                       UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF COLUMBIA
__________________________________________
                                           )
CAROLINA ZALDUONDO,                        )
                                           )
                  Plaintiff,               )
                                           )
            v.                             ) Civil No. 10-1685 (RCL)
                                           )
AETNA LIFE INSURANCE COMPANY,              )
                                           )
                  Defendant.               )
__________________________________________)

                                 MEMORANDUM OPINION

       Plaintiff Carolina Zalduondo brought this ERISA suit against defendant Aetna Life

Insurance Company, alleging denial of benefits and the improper refusal to pay for her hip

arthroscopy at Aetna’s in-network rate. Before the Court is Aetna’s Motion for Summary

Judgment, Sept. 24, 2012, ECF No. 37. Upon consideration of the defendant’s motion, the

plaintiff’s Opposition, Oct. 16, 2012, ECF No. 43, the defendant’s Reply thereto, Oct. 26, 2012,

ECF No. 47, the applicable law, and the record herein, the Court will deny Aetna’s motion

without prejudice and instruct Aetna to supplement the administrative record with the official

Plan documents.

I.     BACKGROUND

       Zalduondo participated in WPP Group USA, Inc.’s self-funded employee healthcare

benefit plan (“the Plan”). Def.’s Statement of Undisputed Material Fact in support of its Mot.

Summ. J. ¶¶ 2, 5, ECF No. 38 (“Def.’s SUMF”); see Pl.’s Am. Compl. ¶¶ 4–7, ECF No. 5. WPP

Group is the Plan sponsor and administrator; however, Aetna, pursuant to an Administrative

Services Agreement (“ASA”) with WPP Group, is a service provider to the Plan that administers

and adjudicates claims for benefits under the Plan. Def.’s SUMF ¶¶ 8–9; Pl.’s Am. Compl. ¶ 9;
see ASA, AR1 120–58, ECF No. 40. According to the Summary Plan Description (“SPD”) for

the WPP Group USA, Inc. Benefit Plan, WPP Group “delegated to Aetna the discretionary

authority to construe and interpret the terms of the Plan, and to make final, binding

determinations concerning availability of benefits under the Plan.” AR 248; see Def.’s SUMF

¶¶15–18; Pl.’s Statement of Material Facts to which Genuine Issues Exist ¶ 2, ECF No. 43–1

(“Pl.’s SDMF”); Pl.’s Am. Compl. ¶ 10. However, the SPD is prefaced by the following, clearly

identified, disclaimer:

           Please note that this SPD describes benefits provided under a portion of the WPP
           Group USA, Inc. Benefits Plan. The information provided in this SPD is not
           intended to be a complete description of every detail of the WPP Group USA, Inc.
           Benefits Plan and the official plan documents (collectively, the “Plan
           Documents”). The benefits described herein are governed by the underlying Plan
           Documents. Accordingly, if there is a discrepancy or conflict between this SPD
           and the Plan Documents, then the Plan Documents will govern. The official Plan
           Documents are always controlling over any statement made in this SPD or by any
           employee of WPP, you[r] Employer, Aetna Life Insurance Company, or any other
           administrator. Benefits described in this SPD are not insured with Aetna or any
           of its affiliates, but will be paid from the Employer’s funds. Aetna and its
           affiliates provide certain administrative services under the Plan.

AR 167; Pl.’s SDMF ¶ 6. Aetna did not include the Plan documents in the administrative record,

and redacted Appendix I of the proffered ASA, which is referenced several times in the ASA as

providing a description of the Plan. See Pl.’s SDMF ¶ 3; AR 120, 121, 130.

           A.       Zalduondo’s Medical Treatment

           Zalduondo alleges she began experiencing “severe pain in her hip” in 2009, for which she

pursued medical treatment. Pl.’s SDMF ¶ 21; Def.’s SUMF ¶ 28.                             On August 21, 2009,

Zalduondo consulted with Dr. Terri McCambridge, an in-network provider. See AR 77. Dr.

McCambridge ordered an MRI of Zalduondo’s distressed hip, and the report revealed two labral

tears. Id. Dr. McCambridge referred Zalduondo to Dr. Andrew Wolff, an out-of-network


1
    AR __ refers to page numbers in the Administrative Record, filed under seal by Aetna as Exhibit A to its SUMF.

                                                          2
orthopedic surgeon, for arthroscopic hip surgery. Def.’s SUMF ¶ 31; Pl.’s SDMF ¶ 23 (not

disputing Def.’s SUMF ¶ 31).                 Six days later, Zalduondo contacted Aetna to request

precertification for Dr. Wolff’s services at the in-network benefit rate, claiming “there were no

in-network physicians who could provide her surgery.” Pl.’s SDMF ¶ 26; Def.’s SUMF ¶ 32.

On September 16, after receiving notice that Aetna denied her precertification request and prior

to appealing that determination, Zalduondo elected to undergo arthroscopic hip surgery

performed by Dr. Wolff. See Def.’s SUMF ¶¶ 33–39; Pl.’s SDMF ¶ 31 (not disputing the

surgery but arguing she first consulted in-network providers listed by Aetna); Def.’s Reply ¶ 2.

Following her surgery, Zalduondo received Explanations of Benefits (“EOBs”) indicating certain

charges relating to the surgery were not payable either because “(1) [Zalduondo] failed to obtain

precertification for services provided by a non-participating provider (i.e., Dr. Wolff); (2) the

charges were not reasonable and appropriate; and/or (3) the charges were for or connected with

services or supplies considered by Aetna to be experimental or investigational.” Def.’s SUMF ¶

41 (internal citations omitted) (not disputing Pl.’s Amend. Compl. ¶ 29).

         B.       Aetna’s Claim Adjudication

         Zalduondo contacted Aetna prior to undergoing surgery in order to request that services

performed by Dr. Wolff be covered at the in-network benefit rate. Def.’s SUMF ¶ 32; Pl.’s

Opp’n 5; AR 81. On September 1, 2009, Aetna Medical Director Dr. Richard Fornadel denied

the request for coverage at the in-network preferred benefit level, noting that the reason2 for


2
  Notwithstanding the singular reason stated in Aetna’s coverage determination letter, Zalduondo alleges the letter
“inexplicably states that the decision to not treat Dr. Wolff at the in network [sic] preferred benefit level was made
in part because the services requested were not medically necessary.” Pl.’s Opp’n 5; see Pl.’s SDMF ¶ 34 (claiming
Aetna’s denial letter “states that in addition to there being other in-network physicians available, the decision was
made because the services requested were not medically necessary”). The Court acknowledges the text Zalduondo
references, which states that Aetna’s decision was based on guiding provisions “with respect to services and supplies
that are not medically necessary.” See AR 81. This revelation does not necessarily help Zalduondo, however, as it
suggests that, given the text of her subsequent appeal of this denial letter, she appealed only the determination that
there were in-network physicians available, and, furthermore, that she elected to proceed with surgery even after

                                                          3
denial was that “services are available from participating providers.”                     AR 81.       The letter

provided the names and contact information for three participating providers that allegedly

offered the requested services and directed Zalduondo to Aetna DocFind, an online directory

where Zalduondo could find additional participating providers. Id. Additionally, the letter

stated, in bold text:

        Your benefit plan includes an out-of-network benefit component for the use of
        non-participating providers. If you elect to use the services of the above
        mentioned non-participating provider, your out-of-network non-preferred benefit
        level will apply.

        In order for you to receive the in-network preferred benefit level of coverage,
        either you or an Aetna participating provider must obtain prior coverage approval.

Id. The letter went on to disclose the availability and process of appeals to the adverse benefits

determination. AR 82–83.

          Zalduondo appealed Aetna’s claim determination on October 1, 2009, stating that “none

of the in-network/participating providers in my designated area . . . were viable options.” AR 67.

Zalduondo’s appeal admitted that she received Aetna’s letter on September 7, prior to

undergoing surgery, and that she carefully investigated the in-network physicians listed in the

letter only to find that two of the three did not perform hip arthroscopy and the remaining

provider, Dr. John N. Delahay, “appear[ed] to have no/limited experience with arthroscopic hip

surgery . . . clearly establishing a lack of qualification.” AR 67–68. Zalduondo requested that

the claim determination be overturned because, after exploring “all of the participating providers

in [her] designated area,” she “established that none . . . are viable options due to either no longer

practicing, not practicing [arthroscopic hip surgery] or not being viable options to provide

[arthroscopic hip surgery].” AR 68. Zalduondo attempted to clarify what she meant by “viable


being provided with a letter that “inexplicably” provided that the services were deemed not medically necessary.
See AR 67–69.

                                                         4
option,” stating that, for her, “it was of the utmost importance . . . to be treated by an orthopaedic

that has performed a sufficient number of arthroscopic hip surgeries.” AR 69. Absent in

Zalduondo’s three-page appeal is any mention of a challenge to a determination that her

procedure was not medically necessary. See AR 67–69.

       On November 18, 2009, Aetna sent Zalduondo a letter in response to her first-level

appeal. AR 85. In its Level 1 Appeal Decision, Aetna twice clarified that the appeal was about

“the denial of in-network preferred benefit level for health care services provided by Dr. Wolff.”

Id. Aetna claimed to have reviewed “all available information,” including “[Zalduondo’s] appeal

letter, the operative report, Aetna Patient Management file, DocFind and WPP Group USA,

Inc.’s Summary Plan Description.” Id. Aetna upheld its previous determination because it found

available participating providers who could have performed Zalduondo’s requested healthcare

services, including Drs. Mark Zawadsky and Brian Evans.              Id.    Aetna further informed

Zalduondo that she could request a second level appeal by forwarding to Aetna, within sixty

days, any relevant material she wished Aetna to consider along with her request. AR 86.

       On January 8, 2010, Zalduondo requested a second level appeal of Aetna’s coverage

determination. AR 88. Zalduondo stated she was “not satisfied with Aetna’s ongoing decisions

regarding coverage in this matter, including but not limited to Aetna’s decision stated in the

November 18, 2009[,] appeal resolution letter.” Id. Zalduondo reiterated her opaque intent by

stating she wished to appeal “several of Aetna’s more recent decisions regarding coverage in this

matter.” Id. Despite this apparent attempt at initiating a new appeal of an unidentified coverage

determination, Zalduondo stated the letter “serve[d] as [her] official request for a second level

appeal;” however, on the same page she requested an extension “for filing [her] second level

appeal.” Id.



                                                  5
        Aetna responded to Zalduondo on January 27, 2010, with a letter entitled “Final Appeal

Decision,” in which it again upheld its decision to deny in-network benefits for out-of-network

services due to the availability of in-network providers to treat Zalduondo’s condition. AR 99.

Aetna specifically referenced the availability of Dr. Mark Zawadsky. Id. Aetna’s letter made no

reference to the request for an extension nor did it address Zalduondo’s intent to expand the

scope of her appeal. See id.

        On February 4th, allegedly before Zalduondo received the January 27th Final Appeal

Decision from Aetna, Zalduondo, through counsel, sent what was stated as “the second and final

appeal” of Aetna’s denial of in-network preferred benefit level for Dr. Wolff’s services. AR 107.

The argument submitted by counsel was that Dr. Zawadsky was not “qualified” to treat

Zalduondo because he had “only performed 25 arthroscopic surgeries.”3 Id. For the first time,

the letter specifically raised the separate issue of denial of coverage for Zalduondo’s procedure

on the ground that the procedures were experimental. AR 108. Zalduondo’s counsel requested a

favorable decision with respect to both the denial of the preferred benefit level for Dr. Wolff’s

services and the coverage determination that the arthroscopy was experimental. Id. On February

15, Aetna notified Zalduondo that it received her letter dated February 4, 2010, but that she had

exhausted her internal appeal rights. AR 103. The next step, according to Aetna’s Appeal

Process & Member Rights disclosure, was for Zalduondo to file a civil action under Section

502(a) of ERISA. See AR 118.




3
  Zalduondo’s SDMF is inconsistent with respect to her counsel’s statement that Dr. Zawadsky was unqualified due
to only performing twenty-five arthroscopic surgeries. Compare Pl.’s SDMF ¶ 30 (acknowledging that Aetna
identified in-network physicians that performed arthroscopic hip surgery, referencing Dr. Zawadsky), with id. ¶¶ 40–
41 (disputing the same reference to Dr. Zawadsky acknowledged in ¶ 30, and further stating that Dr. Zawadsky
“does not perform arthroscopic surgery to correct labral tears,” citing her counsel’s February 4 letter).

                                                         6
        C.       Procedural History

                 1.       Pleadings

        Zalduondo initiated this ERISA action with a Complaint filed in the district court on

October 4, 2010, alleging improper denial of her benefit claim, in violation of 29 U.S.C. § 1132,

and breach of fiduciary duties, in violation of § 1104. Pl.’s Compl. ¶¶ 35, 38, 45. Zalduondo

requested “payment of her medical bills consistent with the in-network preferred benefit level,”

“damages resulting from [Aetna’s] breach of [its] fiduciary duties,” and other “equitable

remedies.” Id. at 2, 8–9. After Aetna moved to dismiss the Complaint, see Def.’s Mot. Dismiss,

ECF No. 4, Zalduondo filed an Amended Complaint addressing deficiencies highlighted in

Aetna’s Motion to Dismiss. See Pl.’s Am. Compl. 1 (claiming to be bringing the claim “on

behalf of herself and WPP Group Medical Plan”); id. ¶¶ 9–11 (clarifying Aetna’s role as service

provider under the Plan and noting that Aetna “exercises discretion and control over the plan”

when administering claims).

        Aetna then filed a Motion to Dismiss the Amended Complaint, arguing that the denial of

benefits claim failed for failure to exhaust administrative remedies, and that the breach of

fiduciary duties claim failed for failure to allege harm to the Plan and because adequate remedy

was available under the denial of benefits claim. Def.’s Mot. Dismiss Am. Compl. 5–12, ECF

No. 6. The Court4 granted Aetna’s motion with respect to Claim Two (breach of fiduciary

duties) but preserved the claim that Aetna improperly denied Zalduondo’s request to treat the

services provided by Dr. Wolff at the in-network benefit level in Claim One. See Zalduondo v.

Aetna Life Ins. Co., 845 F. Supp. 2d 146, 154–55 (D.D.C. 2011). Zalduondo moved the Court to

reconsider its ruling in light of the Supreme Court’s decision in Cigna Corp. v. Amara, 131 S. Ct.


4
 This case was first assigned to Judge Roberts, and subsequently reassigned to Judge Howell on January 21, 2011.
On February 3, 2012, the case was reassigned by consent to the undersigned Judge.

                                                        7
1866 (2011), suggesting that the Court “rejected considering” the Supreme Court’s guidance on

the availability of § 1132(a)(3) claims in addition to § 1132(a)(1)(B) claims. Pl.’s Mem. in

support of its Mot. Recons. 3, ECF No. 17–1.           The Court disagreed with Zalduondo’s

interpretation of Amara, and clarified that her § 1132(a)(1)(B) claim failed because she failed to

plead, and the prima facie evidence failed to show, that § 1132(a)(1)(B) could not provide

adequate relief. See Mem. Op. 4–8, ECF No. 28; Order, ECF No. 27.

       Zalduondo also sought to cure her failure to plead exhaustion of administrative remedies

in her Amended Complaint by requesting leave to file a Second Amended Complaint. See Mot.

for leave to file a 2d Amend. Compl., ECF No. 18; Proposed Am. Compl. ¶ 4–5, ECF No. 18–2.

In addition to supplementing her Amended Complaint with facts, which if true demonstrated

exhaustion of remedies for her claim of improper denial of coverage, Zalduondo sought to

augment her Amended Complaint by adding the Plan and Plan Administrator as defendants and

adding a claim against the Plan Administrator. See Proposed Am. Compl. 1, ¶¶ 4–5, 23–24, 33–

34, 37–38, 55–57. The Court denied that motion but determined that the facts alleged in

paragraphs 4, 5, 23, 24, 33, 34, 37, and 38 established that Zalduondo exhausted her

administrative remedies and, therefore, deemed them incorporated into the Amended Complaint.

Mem. Op. 10, May 23, 2012, ECF No. 28. Thus, the Court allowed Zalduondo to proceed on

two claims under 29 U.S.C. § 1132(a)(1)(B): (1) that Aetna improperly refused to pay Dr. Wolff

at the in-network benefit level; and (2) that Aetna improperly denied coverage for the procedure.

Id.; Order, ECF No. 27.

               2.     Discovery

       On June 19, 2012, Zalduondo timely filed a motion for discovery. Mot. Disc., ECF No.

30. Zalduondo sought discovery “into the completeness of the administrative record,” alleging



                                                8
that a list of specific information was “notably absent” from the administrative record,

specifically

         (1) the Plan document; (2) a log of all oral communications between [Zalduondo]
         and [Aetna], with corresponding summaries of same; (3) a log of any
         communications relating to the initial request for preauthorization and decision
         denying preauthorization, with corresponding summaries of the same; (4)
         information and listings from ‘DocFind Provider Directory’ that [Aetna] says it
         relied upon when denying [Zalduondo’s] claim; and (5) resumes, compensation
         arrangements, and other information concerning the individuals who received
         [Zalduondo’s] claim.

Id. at 3. Zalduondo argued that “the Plan document is a necessary part of the administrative

record” since an ERISA claim brought under 29 U.S.C. § 1132(a)(1)(B) seeks benefits due

“under the terms of [the] plan.” Id. at 4. Aetna opposed discovery in toto, conclusorily arguing

that because the discretionary standard of review applied, the practice in the district court is to

“prohibit[] discovery.” Opp’n to Pl.’s Mot. Disc. ¶ 2, ECF No. 31. In response to Zalduondo’s

request for the Plan document, Aetna retorted that the administrative record included a ninety-

two page SPD for the Plan. Id. ¶ 7. Furthermore, Aetna noted that the record “never references

any ‘Plan document’ that Aetna relied upon other than the SPD.” Id.5

         On August 24, 2012, the Court denied Zalduondo’s request for discovery, finding that the

deficiencies she alleged in her motion could be properly addressed in her opposition to summary

judgment. Order, ECF No. 34. The Court deemed that production of the Plan document, at that

time, was premature; however, the Court instructed Zalduondo that she could “move to establish


5
  Aetna also faults Zalduondo for failure to note in her discovery motion that Aetna is not the Plan administrator,
which, under Aetna’s reading of Wright v. Metropolitan Life Ins. Co., 618 F. Supp. 2d 43 (D.D.C. 2009), suggests
production of a Plan document during discovery is unnecessary. Opp’n to Pl.’s Mot. Disc. 3–4. This Court finds
Aetna’s parenthetical, stating that the court in Wright “den[ied] plaintiff’s request for production of ERISA plan
document from insurer that . . . was not plan administrator,” id. at 4, materially erroneous. It is the Court’s belief
that Aetna may be referring to the defendant’s claim that production of plan documents was not required during its
claims review because it was not the plan administrator. See Wright, 618 F. Supp. 2d at 59 (addressing plaintiff’s
claim under 29 C.F.R. § 2560.503-1(h)(2)(iii)). In Wright, the plan document was produced in the administrative
record and served as the basis for the court’s standard of review determination and analysis of the plaintiff’s claims
under 29 U.S.C. § 1132(a)(1)(B). Id. at 46–48, 51–54, 56–59.

                                                           9
that the summary plan description is an inadequate basis for the Court to award summary

judgment.” Id.

               3.        Summary Judgment

       Aetna filed its motion for summary judgment with the Court on September 24, 2012,

contemporaneously submitting its SUMF and a consent motion to file Exhibit A, the

administrative record, under seal. See Def.’s Mot. Summ. J., ECF No. 37; Mem. in support of its

Mot., ECF No. 37–1 (“Def.’s Mem.”); SUMF, ECF No. 38; Mot. File Under Seal Ex. A to Def.’s

SUMF, ECF No. 35. After receiving an extension, Zalduondo filed her opposition brief and

SDMF. See Pl.’s Mem. in support of her Opp’n to Def.’s Mot. Summ. J., ECF No. 43 (“Pl.’s

Mem.”); Pl.’s SDMF, ECF No. 43–1. Conspicuously absent from her SDMF filing was Exhibit

B thereto, which Zalduondo attempted to file under seal via consent motion the following day.

See Consent Mot. to Seal Ex. B to Pl.’s SDMF, ECF No. 44. Exhibit B is described in this

Court’s order contemporaneously issued with this opinion, the underlying dispute of which need

not be revisited here.

II.    LEGAL STANDARD

       A.      Summary Judgment

       “The court shall grant summary judgment if the movant shows that (1) there is no

genuine dispute as to any material fact and (2) the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a) (emphasis added); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

247 (1986). The mere existence of any factual dispute will not defeat summary judgment; the

requirement is that there be no genuine dispute about a material fact. Anderson, 477 U.S. at

247–48. A fact is material if, under the applicable law, it could affect the outcome of the case.

Id. at 248. A dispute is genuine if the “evidence is such that a reasonable jury could return a



                                               10
verdict for the nonmoving party.” Id. In order for the dispute to be genuine, a nonmoving party

must present enough specific facts, beyond mere allegations or conclusory statements, that would

enable a reasonable jury to find in favor of the nonmoving party. Anderson, 477 U.S. at 252;

Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999).

       The court must find that the movant is entitled to “judgment as a matter of law” in order

to grant summary judgment, Fed. R. Civ. P. 56(a), and, therefore, must find that there is no

genuine issue for trial. There is no genuine issue for trial unless the nonmoving party provides

sufficient favorable evidence to enable a jury to return a verdict for the nonmoving party.

Anderson, 477 U.S. at 250–51. The burden is on the moving party to show that there is an

absence of evidence to support the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S.

317, 325 (1986).

       B.      ERISA Standard of Review under 29 U.S.C. § 1132(a)(1)(B)

       Congress enacted the Employee Retirement Income Security Act of 1974, Pub. L. No.

93-406, 88 Stat. 829 (codified in scattered sections of 29 U.S.C.) (“ERISA”), in order to protect

the interests of participants of employee benefit plans by establishing standards of conduct and

disclosure requirements for fiduciaries of employee benefit plans “and by providing for

appropriate remedies, sanctions, and ready access to the federal courts.” ERISA § 2(B). While

ERISA provides “a panoply of remedial devices,” Firestone Tire & Rubber Co. v. Bruch, 489

U.S. 101, 108 (1989) (internal quotations and citations omitted), section 502(a)(1)(B) of ERISA,

29 U.S.C. § 1132(a)(1)(B), provides that “[a] civil action may be brought by a participant or

beneficiary to recover benefits due to him under the terms of his plan, to enforce his rights under

the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.” In

reviewing a denial of benefits claim, the court is restricted to the evidence available to the claim



                                                  11
administrator at the time of the decision. Block v. Pitney Bowes, Inc., 952 F.2d 1450, 1455 (D.C.

Cir. 1992) (“Courts review ERISA-plan benefit decisions on the evidence presented to the plan

administrators, not on a record later made in another forum.”).

       So-called denial of benefits claims under § 1132(a)(1)(B) are subject to a judicially-

subscribed de novo standard of review “unless the benefit plan gives the administrator or

fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of

the plan.” Firestone, 489 U.S. at 115. When a benefit plan confers such discretionary authority,

a “more deferential arbitrary and capricious standard” applies. Pettaway v. Teachers Ins. &

Annuity Ass’n of Am., 644 F.3d 427, 433 (D.C. Cir. 2011) (citing Firestone, 489 U.S. at 115).

The D.C. Circuit “has defined the Firestone deferential standard as one of reasonableness.” Id.

at 435 (quoting Wagener v. SBC Pension Benefit Plan–Non Bargained Program, 407 F.3d 395,

402 (D.C. Cir. 2005); Block, 952 F.2d at 1452 (D.C. Cir. 1992)) (internal quotations omitted).

Thus, when a plaintiff brings a denial of benefits claim against a defendant who exercised its

plan-conferred discretionary authority, the question for the court is whether the defendant acted

reasonably in reaching its coverage determination. See id. Indeed, some courts articulate that,

when courts are confined to the deferential standard of review in an ERISA case, motions for

summary judgment “are merely procedural vehicles for the Court’s determination of whether the

[defendant’s] actions were reasonable.” James v. Int’l Painters & Allied Trades Indus. Pension

Plan, 844 F. Supp. 2d 131, 141 (D.D.C. 2012) (citing, e.g., Orndorf v. Paul Revere Life Ins. Co.,

404 F.3d 510, 517 (1st Cir. 2005)). The Court can find reasonableness where a decision “is the

result of a deliberate, principled reasoning process and . . . supported by substantial evidence.”

Buford v. UNUM Life Ins. Co. of Am., 290 F. Supp. 2d 92, 100 (D.D.C. 2003) (internal

quotations omitted). Substantial evidence simply refers to “‘more than a scintilla’” of evidence.



                                                 12
Id. (quoting Leonard v. Southwestern Bell Corp. Disability Income Plan, 341 F.3d 696, 701 (8th

Cir. 2003)).

III.    DISCUSSION

        Aetna first argues that its claim decision was entitled to deferential review due to the

grant of discretion found in the SPD. Def.’s Mem. 5–6 (citing Firestone). Under deferential

review, Aetna submits, the decision to deny the in-network benefit level to Zalduondo’s hip

arthroscopy was reasonable because the language of the SPD provided clear warning of the need

for precertification and the consequences of failing to do so. Id. at 6–7. Furthermore, Aetna

avers that Zalduondo based her claim on nothing more than her opinion that no in-network

orthopedic surgeon was qualified to treat her. See id. at 7–11. Additionally, Aetna argues that

the Court should dismiss without prejudice the claim for improper denial of coverage because

Zalduondo never appealed the determination that certain procedures were experimental, and

thus, failed to exhaust administrative remedies. Id. at 12–13.

        In her opposition, Zalduondo challenges Aetna’s standard of review argument and

submits that, even if a deferential standard applied, the administrative record lacks substantial

evidence to support a conclusion that Aetna’s coverage determinations were reasonable. 6 Pl.’s

Mem. 8–17. As a threshold matter, Zalduondo argues that without the Plan document, material

issues of fact remain as to whether the Plan grants discretionary authority to Aetna and whether

other terms in the SPD that Aetna relies upon in its defense constitute terms of the plan. See id.

at 8–12, 17.      Zalduondo bolstered her argument with a citation to Amara, wherein the Court

clearly stated that terms of an SPD do not constitute terms of the underlying plan. Id. at 9 (citing

6
  The Court is perplexed by the content of Zalduondo’s argument relating to her denial of coverage claim. See Pl.’s
Mem. at 13 n.4 (“Plaintiff requests that this Court review Defendant’s decision also on the denial to cover certain
treatments . . . contending they were experimental.”). Zalduondo seems to have never read this Court’s May 23,
2012, Order, in which the undersigned Judge allowed her to proceed on both the claim of denying the in-network
benefit level to Dr. Wolff’s procedures and of denial of coverage for her procedure. Order, ECF No. 27.

                                                        13
Amara, 131 S. Ct. at 1878). In its reply, Aetna avers—albeit in ignorance of Amara—that an

argument of improper reliance on the SPD in reaching its coverage determination is erroneous

because“‘[w]here the terms of a plan and the SPD conflict, the SPD controls.’” Def.’s Reply ¶

11, ECF No. 47 (quoting Burke v. Kodak Ret. Income Plan, 336 F.3d 103, 110 (2d Cir. 2003)).

       Zalduondo’s arguments, coupled with persuasive interpretations of Amara in the courts of

appeal and district courts in sister circuits, convince the Court that amidst the emerging case law,

it is prudent to deny Aetna’s motion without prejudice and instruct Aetna to supplement the

administrative record with the official Plan document(s).

       In Amara, the Supreme Court addressed a preliminary question of whether 29 U.S.C. §

1132(a)(1)(B) authorized a district court to change terms of a benefits plan and then order

payment of benefits due under the terms of the plan as reformed. 131 S. Ct. at 1871, 1876–78.

The Court found § 1132(a)(1)(B) unaccommodating to the district court’s attempt to reform plan

terms because, in that case, the alteration seemed more like an equitable remedy than

enforcement of a contract. Id. at 1877. The Solicitor General attempted to argue that, because

the “plan” included summary plan descriptions, which in that case resembled the reformed terms

the court sought to enforce, the court was enforcing the terms of the plan. Id. The Court flatly

rejected that argument, stating that “terms of statutorily required plan summaries,” such as SPDs,

cannot “be enforced (under § 502(a)(1)(B)) as the terms of the plan itself.” Id. Restating its

conclusion, the Court held that summary documents “provide communication with beneficiaries

about the plan, but . . . their statements do not themselves constitute the terms of the plan for

purposes of § 502(a)(1)(B).” Id. at 1878. In so deciding, the Court found the ERISA framework

suggested “that the information about the plan provided by [summary plan descriptions] is not

itself part of the plan.” Id. at 1877 (citing 29 U.S.C. § 1022(a)). To hold otherwise, and make



                                                14
summary language legally binding, the Court opined, would frustrate the objective of summary

plan descriptions—“clear, simple communication.” Id.

       In Pettaway, decided two months after Amara, the D.C. Circuit addressed an issue of first

impression—which plan documents the court may look to in determining whether a deferential

review applies. 644 F.3d at 433. The court believed SPDs were “far from . . . irrelevant” and

found that the ERISA framework was “[f]ar from suggesting that one plan document must

contain all the legally relevant terms and language” and “clearly contemplates multiple relevant

documents.” Id. at 433–34. Relying on pre-Amara precedent in the majority of its sister circuits,

the court held that “the district court properly considered the Plan document, the Summary Plan

Description, and the Policy Document to determine the appropriate standard of review to apply

in [the] case.” Id. at 434 (citing pre-Amara cases from the Fifth, Sixth, Seventh, Eighth, Ninth,

Tenth, and Eleventh Circuits that “have also generally concluded that multiple plan documents

are legally relevant”). In reviewing all three plan documents, the court easily concluded that the

language of the Plan document, which was echoed in the SPD, gave the requisite discretionary

authority to the defendant to establish that the Firestone deferential standard of review applied.

Id. at 434–35. Because the court verified that the language in the SPD was not inconsistent with

the plan document, nor did it create terms not reflected in the plan document, Pettaway had no

reason to apply Amara.

       If the plan document itself is not available to validate statements in the SPD, unlike the

circumstances in Pettaway, Amara suggests that reliance on language in the SPD alone in denial

of benefits claims may be unwarranted. See McCravy v. Metro. Life Ins. Co., 690 F.3d 176, 182

n.5 (4th Cir. 2012) (finding that, where “only the SPD, and not the plan itself, was before the

district court and before [the court of appeals]” and “[b]ecause [plaintiff’s] claims and



                                               15
[defendant’s] defenses depend[ed] upon the contents of the plan, their resolution on remand

[would] require the actual plan documents.”); see also Moffett v. Prudential Life Ins. Co. of Am.,

Nos. 09-cv-1915 & 11-cv-454 (RLW), 2012 WL 5989931, at *3 (D.D.C. Nov. 30, 2012)

(dismissing plaintiffs’ reliance on Amara but acknowledging that, although not the issue before

the court in that case, Amara could give rise to “a credible issue as to whether certain terms in

the summary plan documents are terms that the Court can ‘enforce’ within the meaning of §

1132(a)(1)(B)”).

       In Eugene S. v. Horizon Blue Cross Blue Shield of N.J., the Tenth Circuit interpreted

Amara as offering either one of two propositions: “(1) the terms of the SPD are not enforceable

when they conflict with governing plan documents, or (2) the SPD cannot create terms that are

not also authorized by, or reflected in, governing plan documents.” 663 F.3d 1124, 1131 (10th

Cir. 2011). The court did not apply either of its interpretations, however, because it concluded

that, based on clear language in the SPD, the SPD was the plan. Id. Only after a district court

concludes that an SPD is part of the underlying plan, the court held, can it rely on language of

the SPD. Id. There, the court was satisfied that the SPD was a sufficient basis to establish

deferential review of the insurance company’s decision to deny benefits under the plan because

“the language in the SPD [was] also the language of the [plan].” Id. at 1132. In addition to

relying on the fact that the SPD contained the plan language, the court found no need to review

absent plan documents because the plaintiff never asked for them during discovery and the

defendant affirmatively maintained that the only missing plan document “had no bearing on the

discretion afforded to [defendant].” Id.

       At the other end of the spectrum, a district court in the Second Circuit recently held that

where an SPD expressly stated that it was not part of a plan, and language granting discretionary



                                               16
authority was found in the SPD but not the plan, the attempted grant of discretion was

ineffective. Durham v. Prudential Ins. Co. of Am., 890 F. Supp. 2d 390, 395 (S.D.N.Y. 2012).

One month after Durham, Magistrate Judge Cheryl Pollak recommended a similar conclusion as

to the applicable standard of review when there is a clear grant of discretion in an expressly un-

incorporated SPD but ambiguous language in the plan document, summarizing her extensive

analysis as follows:

        Simply put, the SPD, which was explicitly not included as part of the Plan,
        demonstrates that Prudential [who drafted the plan documents] knew how to draft
        the language necessary to confer discretionary authority to itself. Even though
        defendant urges the Court to look at the SPD simply for the purpose of
        illuminating the drafter’s intent, such an interpretation would elevate the SPD
        language above that of the Plan itself—something the Amara Court found to be
        contrary to the purpose of the SPD as set forth in ERISA.

Hamill v. Prudential Ins. Co. of Am., No. 11-cv-1464 (SLT), 2012 WL 6757211, at *9 (E.D.N.Y.

Sept. 28, 2012). In Hamill, the SPD “expressly stat[ed] (in large print) that ‘[t]he Summary Plan

Description is not part of the [official plan documents].’”                    Id. at *5 (quoting the SPD)

(distinguishing the facts of the case with those in Eugene). See Sullivan v. Prudential Ins. Co. of

Am., No. 2:12-cv-01173-GEB-DAD, 2013 WL 1281861, at *1–2 (E.D. Cal. Mar. 25, 2013)

(holding that a de novo standard of review applied to the ERISA denial of benefits claim because

the defendants could not “point to any other language in the plan documents imbuing the

administrator with discretion” other than that found in the expressly unincorporated SPD).

        Here, the language of the SPD places this Court in uncharted waters. The prefatory

disclaimer in the SPD, AR 167, prevents this Court from adopting the course of action in

Eugene.      The disclaimer clearly provides that it is not the verbatim language of the Plan. 7




7
 In coincidental accordance with Amara, the SPD provides that the benefits described therein are controlled by the
underlying Plan documents.

                                                        17
Unlike the SPDs in Durham, Hamill, and Sullivan, however, the language does not go so far as

to expressly un-incorporate the SPD from the Plan.

       Aetna relies on only the terms of the SPD when arguing that a discretionary standard of

review applies, see Def.’s Mem. at 6–10, and in its defense of Zalduondo’s denial of benefits

claims, id. at 6–12. The administrative record includes the ASA between WPP Group and

Aetna; however, Aetna makes no attempt—even in its reply to Zalduondo’s opposition—to rely

on the ASA. Aetna’s motion contains a singular reference to the ASA, pointing to the contract

as evidence that the Plan is self-funded by WPP Group. Def.’s SUMF ¶ 5. Because the Court

previously denied discovery of the Plan document itself, it will not go so far, at this time, as

declaring that a de novo standard of review applies to the § 1132(a)(1)(B) claims.

       This Court may eventually rely on the terms in the SPD, as the court did in Pettaway, but

only after the SPD and the official Plan document(s) are before the Court so that the parties may

argue, and so that the Court may determine, whether the Firestone discretionary standard of

review applies and whether Zalduondo was inappropriately denied benefits under the terms of

the Plan. Thus, the Court will deny Aetna’s motion for summary judgment and instruct Aetna to

produce the Plan document(s) no later than 14 days from the date of this opinion. This course of

action best complies with Amara, which, in light of persuasive interpretations thereof in a

number of other circuits, this Court reads as providing that it cannot enforce the terms of the SPD

alone unless it is satisfied that the SPD terms relevant to this matter are authorized by, or not

inconsistent with, the Plan.

IV.    CONCLUSION

       For the foregoing reasons, Aetna’s motion for summary judgment is denied without

prejudice. Aetna must produce the official Plan document(s) no later than 14 days from the date



                                                18
of this opinion. The parties should file any summary judgment motions no later than 21 days

after the Plan documents are filed, with oppositions and replies filed in accordance with the

Court’s local rules.

       A separate order consistent with this memorandum opinion shall issue this date.

       Signed by Royce C. Lamberth, Chief Judge, on April 25, 2013.




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