review                          of                            the                                decisions of the out-of-court decisionmakers          in this case.                    Without                            doubt, in the circumstances of this case, as the          parties agree, the district  court had jurisdiction for  judicial          review   of  the   out-of-court   decisions,  under   29   U.S.C.          SS 1132(a)(1)(B)  and 1132(c),  for  at least  one purpose:    to          determine                    whether those decisions should be set aside as arbitrary          and capricious.  In  turn, this court has jurisdiction, under  28          U.S.C. SS 636(c)(3)  and 1291, to consider  plaintiff-appellant's          appeal from the district court's judgment for defendants.                    In  cases  involving  this  kind  of  judicial  review,          ordinarily the appropriate judgment for a district court to order          is             one                 or                    the                       other                             of                                two kinds.  If the district court determines          that               the                   out-of-court decisions were arbitrary and capricious, the          appropriate form of  order is one  remanding to the  out-of-court          decisionmaker for further proceedings to decide whether the claim          or claims have merit.   Otherwise, the usual  form of order is  a          final  judgment  affirming  the  decisions  of  the  out-of-court          decisionmaker.                                                   In                            this                                 case, however, appellees assert that "[t]he          only               salient                      issue                            before the court is whether the determination of          the              Committee to deny Recupero accident benefits was arbitrary and                                         -2-          capricious."  (Appellee's Br.  at 2.)  Though acknowledging as  a          general matter the possibility of a remand "to the Committee  for          further consideration" (id.), in the end appellees request only a          recognition  that "the  Committee's reasonable  decision must  be          permitted                    to                       stand" and an order that the district court's summary          judgment for defendant  "be affirmed." (Id.  at 22.)   Appellant,          also,                seeks                      a final decision in this court.  Thus, no party to the          appeal asks for remand to the out-of-court decisionmaker (or even          to the  district  court on  conclusion  of this  appeal),  except          possibly as  an alternative request,  not clearly  argued in  the          briefs and barely mentioned in oral argument apart from responses          to  questions from  the  court.   Instead,  the parties  join  in          contending that, if we  conclude that the out-of-court  decisions          were for  some reason arbitrary  and capricious,  then we  should          (1)              decide                    this                         controversy finally, or order the district court to          do so, making any factual findings necessary to a decision on the          merits,                  or                     (2)                        decide                               that the claim is finally resolved on grounds          of some procedural bar, estoppel, or harmless error.                    In  these   circumstances,  this   appeal  presents   a          fundamental question  about  the  scope of  jurisdiction  of  the          district court and this court.  After stating relevant background          matter in  Part  I, we  address this  fundamental  jurisdictional          question                   in                      Part                          II,                              concluding that the courts do not have plenary          jurisdiction to decide all  questions bearing on the merits.   In          Part  III  we  turn  to  other issues,  over  which  we  do  have          jurisdiction,                       and conclude that the judgment of the district court                                         -3-          against  plaintiff-appellant is  to be  affirmed, though  without          approval  of  all details  of  the  district  court's  reasoning.                                   I.  Background                    The incident that forms the basis for this civil action          and              this                   appeal occurred on January 18, 1990, while the plaintiff-          appellant, Cheryl Recupero, was working for New England Telephone          and Telegraph Company  ("NET") as a Service Representative.   The          District Court recited, as an undisputed fact, that:                      At 9:30  am on January  18, she left  her                      workstation on  the sixth  floor for  the                      purpose of going for coffee at a shop  on                      the                          ground                                 floor.  She entered an elevator                      and was injured in a mishap while in  the                      elevator.          (Recupero v. New England Telephone & Telegraph Co., Civil  Action          No. 94-12266-MLW, Memorandum and Order, Sept. 20, 1996 at 2.)                    As a  result of  injuries sustained  in this  incident,          Recupero applied for benefits under the NET plan.  (Id.)  She was          granted                  benefits under the Sickness provision of the plan, but was          denied Accident benefits.   (Id. at 3-4.)                    The NET plan provides that an employee is:                      [Q]ualified    to    receive    [Accident                      Disability]  payments   on   account   of                      physical disability to work by reason  of                      accidental                                 injury ...arising out of and in                      the course of employment by the Company.                      (Id. at 3)(emphasis added).                    The plan further elaborates that:                                         -4-                      Accidental                                 injuries shall be considered as                      arising  out of  and  in  the  course  of                      employment  only  where  the  injury  has                      resulted solely from accident during  and                      in direct connection with the performance                      of  duties  to  which  the  employee   is                      assigned...          (Id.)(emphasis added).   The only limitation  on the duration  of          payment of Accident  Disability Benefits, under the terms of  the          plan,                is                   that                       the                           employee remains unable to work.  (Id. at 4 n.2.)                    The                        plan                             does                                 not                                     explicitly define what "sickness" is in          the section providing for Sickness Disability Benefits, but  does          state that "sickness shall  include injury other than  accidental          injury arising  out of  and in the  course of  employment by  the          Company."   (Id.  at  4)(emphasis added).    Sickness  Disability          Benefits are subject to a  duration limit of 52 weeks, under  the          terms                of                   the                      plan.                            (Id.                                                                at 4, n.2.)  NET paid and Recupero accepted          52 weeks of Sickness Disability Benefits.  (Id. at 3.)                    The Benefits Office  determined that  Recupero was  not          entitled to Accident Disability Benefits because her injuries did          not arise out of or occur in the course of her employment.  (Id.)          Recupero                   appealed this decision to the Employee Benefits Committee          ("EBC"  or "Committee"),  which denied  her appeal  by letter  on          December 15, 1993, stating that "it was determined that there  is          evidence that you were not eligible for Accident Benefits for the          incident report on January 18, 1990."  (Id.)  Recupero then filed          an identical  appeal  with  the Employee  Benefits  Claim  Review          Committee ("EBRC" or "Review  Committee"), which also denied  her          appeal,  stating  that  "after  consideration  of  all  available                                         -5-          information,                       including                                the information you provided, the [EBRC] has          determined                     that                          there                               is                                  no reason to reverse the original decision          of the [EBC]."  (Id. at 5.)                       Recupero                             filed a civil action for judicial review in the          United States District Court  for the District of  Massachusetts.          The              district                       court assigned the case to Magistrate Judge Collings,          under 28 U.S.C. S 636(c)(1) and Local Rules of the district.                     In                       the                           district court, Recupero contended that:  (1) the          EBC              and                  the                      EBRC acted arbitrarily and capriciously by erroneously          interpreting                       the                          provisions of the plan; (2) the Committees' denial          of her claim lacked good  faith; and (3) the Committees gave  her          inadequate notice of the denial.  (Id. at 9.)                     The district court decided the case by ruling on  cross          motions for summary judgment.                    The court initially  noted the appropriate standard  of          review,                  stating that the arbitrary and capricious standard applies          where the benefit plan vests the fiduciary with the discretionary          authority to determine benefits eligibility and to construe  plan          provisions.    (Id.)     The  court   then  made  the   following          determination:                      [T]he NET  plan enumerates in  sufficient                      detail the broad discretionary powers  of                      both the EBC and the EBCRC necessary  for                      application                                  of the deferential standard of                      review.   Thus,  the rulings  of the  NET                      committees will  not be disturbed  unless                      the                          denials                                  were arbitrary and capricious.          (Id. at 8.)                                         -6-                    The district court next examined in detail the  various          claims and contentions.  Recupero, using the word "Committee"  to          refer to either or both of the Benefits Committee and the  Review          Committee,  stated  as her  first  argument  that  the  Committee          improperly                     categorized                                her injury as "off-duty" when it should have          been treated as an "on-duty" injury.  (Id. at 9.)  This  argument          concluded                    with                        the                            assertion that it was not "rational" to classify          incidents that occur during  breaks, taken at a time required  or          directed by the employer, as being "off-duty" incidents.   (Id.)                     The district  court concluded  (contrary to  Recupero's          contention) that  the EBC  and EBRC  had not  been arbitrary  and          capricious                     in                       interpreting the plan as defining break-time as "off-          duty" time.  The court stated:                      Recupero                               does not point to any language in                      the  plan   which  indicates   that   the                      committee interpretation is not rational.                      Nor does  she  point  to  language  which                      suggests that the  scope of the  Accident                      Benefits  Provision  should  be  given  a                      broader reading and  be applied when  the                      injury occurs as a result of an otherwise                      non-job-related   activity    which    is                      marginally  motivated  by  a  job-related                      exigency.    On  the  contrary,  and  the                      defendants point out, the plain  language                      of the plan militates for a far  narrower                      reading.          (Id. at 10-11.)                    The                        court                              below                                   also                                        emphasized that the definition of an          injury that would  qualify an employee for accident benefits  had          words of  limitation, such as  "only," "solely,"  and "in  direct          connection."  (Id. at 11.)  These words, the court reasoned,  are                                         -7-          plain and  unambiguous, and require that  for an employee "to  be          eligible                   for                       accident benefits, the activity in which the employee          is engaged at the time of injury must be a duty or responsibility          required by her job."  (Id.)  Thus, the court concluded:                      It                         is                            an                               undisputed fact that Recupero was                      taking her break and going to get  coffee                      at the time  she sustained her  injuries.                      Breaks fall  outside the  purview of  the                      plain language  of the  Accident  Benefit                      Provisions.     Therefore,   given   that                      Recupero was on  break at  the time,  her                      injury cannot be said to be a direct  and                      sole result of her job responsibilities.          (Id.)                    Because, as  the  court below  viewed the  matter,  the          plaintiff                    had failed to raise an issue of material fact, the court          ruled that the Committees' interpretation was consistent with the          language  of  the plan,  and  that  the Committees  did  not  act          arbitrarily or capriciously in denying Recupero's claim.  (Id. at          12.)                    Recupero's  second  contention   below  was  that   the          Committees                     acted with a lack of good faith toward her because, she          claimed,                   the                       EBC and the EBRC either never met to review her claim          or             failed                    to                       have a quorum present when they did meet.  (Id.)  The          court                below                      determined that Recupero's claim of lack of good faith          was without evidentiary support in the record. (Id. at 13.)                    The final issue decided by the court below was  whether          the              notices                      of denial sent to Recupero by the Committees conformed          with  the statutory  requirements  of  ERISA.   (Id.)    Recupero          contended that the failure of the Committees to include  specific                                         -8-          reasons for denying  her claim, or to  cite to any specific  plan          provisions upon which  the denial was  based, precluded her  from          obtaining                    the information that was necessary for her to pursue her          claim.  (Id. at 14.)                    On the issue of notice, the court below concluded that:                      The                          denial                                 letters sent to Recupero failed                      to conform  strictly to the  requirements                      set forth in ERISA,  29 U.S.C. S 33,  and                      were insufficient  as  a matter  of  law.                      Nonetheless, as  a practical matter,  the                      letters were substantially sufficient  to                      inform Recupero that  her claim had  been                      denied.          (Id.)                    Having so concluded,  the lower  court then  considered          whether any remedy was available to Recupero for NET's failure to          conform to the requirements of 29 U.S.C. S 33.  (Id.)   The court          concluded that a remand to the EBC or the EBRC would be a useless          formality                    because the evidence taken as a whole indicated that the          denial of benefits was correct.  (Id. at 15.)                       On this reasoning,  the district court granted  summary          judgment for  NET on all  claims.  Recupero  appealed.  No  cross          appeal was filed.                      II.  The Scope of Jurisdiction in a Case                  Involving Judicial Review of Out-of-Court Decisions          A.  Circumstances of the Present Appeal                    As                       already                               noted, the district court had, and this court          has, authority for judicial review of the out-of-court  decisions          that preceded commencement  of this civil action in the  district                                         -9-          court.  29  U.S.C.  SS  1132(a)(1)(B)  and  1132(c);  28   U.S.C.          SS 636(c)(3) and 1291.  Also, Recupero does not dispute that  the          judicial                   review is to be "de novo" and that she has the burden, in          the circumstances of this case, of showing that the denial of her          claim  violated   the   "arbitrary  and   capricious"   standard.          (Appellant's Br. at 9, citing Firestone Tire and Rubber, Inc.  v.          Bruch, 489 U.S. 101, 113 (1989); Pagan v. NYNEX, 52 F.3d 438, 442          (2d Cir.  1995)  (judicial review  of  decision by  pension  plan          administrator                       to deny long-term disability benefits, where pension          provisions  gave  the  plan  administrator  broad  discretion  to          determine                    eligibility issues and no material fact was genuinely in          dispute; "we are not free to substitute our judgment for that  of          the  NYNEX Committee  as  if we  were  considering the  issue  of          eligibility  anew,"  and  as  if  free  to  upset  a   reasonable          interpretation; court  reviews  only the  decision of  the  NYNEX          Committee                    and,                         even                             if                                plan provisions were drafted by NYNEX, which          is  an  entity  different from  the  NYNEX  Committee,  and  were          ambiguous, the rule contra proferentum is inapplicable); Diaz  v.          Seafarers Union, 13  F.3d 454, 456-57 (1st Cir. 1994)  (trustees'          decision                   denying retired seaman's claim for higher monthly pension          benefit                  under Seafarers International Union's Pension Plan did not          improperly apply the trustee rules about "break in service"  that          were promulgated  pursuant  to powers  that the  Plan  instrument          granted                  to                    the                        trustees); Stuart v. Metropolitan Life Ins. Co., 664          F.  Supp.  619,  622-23 (D.  Me.  1987)  (declining  to  overturn          recoupment from worker, of sum equal to lump-sum Social  Security                                        -10-          payments, by insurer  under Group Insurance  Policy taken out  by          Plan)).                    Though                           the                               contentions of the parties about the scope of          the jurisdiction of the district court and this court differ, all          parties to this appeal  urge us to take an exceedingly  expansive          view of the scope of the courts' jurisdiction in reviewing  ERISA          benefit                  determinations.                                                                   Each party to this appeal, at least in the          alternative,  urges  us  to hold  that  the  district  court  had          jurisdiction not  only  to  apply the  arbitrary  and  capricious          standard of review to  at least some aspects of the  out-of-court          decisions, but also  to make findings  on material and  genuinely          disputed                   factual                          issues                                 that allegedly should have been decided and          were not.   In essence, we are asked to decide on the merits,  or          direct the district court to decide on the merits, every material          factual                  issue                        as                          to                             which the out-of-court decisions under judicial          review  are  challenged.    We  are  asked  to  exercise  plenary          jurisdiction of the most expansive form.                    We  acknowledge that  statements  made about  "de  novo          review"  in some  passages from  authoritative sources,  standing          alone, may seem to support the parties' expansive  jurisdictional          contentions.                                              We                          conclude, however, that a close examination of the          entire array of relevant authority discloses that contentions  of          the parties in this respect flow from a misreading of  Firestone,          and a resulting  misunderstanding of that  case and its  sequels.          Such a misreading  was anticipated by Justice (then Chief  Judge)          Breyer's                   opinion                           for                              the                                  First Circuit in Diaz, 13 F.3d at 458.  In                                        -11-          that case  an argument was made  that a Plan amendment,  granting          broad discretion to trustees, showed that the previous provisions          of             the                 Plan                      did not grant discretion that broad.  The Diaz opinion          responds  that the  amendment "merely  made express  a power  ...          plainly                  implied                         all                             along," perhaps because the trustees "wanted to          play it safe in light of Firestone and the possibility that lower          courts would later misread it."  Id.                     The parties' expansive views about jurisdiction derive,          at             least                   to                      some extent, from their reading of what Firestone said          about "de novo review."  In that case, the Court declared:                      ...                          Consistent with established principles                      of trust  law, we hold  that a denial  of                      benefits challenged under S 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 (emphasis added).                    In several significant respects, the case before us  in          this appeal differs from Firestone.  Nevertheless, in this  case,          one              of                 the                    questions                              we                                 must address may be stated in a generalized          way              in                 exactly the same phrase as that used by Justice O'Connor in          describing the  first of two questions  before the Court in  that          case:  "First,  we address the  appropriate standard of  judicial          review  of  benefit   determinations  by   fiduciaries  or   plan          administrators under ERISA."  489 U.S. at 105.                    The plans involved in Firestone were Firestone's  three          "pension  and  welfare  benefit  plans  for  its  employees:    a                                        -12-          termination pay  plan, a retirement  plan, and  a stock  purchase          plan."  Id.  "All three of the plans were ... governed (albeit in          different                    ways)                         by                            ERISA."  Id.  In our case, also, the NET plan is          governed  by  ERISA, but  in  some  respects by  the  same  ERISA          provisions that  applied  to the  Firestone  plans and  in  other          respects                   by                     different                               ERISA provisions.  One difference is that the          Firestone                                      plans were "welfare and pension plans," and the NET plan          is             not.                                     Other differences emerge as we apply the reasoning of the          Court in Firestone to the present case.                    Firestone determines that:                      [f]or   purposes    of   actions    under                      S 1132(a)(1)(B), the de novo standard  of                      review applies regardless of whether  the                      plan at issue  is funded or unfunded  and                      regardless                                 of whether the administrator or                      fiduciary                                is                                   operating under a possible or                      actual conflict of interest.            489 U.S. at 115.  The role of the district court in  applying the          "de novo  standard" is  affected, however,  by the  terms of  the          particular plan at issue.  For example, "if a benefit plan  gives          discretion                     to an administrator or fiduciary who is operating under          a            conflict                     of                       interest                                that conflict must be weighed as a 'facto[r]          in  determining  whether  there  is  an  abuse  of   discretion.'          Restatement (Second) of Trusts S 187, Comment d (1959)."  Id.                    In this case, no party challenges the proposition  that          NET plan documents did give some discretion, subject to  judicial          review,                  to                     the EBC and EBRC.  Nor does any party question that the          Committees                     were acting on behalf of an entity that was, within the          meaning of the statutory phrase, an "administrator or fiduciary."                                        -13-          Also,                we                   do                     not                         understand the briefs of the parties as challenging          the proposition that the Committees had some responsibility,  and          associated authority, with respect to "constru[ing] the terms  of          the plan," as that phrase is used in Firestone, 489 U.S. at  115.          In any event, if this proposition is challenged, we conclude that          the challenge is without merit.                      As                       previously discussed, when the benefit plan gives the          administrator  or  fiduciary  discretion  to  determine   benefit          eligibility or  construe plan  terms, Firestone  and its  progeny          mandate  a deferential  "arbitrary  and capricious"  standard  of          judicial  review.    Id.   Thus,  a  deferential  "arbitrary  and          capricious" standard of review applies, even though the review is          also to be "de novo  review" to assure compliance of the  out-of-          court decisionmakers with standards of conduct analogous to those          applied                  to                    trustees                             under judicially developed law (which Firestone          adopts  to fill  the gap  left because  "ERISA does  not set  the          appropriate standard of review for actions under S  1132(a)(1)(B)          challenging benefit eligibility  determinations.").  489 U.S.  at          109.                    Because  of   the  combination   of  similarities   and          differences  between  the  circumstances  in  Firestone  and  the          circumstances before us in this case with respect to the array of          different plan provisions and with respect to which among ERISA's          various                  provisions apply, however, we must be especially observant          of             the                 extent to which the Firestone "de novo standard of judicial          review"                  requires de novo determinations by the reviewing court and                                        -14-          the extent to which, instead, it requires deference to an out-of-          court decision that is not "arbitrary and capricious."                    An example of the kind of problems we must consider  is          the determination  of the meaning of  provisions of the NET  plan          regarding "eligibility for benefits" of various types -- in  this          case, "Sickness  Disability  Benefits" and  "Accident  Disability          Benefits."   Determining  the  meaning of  such  plan  provisions          ordinarily                     depends solely on deciding an issue of law with respect          to manifested  meaning of  relevant provisions  of the  plan.   A          reviewing court,  at  least in  the  absence of  plan  provisions          explicitly declaring  otherwise, has authority  to decide that  a          committee  interpretation  that  varies  from  an   unambiguously          manifested meaning  is  arbitrary  and capricious,  and  must  be          disregarded.                        If, instead, the reviewing court determines that the          plan               provisions                         are                             ambiguous or otherwise unclear, in some respect          material                   to                      the outcome of the case, this determination of lack of          clarity                  does                       not necessarily lead to treating the issue of meaning          as one  for decision by  findings of fact  in the district  court          (either                  by                     a                       jury                           or                              by                                 the district judge).  Instead, interpretive          issues of this kind may be decided by the court as matters of law          are decided, or they may be partly decided in court and partly on          remand to the out-of-court decisionmakers, or applicable law  may          require                  some                       other allocation of decisionmaking functions.  We say          more               on                  this                      subject                              in                                 Parts II.B and II.C of this opinion, below.                    Summarizing, we  conclude that in  view of the  Supreme          Court's                  pronouncement                               in                                  Firestone, it is no longer in dispute that                                        -15-          federal                  courts                        review                               some ERISA claims de novo.  Even when de novo          review is  appropriate,  however, it  is  often subject  to  some          limitations.  Thus, the phrase  "de novo review," as used in  the          context of  judicial review of  out-of-court decisions of  ERISA-          regulated plan administrators or fiduciaries does not mean that a          district                   court has "plenary" jurisdiction to decide on the merits,          anew, a benefits claim.                    We                       use                           the                              term                                   "plenary" to describe jurisdiction of the          court                to                   disregard completely an "out-of-court decision" the court          is reviewing and itself (with or without participation by a jury)          decide anew all  questions of fact bearing  on the merits of  the          benefits claim.            B.  Contrasting Court Roles Because of Limits on Jurisdiction                     1.  Limits Incident to Fiduciary Discretion                            Under Terms of a Benefit Plan                    With  respect  specifically   to  an  issue   regarding          eligibility of a claimant for benefits, precedents recognize that          district courts  do not  have expansive  plenary jurisdiction  to          decide the merits of a claim anew if "the benefit plan gives  the          administrator or fiduciary  discretionary authority to  determine          eligibility for benefits or  to construe the terms of the  plan."          Bellino v. Schlumberger  Technologies, 944 F.2d 26, 29 (1st  Cir.          1991) (quoting  Firestone, 489 U.S. at  115); see also Martin  v.          Bissonette                   ,                     1997                          WL                             280602, *12 (1st Cir. May 29, 1997) (remarking,          in the context  of judicial review of state court  determinations          bearing                  upon                      habeas                             writs, "we find a myriad of situations in which                                        -16-          federal courts review others' decisions with a thumb on the scale          ....[,] [t]he  most conspicuous  ... [being]  judicial review  of          agency  adjudications").     Thus,  if   an  ERISA   out-of-court          decisionmaker                       is given some discretion, the court reviews at least          some (if  not all) aspects of  the out-of-court decision only  to          determine                    whether                           that                                decision was arbitrary and capricious.  This          key point expressed  in Bellino is entirely consistent with  many          earlier and  later  First Circuit  decisions that  recognize  the          authority of the court to be less deferential, or not deferential          at             all,                  of                     out-of-court decisions by fiduciaries to whom a benefit          plan               did                   not                                            grant discretionary authority to decide the matter at          issue.  Smart v. Gillette Co. Long-Term Disability Plan, 70  F.3d          173,  181 (1st  Cir.  1995) ("In  ERISA  cases ...  court  should          scrutinize an ostensible waiver with care in order to ensure that          it  reflects  the  purposeful  relinquishment  of  an  employee's          rights."); Hughes v. Boston Mut. Life Ins. Co., 26 F.3d 264,  267          (1st Cir. 1994) ("Where, as here, the administrator of an  ERISA-          regulated plan does not  allege that it has discretion under  the          plan to  interpret the terms  of the  insurance policy,  judicial          review  of a  denial  of benefits  entails  no deference  to  the          administrator's explanation of the plan ...."); Diaz, 13 F.3d  at          456-58 (arbitrary  and capricious standard  of review applied  to          trustee  rules  promulgated  pursuant  to  "broad,  discretionary          authority" granted  to  the  trustee in  the  trust  instrument);          Rodriguez-Abreu                                                v.                            Chase                                  Manhattan Bank, N.A., 986 F.2d 580, 583-84          (1st Cir.  1993) (de novo  standard properly  applied where  "the                                        -17-          relevant                   plan                       document                                did not grant discretionary authority to the          Plan Administrator  and the Named  Fiduciaries did not  expressly          delegate                   their                        discretionary authority to the Plan administrator");          Allen v. Adage, Inc., 967 F.2d 695, 697-98 (1st Cir. 1992) (where          nothing                  in                     the Plan indicates that another approach is to be used,          it             is                appropriate for a reviewing court to afford de novo review).                              2.  Jurisdictional Limits                             in Federal Courts Generally                    An inquiry  that  is in  essence jurisdictional  is  an          appropriate                      early step toward full understanding of the meaning of          the constitutional, statutory, and decisional mandates  regarding          the scope of the authority of federal courts in a case  involving          judicial review of an out-of-court claims decision.                    Article III  courts and  other federal  courts are  not          courts                 of                    general jurisdiction.  See, e.g., Owen Equip. & Erection          Co.                          v.                 Kroger                      , 437 U.S. 365, 374 (1978).  Even when some source of          subject-matter  jurisdiction appears  of  record  (by  reason  of          complete diversity of citizenship, for example, or the dependence          of a  claim on  some federal  question), federal  courts are  not          automatically                       authorized to adjudicate every kind of related claim          a            party                  wishes to have decided.  Rather, except as to instances of          jurisdiction over claims  of unconstitutionality of  legislation,          limits on the scope of jurisdiction of federal courts (other than          the Supreme  Court of the  United States)  are partly  statutory.          E.g.             ,                Kokkone                      n v. Guardian Life Ins. Co. of America, 511 U.S. 375,          377 (1994).                                         -18-                    A                      central                              characteristic of federal jurisdiction is that          it tends to be  claim-based, and thus specific to claims,  rather          than case-based, and thus general to an entire case if the  court          has jurisdiction  over any claim.   See  American Law  Institute,          Federal                  Judicial Code Revision Project, Tentative Draft No. 1, 33-          34             (Apr.                   8,                     1997)                           (Commentary).  The Reporter for this ALI Project,          Professor John B.  Oakley, in an  introductory Memorandum to  the          Members of the Institute,  identifies as an organizing  principle          used from an early stage of the history of this ALI Project,  the          observation that:                       subject-matte                                  r jurisdiction of the federal                      district  court  operates  on  a  'claim-                      specific'  basis that  is  concealed  and                      confused                               by                                  the 'action-specific' language                      of the basic statutory grants of original                      jurisdiction to the district courts.          Id. at xvii.  He adds:                      .... Although the basic statutes  purport                      to  confer   federal  jurisdiction   over                      particular  types  of  'civil   actions,'                      'cases,'                               'proceedings,' and the like, they                      have                           been                                administered on a claim-specific                      rather than  action-specific basis,  with                      the  law  of  supplemental   jurisdiction                      functioning  in  the  background  as  the                      mechanism for  determining  which  claims                      joined to a particular action that do not                      directly involve the  kinds of issues  or                      parties within the  scope of Article  III                      are nonetheless  within federal  judicial                      power because  of their  relationship  to                      other claims involving issues or  parties                      that fall within Article III's criteria.          Id.                          at                 xviii.  We interpret "action," as used both in this passage          and              in                 a                   passage                          of                             the                                 F                                 irestone opinion, quoted above, as meaning          "civil                 action," not "cause of action."  Professor Oakley adds that                                        -19-          these background themes are  a part of the complex "structure  of          federal   jurisdiction,"   commonly   recognized   as   involving          constitutiona                      l, statutory, and decisional "tiers" of authorization          and limitation.  Id. at 36-45.                    We                       conclude                                that                                    a                                      theme                                            of claim-specific limitations on          the scope of federal judicial power extends also to a distinction          between                  plena                      ry jurisdiction, in a broad sense including authority          to  decide  anew on  the  merits, and  a  more confined  type  of          jurisdiction over  a specific type  of claim  within the  court's          jurisdiction.                        A district court's subject-matter jurisdiction over          a claim  may be  solely for  judicial review  of an  out-of-court          decision on the merits of the claim.  This kind of limitation  is          primarily                    statutory                             in                                origin.  It may be implicit, for example, in          a statutory authorization  for judicial review over  out-of-court          substantive  decisions  (of   many  different   types)  made   by          governmental agencies,  under  provisions of  the  Administrative          Procedure                    Act,                         5                          U.S.C.                                 S 706(2)(A).  Also, this kind of limitation          may be implicit  in statutory provisions  for judicial review  of          special                  kinds                       of                          out-of-court substantive decisions made by private          decisionmakers such as those acting under employee benefits plan,          making decisions reviewable  in this case under ERISA, 29  U.S.C.          SS 1132(a)(1)(B) and 1132(c).                    In a  regime  characterized in  large part  by  limited          jurisdiction,                        a                         statutory authorization for judicial review of out-          of-court decisions does  not imply authorization  for a court  to          expand its jurisdiction to a plenary authority to decide, itself,                                        -20-          all genuinely disputable factual issues decisive of the merits of          claims.  This point applies both  to a court's acting on its  own          initiative                     and                         to                           a                             court's acting upon a consensual request by the          parties that a court accept an expansion of its jurisdiction.  We          say more about consensual requests in Part II.E, below.                    Also,                          to                            understand                                       fully a source of authority regarding          the scope of a court's jurisdiction when judicially reviewing  an          out-of-court  claims  decision, one  must  take  account  of  the          distinctive nature  of  a court's  role  in judicial  review,  in          contrast                   with                        the                           role                                of a court in other civil actions generally.                    A civil action for  judicial review of an  out-of-court          decision is fundamentally different from a paradigm civil  action          asserting tort,  contract, or  property claims,  or even  alleged          rights to equitable or declaratory relief.  In cases of  judicial          review,                  ordinarily no right to jury trial is involved, and no need          or             authority                       exists to make factual findings of the kind regularly          made by a jury, or by the trial judge in a nonjury trial.                    If a need exists for deciding disputable factual issues          in             the                 course                       of                          judicial review of an out-of-court decision on the          merits                 of                    a                      benefits claim, typically that need is associated with          a            dispute                    about                         the                             "record."  We turn next to considering disputes          of this kind.          C.  Deciding Disputes About the "Record"                         1.  The Contrast Between Disputes                           About the "Record" and Disputes                                  About the "Merits"                                        -21-                    Deciding disputable factual issues about what is or  is          not  properly a  part  of the  "record"  for judicial  review  is          fundamentally different from  deciding disputable factual  issues          going to the merits of a benefits claim.                    The out-of-court decision under judicial review in this          case was, or at least in ordinary circumstances should have been,          a            decision                     on                       the merits.  The standard of judicial review of that          decision, in whatever way it may be phrased and described, is  to          some extent deferential in the sense that the reviewing court  is          not              to                 set                    aside                          a                            factual finding of historical fact for which the          record on which the decision was made contained adequate support.                    Ordinarily the  deference to a  decision on the  merits          extends also to deference to an evaluative inference on which the          decision                   on                      the merits depends, at least unless the inference is a          mixed-legal-factual inference.  Just as appellate courts tend  to          give               somewhat                       less                            deference to a trial court's mixed-legal-factual          inference --  see, e.g.,  AIDS  Action Comm.  of Mass.,  Inc.  v.          Massachusetts  Bay Transp. Auth.,  42 F.3d 1,  7 (1st Cir.  1994)          (appellate court accords  significant deference to trial  court's          factual determinations  and  most  of its  resolutions  of  mixed          fact/law issues,  letting  them  stand unless  they  are  clearly          erroneous,  but  engages  in de  novo  review  of  trial  court's          application  of a First  Amendment standard to  the facts of  the          particular                     case); In re Extradition of Howard, 996 F.2d 1320, 1328          (1st  Cir. 1993)  ("The standard  of review  applicable to  mixed          questions                    usually                           depends upon where they fall along the degree-of-                                        -22-          deference                    continuum;                              the                                  more fact-dominated the question, the more          likely it is that the  trier's resolution of it will be  accepted          unless shown  to be clearly erroneous.")  -- so likewise a  court          engaged                  in                     judicial review of an out-of-court decision may tend to          give less deference to  an inference-based decision that  appears          possibly to have been influenced by a mistake about the existence          or             meaning                     of an applicable legal rule or about how the legal rule          applies in  the particular  instance.   In applying  such a  less          deferential                      standard, however, a reviewing court is not authorized          to             make,                   itself, a new decision replacing every factual finding of          the out-of-court  decisionmaker that goes  to the  merits and  is          challenged.   The judicial review of  the decision on the  merits          continues to be to some extent deferential.                    In contrast,  the trial judge's  decision of a  dispute          about the record is typically not deferential.                     A factual dispute about  the record of an  out-of-court          decision of a claim under an employee benefits plan may involve a          contention, by either party, that the "record" as produced by the          decisionmaking entity contains documents or descriptions of  non-          documentary                      evidence not considered before the challenged decision          was made, or  documents or descriptions of evidence not  properly          considered (which one party or the other asks the trial court  to          "strike" or  otherwise treat as  irrelevant to judicial  review).          Obversely,                     the                        dispute                                may involve a contention that the record for          the out-of-court  decision  should have  included, and  did  not,                                        -23-          additional materials (which one party or the other asks the trial          court to rule must be taken into account).                      If, after taking such a supplementation of the "record"          into account,  the  trial judge  determines  that, by  reason  of          departures                     from fair process, the challenged out-of-court decision          cannot be affirmed, one obvious possibility is an order of remand          for              reconsideration by the committee or other entity that made the          procedurally flawed out-of-court decision.                    That  form  of  remedy  fits.    Concerning  a  court's          obligation generally, in framing relief, to fashion a remedy that          fits and  does not overburden a  party, see, e.g., California  v.          Yamasaki                 ,                    442 U.S. 682, 702 (1979) (injunctive relief should be no          more               burdensome                          to                            the                                defendant than necessary to provide complete          relief                 to                    the plaintiffs); E.E.O.C. v. Astra U.S.A., Inc., 94 F.3d          738, 746 (1st Cir. 1996) (same).                    First,                           the                               remedy for the departure from fair process is          easily  framed to  fit within  the authorized  scope of  judicial          review.                                     Second,                          the                              nature of the remedy matches the nature of the          error.                                   Moreover,                           if                              the                                  error was solely an error of the committee          or             other                   deciding entity, any other form of order is likely not to          fit              because                      it tends to place an undeserved burden or disadvantage          on one party or the other.                      We leave to be  considered in Parts III.C and III.D  of          this opinion a defense contention in this case that if the record          failed to contain evidence that would have supported  plaintiff's                                        -24-          claim, plaintiff  failed to  use her  available opportunities  to          proffer more evidence.                    To  complete an  explanation  of the  contrast  between          deciding                   disputes about the merits and deciding disputes about the          record, we must take account of legal authority bearing on who is          to decide a dispute about the record and by what procedures.                                  2.  Who Decides?                    As to who is to  decide a dispute about the record,  we          canvass three  possibilities (and  variations on  each) that  are          apparent in  this case:   (1) the  out-of-court decisionmaker  on          remand  from the district  court; (2) the  court or courts  where          judicial                   review                         occurs;                                 and (3) a jury (or trial judge as finder of          fact in  a nonjury proceeding),  guided on the  law by the  trial          judge's rulings,  those rulings  being subject  to correction  on          appeal.                    The  first  possibility  (remand  to  the  out-of-court          decisionmaker) may  sometimes be  appropriate, but  is likely  to          result                 in                    delay,                          and                              perhaps very extended delay and expense if the          dispute is  not resolved to  the satisfaction  of all  interested          parties,                   and                       promptly. That kind of delay is inconsistent with the          objective                    of                       providing workers and their dependents an inexpensive          and              expeditious method of resolving disputes over benefits claimed          under an  employee benefits plan.   This is  one of the  multiple          objectives underlying ERISA.  See, e.g., Quesinberry v. Life Ins.          Co. of  North America, 987 F.2d  1017, 1023-1025 (4th Cir.  1993)                                        -25-          (citing Perry  v. Simplicity Eng'g, 900  F.2d 963, 966 (6th  Cir.          1990)).                    The availability of the third possibility -- jury trial          --             in                ERISA                      cases is a matter on which many courts have spoken but          in  ways that  may  reasonably  be understood  as  creating  some          unresolved conflicts.  E.g.,  compare Turner v. Fallon  Community          Health Plan, Inc., 953 F. Supp. 419 (D. Mass. 1997), with Padilla          De             Higginbotham v. Worth Publishers, Inc., 820 F. Supp. 48 (D.P.R.          1993).  We do not speak further to this conflict in this opinion,          for              the                  reason                        that                             in                                any event the record before us fails to show          any disputable issue of fact appropriate for submission to a jury          in this case, as we explain below.                    The use of a jury to resolve disputes about the  record          for              judicial                       review                             of                                out-of-court decisions in this case would be          fundamentally                       inconsistent with the regime of limited jurisdiction          of federal courts.   Jurisdiction for  judicial review cannot  be          expanded                   to                      encompass a jury role inconsistent with limitations on          the              court's                      jurisdiction.  The jury is an arm of the court, and an          arm that performs  only a designated court  function.  In a  case          before the court  solely for judicial  review of an  out-of-court          decision, the jurisdiction of the court as a whole, including the          jury,                is                   limited                          to                             the                                 function of determining whether the out-of-          court decision  is to  be affirmed,  or  is to  be set  aside  as          arbitrary                    or                       capricious, or is to be reconsidered by the committee          or other entity designated to decide the merits.                                        -26-                    A  recent decision  of  the  Supreme Court  in  a  very          different                    context                           helps                                 to explain both the rejection of this third          possibility and the distinctive  nature of the role of the  trial          judge in deciding disputes about the record as distinguished from          disputes about the merits.  That context involved a dispute about          who decides an  issue of interpretation of  a patent claim as  to          which reasonable  persons familiar with  both the intricacies  of          patent law and  all the relevant circumstances of the  particular          case might differ.  Justice Souter, in the opinion of the  Court,          observed that a trial judge  is better positioned than a jury  to          decide  this  kind  of  factual  issue.    Markman  v.   Westview          Instruments,                       Inc.                         ,                            116                                S. Ct. 1384, 1387 (1996) ("Since evidence of          common law practice  at the time of  the Framing does not  entail          application of  the  Seventh Amendment's  jury guarantee  to  the          construction                       of                         the                             [patent] claim document, we must look elsewhere          to             characterize this determination of meaning in order to allocate          it as  between court or jury.   Existing precedent, the  relative          interpretive skills  of judges and  juries, and statutory  policy          considerations all favor  allocating construction  issues to  the          court.").                     Much                         of                            the                               reasoning                                         of                                            the Court in Westview applies to          the              role                   of                     a                       trial                             judge in deciding disputes about the record for          judicial                   review.  Compared with judges, jurors typically have less          experience                     and training relevant to competence to review decisions          of             others                    with                        an                           appropriate degree of deference while at the same          time assuring no misunderstanding or misapplication of  governing                                        -27-          law.                               And,                    historically,                                  juries have had no part in judicial review          of out-of-court decisions.                    Concerning                               factors bearing upon who is better positioned          to decide, in determining  whether responsibility for deciding  a          factual                  dispute                          of                            a                              distinctive kind should be allocated to juries          or  instead to  judges, the  Westview opinion  cited other  Court          decisions made in other contexts, including Miller v. Fenton, 474          U.S. 104,  114 (1985) (when an  issue "falls somewhere between  a          pristine                   legal standard and a simple historical fact, the fact/law          distinction  at times has  turned on a  determination that, as  a          matter of the sound administration of justice, one judicial actor          is  better  positioned  than  another  to  decide  the  issue  in          question.").  Other decisions  in the 1980s and 1990s have  added          more illustrations that, by analogy, reinforce the conclusion  we          reach                in                   this case about the role of the judge in judicial review.          See, e.g ., Thompson v.  Keohane, 116 S.  Ct. 457 (1995)  (habeas          petitioner  serving  a sentence  under  a  state  conviction  had          confessed, during a two-hour tape-recorded session at the  Alaska          state trooper headquarters, to  killing his former wife;  federal          district                   court denied his petition for habeas relief on the ground          that               the                   trooper                          had                              obtained his confession without giving Miranda          warnings; the Ninth Circuit affirmed on the ground that the state          court's ruling that the accused was not "in custody" for  Miranda          purposes  was  a  "fact" determination  as  to  which  S  2254(d)          establishes  a  presumption  of  correctness;  this  "Court   has          classified                     as                       'factual                                issues' within S 2254(d)'s compass questions                                        -28-          extending beyond the  determination of 'what happened'";  "[t]his          category notably includes:  competence to stand trial; and  juror          impartiality"; "[w]hile these issues encompass more than  'basic,          primary,                   or                      historical facts,' their resolution depends heavily on          the trial court's appraisal of witness credibility and demeanor";          "[t]his                  Court has reasoned that a trial court is better positioned          to make decisions of  this genre, and has therefore accorded  the          judgment                   of                      the jurist-observer 'presumptive weight'"; even so, we          independently review the state "in-custody" determination because          "[c]lassifying  'in custody'  as a  determination qualifying  for          independent review potentially may guide police, unify precedent,          and stabilize the law"); Bose Corp. v. Consumers Union of  United          States,                  Inc.,                       466 U.S. 485, 501 n.17 (1984) ("A finding of fact in          some               cases                     is inseparable from the principles through which it was          deduced.  At some point, the reasoning by which a fact is 'found'          crosses the line between application of those ordinary principles          of logic and common experience which are ordinarily entrusted  to          the finder of fact into the realm of a legal rule upon  which the          reviewing                    court                         must                              exercise its own independent judgment.").  See          also U.S. Term  Limits, Inc. v. Thornton,  115 S. Ct. 1842,  1875          (1995)  (Thomas,  J.,  dissenting,  joined  by  Rehnquist,  C.J.,          O'Connor, J.,  and Scalia, J.)  (citing Bose  and declaring:  "In          certain areas, indeed, this  Court apparently gives quite  little          deference to the initial factfinder, but rather 'exercise[s]  its          own              independent                         judgment' about the factual conclusions that should          be drawn from the record.").                                         -29-                          3.  Methods of Deciding Generally                    We turn  next to considering how  a trial judge may  go          about performing  the  function of  deciding disputes  about  the          record.                                 (a) Non-jury Trial                    Precedents                               support a district court's holding a non-jury          "trial"  for distinctive  and  limited purposes  associated  with          judicial                   review.  An example is an opinion of Justice (then Judge)          Breyer for the First Circuit in the context of judicial review of          a decision of a governmental agency.  E.g., Valley Citizens for a          Safe Environment v. Aldridge,  886 F.2d 458, 460 (1st Cir.  1989)          (Breyer,  J.) ("It  could happen  that a  particular instance  of          judicial                   review                          of                            an                               EIS raises a 'genuine' and 'material' dispute          of             facts                   that requires a trial:  Did the agency know, for example,          about some  important matter that  the EIS  ignored? ...  However          desirable this kind  of evidentiary supplementation as an aid  to          understanding highly technical, environmental matters, its use is          discretionary                        with                            the                                reviewing court.") (citations omitted).  The          practice seems equally applicable  to judicial review of  out-of-          court decisions of  private actors, such as the Committees  whose          decisions are under judicial review in this case.                    Even                         when                              a                               district                                        court proceeds with a non-jury trial          of this kind, or a  proceeding to take "evidence on motion,"  and          determines that it is necessary to make some finding with respect          to some historical fact (or to draw some reasoned inference  from          evidence) as to  which a genuine dispute exists, ordinarily  that                                        -30-          factual                  finding                          made                              by                                 the trial judge concerns matters bearing on          fairness                   of                      the                         process                                 by which the out-of-court decision was made          and not the merits of the claim.  A determination by a court that          it has jurisdiction to perform this distinctive function does not          imply                that                     it                       must                            also                                 have jurisdiction to find facts relevant to          the merits.                               (b)  Evidence on Motion                    Also, with respect to preparing for ruling on a pending          motion,                  a                    trial judge has, under Federal Rules, explicit authority          to convene  a kind of  evidentiary proceeding  that differs  from          taking evidence at  trial under Federal  Rule of Civil  Procedure          43(a).                      Evidence on Motions.   When  a motion  is                      based                            on                               facts not appearing of record the                      court may hear  the matter on  affidavits                      presented by the respective parties,  but                      the court may  direct that the matter  be                      heard wholly or partly on oral  testimony                      or deposition.          Fed. R.  Civ.  P. 43(d).    This procedural  authority,  however,          regarding                    the manner of taking evidence, does not expand the trial          court's jurisdiction.   Rules of procedure apply to how the court          may go about performing whatever function and role it is assigned          by constitutional, statutory,  and decisional  law governing  the          court's jurisdiction.                      Federal                            Rules                                  of                                    Civil                                          Procedure do not purport to expand          the court's jurisdiction from a role of judicial review to a role          of plenary adjudication.   This is a proposition inherent in  the                                        -31-          general aim that a court system's procedural rules be focused  on          fair               and                   efficient procedures rather than either jurisdictional or          substantive law.  And it is a proposition inherent in the  claim-          based  rather than  case-based  theme of  federal  subject-matter          jurisdiction, explained in Part II.B above.                     (c) An Issue on Which Decision is Reserved                    We have not decided, and need not decide today, whether          a court, when reviewing  a benefits determination, must  restrict          itself to  the "record" as  considered by  the decisionmaker  who          interpreted the employee benefits plan.  See Mongeluzo v.  Baxter          Travenol Long  Term Disability Ben. Plan,  46 F.3d 938 (9th  Cir.          1995);                 Quesinberry                                                      v.                               Lif                                 e Ins. Co. of North America, 987 F.2d 1017          (4th Cir. 1993);  Luby v. Teamsters Health, Welfare, and  Pension          Trust Funds,  944 F.2d 1176 (3d  Cir. 1991); compare Davidson  v.          Prudential  Ins. Co. of  America, 953 F.2d  1093, 1095 (8th  Cir.          1992).                    Rather,  we simply  emphasize for  clarity that  making          factual findings about what is or  is not properly a part of  the          "record"  for judicial  review  is fundamentally  different  from          asserting plenary authority  to decide the  merits of a  benefits          claim.                    As stated above,  a trial court  may take "evidence  on          motion"                  or                     convene                            a                              nonjury "trial" in order to develop a "record"          suitable                   for                      judicial                               review of a challenged out-of-court decision.          Also, a court may convene either of these kinds of proceedings to                                        -32-          determine whether the "record" on which the out-of-court decision          was  made  is  complete and,  if  not,  what  supplementation  is          appropriate.                        That the trial court has some range of discretion in          this respect is reinforced by analogy to precedent.  For example,          a            Fourth                   Circuit decision, calling attention to limitations on the          district                   court's discretion, also declares that the court has some          range of discretion to take evidence.                       [W]e                           continue to believe that the purposes                      of ERISA described  in our Berry  opinion                      warrant  significant  restraints  on  the                      district                               court's ability to allow evidence                      beyond   what  was   presented   to   the                      administrator.   In  our view,  the  most                      desirable approach to the proper scope of                      de novo review  under ERISA is one  which                      balances                               these multiple purposes of ERISA.                      Consequently, we adopt a scope of  review                      that permits  the district  court in  its                      discretion to allow evidence that was not                      before  the  plan  administrator.     The                      district  court   should   exercise   its                      discretion,     however,    only     when                      circumstances  clearly   establish   that                      additional  evidence   is  necessary   to                      conduct an adequate de novo review of the                      benefit decision.          Quesinberry, 987 F.2d at 1025.                    4.  Comparison with Summary Judgment Procedures                    Proceeding in the way just suggested may be better, for          very pragmatic  reasons, than hearing  and deciding  a motion  or          cross-motions for summary judgment.  See, e.g., Charlton Memorial          Hosp. v. Foxboro Co., 818 F. Supp. 456 (D. Mass. 1993).   Summary          judgment procedures were designed  primarily for prompt and  fair          determination of factual issues of the kind that go to the merits                                        -33-          and would be decided by the jury in a jury trial if  genuinely in          dispute.  Under  summary judgment procedure,  the movant has  the          opportunity                      and                         burden                                of making a showing that no material factual          issue is genuinely in dispute.  The opponent has the  opportunity          and              burden                     of proffering admissible evidence sufficient to support          a factual finding favorable to the challenged claim, Fed. R. Civ.          P.             56.                                   Under Rule 56 and local rules implementing its mandates, a          litigant                   who                       fails                            to                               take advantage of its opportunity by a timely          proffer of evidence  may be procedurally precluded from doing  so          later                on                  grounds                          concerned with fair process.  E.g., Mas Marques v.          Digital Equip. Corp., 637 F.2d 24, 29-30 (1st Cir. 1980).                    Invoking summary judgment procedures for factual issues          of             the                 kind                      that                          do                             not                                 go to the merits and would not be submitted          to a jury in any event is likely to produce misunderstanding  and          confusion                    about                          when                              and                                  how the factual dispute is to be resolved.          See Charlton Memorial Hosp., 818 F. Supp. at 53-54.  If the trial          judge                needs                      to hear and consider evidence to be prepared to decide          the dispute  over a factual issue  bearing upon the "record"  for          judicial                   review,                           Rule                               56                                  constraints do not apply, though the trial          judge                has                    discretion                              to                                 invoke like procedures.  Thus, no formal or          procedural barrier exists to the trial judge's deciding  disputed          factual issues about "the record," in proceedings upon a pretrial          motion rather than at trial.  Such a pretrial motion need not  be          labeled as one for summary  judgment.  If giving the motion  that          label leads trial lawyers or  the trial judge to assume that  the          judge                can                    never decide before trial if a finding with respect to a                                        -34-          genuinely disputable  fact must be  made, this flawed  assumption          reflects                   a                     misunderstanding that is likely to create confusion and          delay.  If, in any event, the decision of a factual dispute about          the record  is to be made by the judge, not by a jury, the  trial          judge                is                   not                      required                               to                                  await trial.  Instead, the trial judge may          exercise  discretion  about  the  method  of  proceeding,  taking          advantage  of the  opportunity for  flexibility about  scheduling          hearings in preparation for the decision about the record.                             5.  Providing for Discovery                          and Proffers of Relevant Evidence                    Of                       course,                               the                                  trial                                        judge should (and absent some ground          of preclusion, must), before deciding a disputable factual  issue          that               may                   be                      decisive of a dispute about the "record", give parties          a fair  opportunity  to discover  and present  relevant  evidence          bearing upon the issue.  Ordinarily  it is a good practice to  do          this by an order of record that clearly specifies the time within          which any proffer  is to be  made, and thus  reduces any risk  of          misunderstanding.                    Once                         this                              requirement                                         of                                            fair process has been satisfied,          ordinarily it is in the  public interest and the interest of  the          parties                  that                      factual                              disputes of the kind that are to be decided by          the trial judge,  and in no  event by a  jury, be decided  sooner          rather                 than                      later.  Exceptional circumstances of a particular case          may              make                   deferral appropriate, however, and this opinion is not to          be interpreted as stating any hard-edged rule of practice in this          respect.                                       We                      have                           called                                  attention to these matters in this opinion                                        -35-          solely                 for                     the purpose of clarifying the nature of judicial review          in respects that appear to have generated misunderstandings.          D.  Independent Claims and Overlapping Elements                       1.  Various Types of Independent Claims                    For completeness,  we take  note of  another source  of          potential misunderstanding, even though it does not apply to this          case.   In some  instances,  an independent  claim over  which  a          district court does  have plenary jurisdiction  for trial on  the          merits may include, among the elements of that claim or a defense          to             it,                 a                   factual issue that is the same or almost the same as some          factual                  element of a claim for benefits under an employee benefits          plan, decisions  regarding which are  subject to judicial  review          rather than trial on the merits.  In such an instance, the  court          has jurisdiction to  try the independent  claim, even though  the          court's role in relation to the plan benefits claim is limited to          judicial  review.   Some potential  illustrations are  identified          immediately below.                            2.  Forbidden Retaliatory Motive                           or Other Discriminatory Animus                    An                       independent                                   claim                                        may                                            arise when a party contends that          gender                 or                    racial animus was a motive for termination of employment          in retaliation for previous protected conduct of the employee  in          asserting that conditions of employment were discriminatory.   If          (1) the party making such  a contention demands a jury trial  and          proffers                   sufficient evidence to show a genuine dispute of material                                        -36-          fact, and (2) jury trial of the independent claim is  appropriate          under the law governing trial of that claim, the trial judge  has          two very distinct and materially different responsibilities.  One          is to  determine, "as  a matter  of law,"  whether the  proffered          evidence is sufficient, if  credited by the jury, to support  the          independent                      claim of discriminatory termination of employment and,          if so, to submit that claim to the jury by an appropriate  charge          and verdict form.   The trial judge's other responsibility is  to          perform the function of judicial review of the challenged out-of-          court decision  of  the claim  for  benefits under  the  employee          benefits plan.  For the reasons explained in Parts II.B and  II.C          above,  this responsibility  continues  to be  performed  without          participation of the jury, even though the independent claim that          is before the court in the same civil action is tried to a jury.                             3.  Violation of Obligation                             to Provide Plan Information                    Another                            kind                                 of                                   claim                                         that, in appropriate circumstances,          might                be                   treated                          as                             an                                independent claim is a claim of violation of          the              ERISA                    requirement of production of plan information, 29 U.S.C.          S 432(c).  We do not probe this possibility in this case, because          Recupero                   has                       not                          claimed                                  a violation of this provision; instead, as          explained in Part III.D of this opinion, below, she has claimed a          violation of notice requirements, with respect to her opportunity          to challenge a committee decision, under 29 U.S.C. S 1133.                                        -37-                 4.  Overlapping Components of an Independent Claim                          and a Claim Under Judicial Review                    It is possible that in some circumstances some  factual          component of an independent claim, or the measure of recovery  if          that  claim is  proved, will  closely coincide  with a  component          decisive of the merits of the out-of-court decision that is under          judicial review.  If this happens, a host of debatable issues may          exist concerning  claim or issue  preclusion, the  right to  jury          trial,  and  procedural  rules  and  practices  bearing  on  case          management in the district court.                    No                       independent                                   claim                                        was                                            alleged in the complaint in this          case,                however, and we do not undertake to address any of the added          complexities                       that                           arise                                 from joinder of a claim for judicial review          and              some                   independent claim.  This case presents only a question as          to scope  of jurisdiction in a  more typical setting of  judicial          review of an out-of-court benefits decision.          E.  Consensual Arrangement for Claims Determinations                    In this  case, the parties assigned  to the EBC in  the          first instance,  and to  the  EBRC in  the second  instance,  the          function                   of                      making decisions about the merits of individual claims          to             benefits                      under                           the                               plan.  This kind of consensual arrangement is          legally permissible. See Firestone, 489 U.S. at 115.                    Here,                          however,                                  each                                       party is in essence asking this court          to  construe   plan   provisions   as   consensually   overriding          constitutional and  statutory limits on  the jurisdiction of  the          courts,                  or                     to hold that an opposing party is estopped or precluded                                        -38-          from asserting that the plan provisions do not authorize  plenary          consideration of  plaintiff-appellant's  claims  on  the  merits.          Included  is the  request that  the district  court make  factual          findings                   on                     any                         genuinely disputable issues material to the outcome          on the merits.                    When the  law  authorizes  parties to  make  their  own          consensual                     arrangement                                for deciding individual claims for benefits,          ordinarily the parties may prescribe their own set of rules about          how decisions are to be made,  as long as they do not  transgress          prescribed legal  limits on the  scope and  nature of  consensual          arrangements.  E.g., Mitsubishi  Motors Corp. v. Soler  Chrysler-          Plymouth, Inc., 473 U.S. 614, 628-39 (1985)(parties' agreement to          arbitrate anti-trust  claims is enforceable  absent a showing  of          circumstances                       that would warrant setting aside the forum selection          clause).   If, however, the parties  attempt by their consent  to          expand the scope  of a district court's jurisdiction beyond  that          authorized by law, their attempt is legally unenforceable in this          respect for the reasons explained in Parts II.B and II.C of  this          opinion.          F.  Summary of Conclusions Regarding Scope of Jurisdiction                    The                        constitutionally                                        and                                            statutorily limited jurisdiction          of federal  courts cannot be expanded  by a stipulation or  joint          request of the  parties that the  courts become their  privately-          appointed alternative to the method of adjudication available  to          them under  law.   Ordinarily, claims  benefit determinations  of                                        -39-          consensually  designated  private  decisionmakers  on  whom  plan          provisions confer authority to exercise discretion are subject to          judicial                   review                          under                               an                                  arbitrary and capricious standard, but not          to plenary determinations on the merits.                    In                       contrast,                                 the decision of disputes about the "record"          for              judicial                      review                             ordinarily are within the scope of the district          court's                  jurisdiction,                               and the trial judge's role ordinarily extends          to deciding factual as well as legal components of such a dispute          about the "record."                    Independent claims in addition to a claim for  judicial          review may present added complexities, but we need not and do not          address these matters because no independent claim is asserted in          this case.                    With these  fundamental  characteristics of  the  legal          system as background, one may locate the legal and factual issues          of             a               particular                         civil                               action in the larger legal landscape.  In the          remainder of  this  opinion, we  consider  each of  the  material          contentions                      of the parties regarding the precise way in which this          controversy has proceeded both before and after the filing of the          civil action in the United States District Court for the District          of Massachusetts.                      III.  Particular Contentions in This Case          A.  Introduction                    The                        parties                                to                                  this                                       appeal have acknowledged, and we have          noted, that some aspects of the out-of-court decisions of the NET                                        -40-          Committees must  be judicially reviewed  under an "arbitrary  and          capricious" standard.  Other aspects of the challenged  decisions          must be decided either as matters  of law are decided or under  a          standard  less deferential  than  an "arbitrary  and  capricious"          standard.  Also,  as proceedings have  developed both before  and          after the  filing of  the civil  action, some  issues earlier  in          controversy have become moot or an opportunity for challenge  has          been lost under rules of procedural preclusion.                    In this Part III, we discuss separately these different          kinds  of  issues, beginning  with  asserted  violations  of  the          applicable "arbitrary and capricious" standard.          B.  Alleged Violations of "Arbitrary and Capricious" Standard                    Having determined  that  the role  of the  courts  with          respect  to typical  claims under  an employee  benefits plan  is          jurisdictionally limited  to review, if  a plan administrator  or          fiduciary                    was given discretion to decide particular claims, we now          consider                   whether Recupero has shown that the Committees created to          decide claims of the type at issue in this case acted arbitrarily          and capriciously.  Recupero argues:                       Ms. Recupero was seriously injured in  an                      elevator accident at her workplace  while                      she  was on-duty  and being  paid by  the                      company.  At the time of her accident she                      was in the  course of her employment  and                      was                          under                                the direction and control of her                      employer.  The only reasonable meaning of                      the Plan  language is  that Ms.  Recupero                      sustained                                an                                   "accident" and not "sickness"                      and                          it                             was                                 arbitrary and capricious of the                      Plan to  deny her  "accident"  disability                      claim.                                        -41-          (Appellant's Br. at 6-7.)   Recupero contends that she was:                      ...  en route  to  obtain coffee  in  the                      building lobby  at the  direction of  her                      supervisor on company time at the time of                      the  accident.     She   made  ...   [an]                      adjustment [from  her  usual time  for  a                      break] at the direction of her supervisor                      for                          the                              sole                                   purpose of furthering, and in                      direct                             connection with, the performance of                      her duties to  enable her to establish  a                      conference call with a customer at a time                      when she would  otherwise have been  away                      from her usual work station.           (Id.                            at                  13).                        Thus, she argues, she was "on-duty" at the time that          she sustained her injury, and is entitled to "accident benefits."          (Id. at 14.)                    The                        defendant-appellee counters that "[i]t is undisputed          that               Recupero                       was                           injured during break time, after leaving her work          station  while  on  an  elevator en  route  to  a  coffee  shop."          (Appellees' Br.  at 7.)    This fact,  NET contends,  shows  that          Recupero                   was                      not                          "solely" and "directly" engaged in the performance          of duties  at the time of the  injury.  (Id.)  Thus, the  defense          argument  goes,  the  Committees  did  not  act  arbitrarily  and          capriciously in  determining that  Recupero was  not entitled  to          "accident benefits."  (Id.)                    As already noted, the district court ruled in favor  of          NET              on                 this                      issue.                                                         The                                 district court rejected Recupero's argument          that, because  she was  taking her break  at the  request of  her          employer, her injuries should entitle her to "Accident Disability          Benefits."  The court stated:                      Recupero's argument is predicated on  the                      assertion that she was taking her  coffee                                        -42-                      break a half hour early at the request of                      her supervisor in order to accommodate  a                      job-related  phone  call  which  she  was                      expecting.  Such  a fact is not  properly                      before the court for two reasons.  First,                      the                          court,                                 when applying the arbitrary and                      capricious standard  of review, may  only                      review the  actions of  the fiduciary  in                      light of the evidence which was before it                      at  the  time it made  its decision.   It                      does not  appear  that the  NET  Benefits                      Office,  the EBC  or  the EBCRC  had  the                      benefit of considering this fact.   (#20,                      Exh.                           2,                              Affidavit of Richard Waldron, q7).                      Second,  this  is  a  "mere   allegation"                      unsupported                                  "by affidavits or as otherwise                      provided" under  Fed.  R. Civ.  P.  56(e)                      since Recupero offers no evidence to this                      court to support this contention.          (Recupero v. New England Telephone & Telegraph Co., Civil  Action          No. 94-12266-MLW, Memorandum and Order, Sept. 20, 1996 at 9 n.5.)                    The                        EBC                            and                                the EBRC decided that Recupero qualified for          "Sickness                    Disability Benefits" only.  The district court correctly          concluded that  this decision was  not arbitrary and  capricious.          Three lines of reasoning support this conclusion.                     First.   The  court  below  correctly  determined  that          Recupero had not proffered evidence before the EBC or EBRC of any          irregularity in  the break  from work that  she was  on when  the          incident occurred.   (Id.)    Nothing  in the  record before  the          Committees, the record  before the district court, or the  record          before                 this                     court                           suggests otherwise.  If Recupero did not proffer,          before the Committees, factual support for a contention that  the          circumstances of the incident brought it within the meaning of an          "accident"                     because she was taking her break at a specific time, at          the              behest                     of her supervisor, in order to allow her to perform her                                        -43-          duties                 at                    a                     later                           time,                                 then the record before the EBC and the EBRC          was not sufficient to support a court determination, on  judicial          review, that the  decisions of the Committees were arbitrary  and          capricious.                    Second.                                                         Despite                                    the                                        difficulties of drawing bright lines          of             separation and fitting every conceivable circumstance of injury          into  either  the  category of  "accident"  or  the  category  of          "sickness,"                      the                         Committees did not act arbitrarily and capriciously          when interpreting "on-duty" to exclude break time, regardless  of          the  nature of any reason or reasons  for the break.  A plan  may          prescribe a definition  of "on-duty" that takes into account  the          myriad                 of                    possible                            ways                                 in which and times at which an employee may          be injured.  A plan that does so may require of the  out-of-court          decisionmakers, in deciding a particular claim, that they make an          evaluative  determination  rather   than  a  rigorously   logical          application of  bright-line  rules  that leave  no  choice,  even          reasoned                   choice, in arriving at a decision concerning the merit of          a particular claim.                     It is true that in  the context of trial of a  paradigm          tort               or                  contract claim, "evaluative issues" often go to a jury for          decision.  See, e.g., Springer v. Seamen, 821 F.2d 871, 876  (1st          Cir.               1987)                     (in tort law, not only ordinary fact questions but also          "evaluative applications  of legal standards  (such as the  legal          concept of  'foreseeability')  to  the facts  are  properly  jury          questions"), cited  with approval in  Dedham Water v.  Cumberland          Farms Dairy, 972 F.2d 453 (1st Cir. 1992).                                          -44-                    In  the context  of  judicial  review  of  out-of-court          decisions, however, if  employee benefit  plan provisions  confer          discretion  on  an  out-of-court  decisionmaker,  ordinarily  the          evaluative determinations  of that  decisionmaker are  judicially          reviewed under a deferential standard, as explained in Parts II.B          and II.C of this opinion.                    Section                            5(5)                                 of the plan before us in this record is one          of the provisions  the interpretation of which was challenged  in          this case.  It provides:                      Relationship  of  Injury  to  Employment.                      Accidental                                 injuries shall be considered as                      arising  out of  and  in  the  course  of                      employment  only  where  the  injury  has                      resulted solely from accident during  and                      in direct connection with the performance                      of  duties  to  which  the  employee   is                      assigned                               in                                  the service of the Company, or                      was assigned by  the Former Affiliate  or                      Associated or  Allied Company from  which                      the employee was reassigned as of January                      1,  1984, or  which  he  is  directed  to                      perform  by   proper  authority,  or   in                      voluntarily  protecting   the   Company's                      property or interests.   There must be  a                      clear and well-established history of the                      cause   and   circumstances   of   injury                      accidentally  inflicted,  which  must  be                      sufficient to produce the alleged injury,                      and there  must be satisfactory  evidence                      that  such injury  renders  the  employee                      unable to perform his duty in the service                      of the Company.          (Appellees' Br.  at 59-60)  (emphasis  added).   In view  of  the          emphasized phrase in this passage quoted from the plan, we cannot          say              that                   the                      district                               court erred in its interpretation of the plan          as supporting NET's position in this appeal.                                          -45-                    Third.                                                       Recupero apparently bases her argument, in part,          on an  assumption  that because  she  was eligible  for  worker's          compensation,                       her injury should be treated, as a matter of law, as          having occurred "on-duty."  This assumed premise is erroneous, as          a matter of law.  Neither ERISA nor any other source of authority          declares  that  the   standards  of   eligibility  for   workers'          compensation benefits and  accident disability benefits under  an          ERISA-regulated                          plan                              be                                 the same.  See Pagan v. NYNEX Pension Plan,          52 F.3d 438 (2d Cir. 1995).  Further, the plan provisions in this          case do not explicitly prescribe a test for "on-duty" status that          mirrors the test commonly used in worker compensation systems.                     For these reasons, we conclude that the district  court          did              not                  err                      in deciding that the decisions of the EBC and the EBRC          were not arbitrary and capricious.              C.  Recupero's Request for Reclassification of Benefits                    We take  note that plaintiff  is not seeking  "Sickness          Disability                     Benefits"                              beyond those already paid to her.  Rather, she          is asking merely that we  order, or direct the district court  to          order,  that  the  benefits already  paid  to  her  as  "Sickness          Disability Benefits" be declared to be reclassified as  "Accident          Disability Benefits."  (Appellant's Br. at 1 n.1.)                      Recupero                             does not argue, nor do we know of any ground on          which she could creditably do so, that she was entitled to such a          reclassificat                      ion decision by the district court, or is entitled to          have               this                    court                         declare                                 such a reclassification.  Instead, she asks                                        -46-          this               court,                      as a matter of discretion in the interests of justice,          to             declare                    the                        reclassification or order the district court to make          a discretionary decision regarding reclassification.                    We are not persuaded that we should exercise discretion          in this way at this late stage in the development of  proceedings          regarding Recupero's  claim  for benefits,  even  if we  were  to          determine                    that we have jurisdiction to do so.  Recupero has failed          to             place                   before us, or before the district court, a record showing          that               she                   made                       a                         request                                 that the Committees make a determination of          this               type.                                           Nor has she called to our attention any good cause for          determining that she should be allowed to present this request at          this               late                    point in the face of the apparent unfairness of allowing          a            claimant                     to                       proceed                               on                                  one set of contentions to the threshold of          final resolution and only then assert a new theory of claim.   In          these  circumstances,   without  undertaking   to  resolve   very          substantial                      doubts about our jurisdiction to entertain such a late          request                  for                     a                       declaration of "reclassification" of benefits she was          paid and accepted as "Sickness Disability Benefits," we  conclude          that her request must be denied as untimely.  This conclusion  is          amply  supported by  precedent.    See, e.g.,  United  States  v.          Bongiorno, 106  F.3d 1027, 1034  (1st Cir. 1997)  (constitutional          arguments  not raised in  the lower court  cannot be advanced  on          appeal);                   Armstrong                                                      v.                               Jef                                 ferson Smurfit & Corp., 30 F.3d 11, 13 n.4          (1st Cir.  1994)  (argument that  reimbursement of taxes paid  in          lump-sum payments could be benefits under ERISA waived when  made          for the first time on appeal.)                                        -47-          D.        Interpretation of Plan Provisions                    As  a  general  rule  (independently  of  the   special          characteristics   of   ERISA   claims   cases),   disputes   over          interpretation                         of                           a                             document (or set of documents taken together as          a            unit)                  are                      decided as matters of law are decided.  See, e.g., Den          Norske                 Bank,                      A.S.                           v.                              Firs                                 t Nat. Bank of Boston, 75 F.3d 49, 52 (1st          Cir.               1996)("Normally, contract interpretation is a question of law          for the court.").  And,  as a general rule, courts may  determine          that               an                  out-of-court decision was arbitrary and capricious if that          decision was explicitly or implicitly founded on an error of law.          E.g.             ,                United                      States                                                        v.                                Me                                 mbers of Estate of Boothby, 16 F.3d 19, 21          (1st  Cir. 1994)  ("In  scrutinizing  administrative  actions,  a          reviewing court is free to correct errors of law, but, otherwise,          the court  is limited  to a  search for  arbitrary or  capricious          behavior.").                    If a  genuine dispute exists  regarding existence of  a          contract, ordinarily that issue  "is a question of fact, for  the          jury ... [unless] the  evidence consists only of writings, or  is          uncontroverted," in which even "the court can decide the  issue."          American Private Line Services, Inc. v.  Eastern Microwave, Inc.,          980 F.2d 33, 35 (1st Cir. 1992).  Even if the core of the dispute          is what interpretation to give to a document or to uncontroverted          oral  communications, in  exceptional circumstances  an issue  of          interpretatio                      n on which reasonable persons may differ is submitted          to             a               "trier                      of                        fact."                                                               Bo                                 ston Edison Co. v. F.E.R.C., 856 F.2d 361,          367 n.3 (1st Cir. 1988).  But this exception cannot be invoked by                                        -48-          a            party                  who                      has failed to make any proffer of documentary or other          evidence                   sufficient                             to                                support a determination of ambiguity in some          respect material to disposition on the merits of the  controversy          before the court.  See, e.g., Donoghue v. IBC USA (Publications),          Inc., 70 F.3d 206, 215 (1st Cir. 1995) (a hypothetical allegation          of meaning, whether ambiguity is alleged or not, is inadequate to          present a genuine dispute as to a material issue; even if a party          is "claiming  to benefit from  ambiguity (for  example, by  being          allowed   to   proffer   extrinsic   evidence   supporting    its          interpretatio                      n) [that party] must show ambiguity in the meaning of          the agreement with respect to  the very issue in dispute").   The          record before us in this case is devoid of any such proffer.                    For  these  reasons,  we  conclude,  without   deciding          unsettled issues about  jury trial in ERISA cases generally  (see          decisions cited in Part II.C.2, supra), that in no event would it          be             proper                    in                      this                           case                                to submit to a jury issues of interpretation          of the  NET  plan provisions  bearing upon  "Accident  Disability          Benefits" claimed  by Recupero.   Moreover, such an  interpretive          question could go to a jury only if the court, in which  the jury          sits,                has                   plenary                           jurisdiction.  For the reasons explained in Parts          II.B               and                   II.C of this opinion, the exceptional allowance of a jury          decision  on an  interpretive question  does not  apply when  the          court's role  is limited to  judicial review  of an  out-of-court          decision.                                         -49-          E.  Futility of Remand                    NET  argues  that  the   same  outcome  on  issues   of          interpretation of NET plan provisions must be reached on  another          ground.                                     The                       argument is that the record before the district court          was sufficient, and the record on appeal is sufficient, for  this          court  to determine  that remand  would be  futile because,  from          undisputed                     facts                          that                               Recupero does not suggest could be challenged          if             remand                    were ordered, it is apparent that Recupero's claim fails          on  the  merits.    We  conclude  that,  though  from  a  limited          perspective,  the  decision of  this  matter  might  have  seemed          debatable,  closer probing  supports this  defense position  with          respect to issues concerning the meaning and application to  this          case of  the NET plan  provisions regarding "Accident  Disability          Benefits."                      Recupero                             has                                 entirely failed, in proceedings before this          civil action was filed, in proceedings in the court below, and on          appeal, to  make any proffer of  relevant evidence that could  be          determined to be sufficient to support her contentions that  plan          provisions on eligibility for Accident Disability Benefits should          be interpreted in a way that would present a genuinely disputable          factual issue bearing upon her claim on the merits.            F.  Denial of Notice                    As an independent basis for rejecting Recupero's  claim          for some form of relief because of alleged violation of 29 U.S.C.          S            1133                 with                      respect to notice about how to pursue her rights under                                        -50-          the plan  after denial of her  benefits claim, NET contends  that          Recupero                   failed                         to                            proffer any admissible evidence, at any stage of          proceedings,  to  support  any  finding  of  prejudice  to   her.          (Appellees' Br. at 9, 20-21.)  The district court determined that          Recupero                   had                      not                          proffered evidence sufficient to support a finding          of prejudice  in  any relevant  sense.   (Memorandum  and  Order,          Sept. 20, 1996 at 14-15.)                      In  effect,  Recupero  has  attempted  to   demonstrate          prejudice by arguing that it is inherent in the circumstances  of          any claim  of the type  she has made,  rather than by  proffering          evidence, either to the  Committees or to the district court,  to          show that in some special way the circumstances of her case  were          unique                 or                    at                       least exceptional.  We conclude that allowing a claim          for relief  because of inadequacy  of formal  notice without  any          showing that a precisely correct form of notice would have made a          difference would result  in benefit claims outcomes  inconsistent          with ERISA aims  of providing secure funding of employee  benefit          plans.                      In  these   circumstances,   we   conclude   that   the          determination by the district court that Recupero failed to  show          prejudice in  a  relevant sense  is unassailable,  regardless  of          whether we treat it as a factual finding by the district court or          instead as a determination of insufficiency of proffered evidence          "as a matter of law."                                         -51-                                     CONCLUSION                    For the reasons stated in this opinion, it is ORDERED:                    The                        judgment                                 of                                   the                                       district court is AFFIRMED.  Costs of          the appeal are awarded to Appellees.                                        -52-
