                                                                    FILED
                                                        United States Court of Appeals
                                   PUBLISH                      Tenth Circuit

                 UNITED STATES COURT OF APPEALS                 July 24, 2020

                                                            Christopher M. Wolpert
                       FOR THE TENTH CIRCUIT                    Clerk of Court
                  ______________________________________

LYN M.; DAVID M., as Legal
Guardians of L.M., a minor,

        Plaintiffs - Appellants,

v.                                                   No. 18-4098

PREMERA BLUE CROSS;
MICROSOFT CORPORATION
WELFARE PLAN,

        Defendants - Appellees.
                 ______________________________________

              Appeal from the United States District Court
                        for the District of Utah
                     (D.C. No. 2:17-CV-01152-BSJ)
                 ______________________________________

Brian S. King (Nediha Hadzikadunic and Brent J. Newton, with him on the
briefs), Brian S. King, PC, Salt Lake City, Utah for Plaintiffs - Appellants.

Gwendolyn C. Payton, Kilpatrick Townsend & Stockton LLP, Seattle,
Washington (John R. Neeleman, Kilpatrick Townsend & Stockton LLP,
Seattle, Washington, and Adam H. Charnes, Kilpatrick Townsend &
Stockton LLP, Dallas, Texas, with her on the brief), for Defendants -
Appellees.
                 ______________________________________

Before LUCERO, BACHARACH, and EID, Circuit Judges.
              ______________________________________

BACHARACH, Circuit Judge.
            ______________________________________
        The parents of a teenage girl (L.M.) sued Premera Blue Cross under

the Employee Retirement Income Security Act (ERISA), claiming improper

denial of medical benefits. The district court granted summary judgment to

Premera, and the parents appeal. We conclude that the district court erred

by

            applying the arbitrary-and-capricious standard and

            concluding that Premera had properly applied its criteria for
             medical necessity.

Given these conclusions, we reverse and remand to the district court for de

novo reevaluation of the parents’ claim.

I.      The parents unsuccessfully sought reimbursement of L.M.’s
        residential treatment at Eva Carlston Academy.

        L.M. has experienced mental illness since she was a young girl. At

various times, her symptoms have included suicidal ideation, a suicide

attempt, and self-harm. She has also struggled with focus, motivation, and

school attendance, requiring her to attend therapy throughout most of her

life.

        L.M. was eventually placed in Eva Carlston Academy, where she

obtained long-term psychiatric residential treatment. For this treatment, the

parents submitted a claim to Premera under the ERISA plan’s coverage for

psychiatric residential treatment.

        Premera denied the claim ten days into L.M.’s stay. But Premera

agreed to cover the first eleven days of L.M.’s treatment, explaining the


                                       2
temporary coverage as a courtesy. The parents appealed the denial of

subsequent coverage, and Premera affirmed the denial based on a medical

opinion by Dr. Paul Hartman.

      The parents filed a claim for reimbursement of over $80,000 in out-

of-pocket expenses for L.M.’s residential treatment at Eva Carlston

Academy. Both parties moved for summary judgment, and the district court

granted summary judgment to Premera based on two conclusions. First, the

court concluded that Premera’s decision was subject to the arbitrary-and-

capricious standard of review. Second, the court concluded that Premera

had not acted arbitrarily or capriciously in determining that L.M.’s

residential treatment was medically unnecessary.

II.   We must apply both the ordinary summary-judgment standard
      and the standard for liability under ERISA.

      We engage in de novo review of a district court’s grant of summary

judgment, using the same standard that applied in district court. LaAsmar

v. Phelps Dodge Corp. Life, Accidental Death & Dismemberment &

Dependent Life Ins. Plan, 605 F.3d 789, 795–96 (10th Cir. 2010). As the

movant, Premera bore the burden to show (1) the absence of a genuine

issue of material fact and (2) an entitlement to judgment as a matter of law.

Owings v. United of Omaha Life Ins. Co., 873 F.3d 1206, 1212 (10th Cir.

2017). But the district court had to apply this dual burden consistently with

ERISA, which contains “a distinct standard of review” for plan



                                      3
administrators’ 1 decisions. Graham v. Hartford Life & Accident Ins. Co.,

501 F.3d 1153, 1155 n.1 (10th Cir. 2007); see LaAsmar, 605 F.3d at 796

(stating that when reviewing a grant of summary judgment on an ERISA

claim, the court of appeals must first determine the standard governing the

insurer ’s denial of benefits).

       Under ERISA, courts ordinarily conduct de novo review of a plan

administrator ’s decision to deny benefits. Firestone Tire & Rubber Co. v.

Bruch, 489 U.S. 101, 115 (1989). But if a plan administrator enjoys

discretionary authority under the plan, we apply a deferential standard,

affirming the decision unless it is arbitrary and capricious. LaAsmar, 605

F.3d at 796.

III.   The court must engage in de novo review of the denial of benefits
       because members lacked notice of the plan administrator’s
       discretionary authority.

       The plan administrator claims that it provided members with notice

of discretionary authority in a document called the “Plan Instrument.”

Although the Plan Instrument creates discretionary authority, 2 the members



1
      The term “plan administrator” could arguably refer to either
Microsoft (the ultimate plan administrator) or Premera (the delegated plan
administrator). This distinction is irrelevant to our analysis, so we refer
collectively to Premera and Microsoft as the plan administrator.
2
       The Plan Instrument states:

       The Plan Administrator shall have all powers necessary or
       appropriate to carry out its duties, including, without limitation,


                                       4
had no way of knowing that the Plan Instrument even existed. 3 Because

members lacked notice of the Plan Instrument, it does not trigger arbitrary-

and-capricious review.

      ERISA requires plan administrators to enable “beneficiaries to learn

their rights and obligations at any time.” Curtiss-Wright Corp. v.

Schoonejongen, 514 U.S. 73, 83 (1995). To comply with this requirement,


      the sole discretionary authority to . . . interpret the provisions of
      the Plan and the facts and circumstances of claims for benefits
      . . . . Benefits under this Plan will be paid only if the Plan
      Administrator decides in his discretion that the claimant is
      entitled to them.

Appellants’ App’x vol. 1, at 64–65.
3
      The dissent contends that the parents are relying on a lack of notice
based on the plan administrator ’s failure to distribute the Plan Instrument
rather than a failure to provide notice about the Plan Instrument’s
existence. The dissent’s contention blurs two distinct arguments. The
parents first argue that the plan administrator failed to systematically
distribute the Plan. But the parents also argue that the plan administrator
failed to notify participants of the Plan Instrument’s existence:

      Nothing in the Record demonstrates participants in the Plan even
      knew [the Plan Instrument] existed. Consequently, they were not
      provided fair notice of the limited ability they would have to
      obtain meaningful substantive review in litigation of any denied
      claims.

Appellants’ Opening Br. at 32. The parents elsewhere point out that “[a]
document may contain discretionary authority language but if it was never
disclosed to Plan participants and beneficiaries, it cannot form the basis
for a deferential standard of review.” Id. at 36. The parents are thus
arguing in part that they lacked notice of discretionary authority because of
the plan administrator ’s failure to disclose the Plan Instrument’s existence.




                                       5
plan administrators must create written plan documents and offer members

an opportunity to examine those documents to “determine exactly what

[their] rights and obligations are under the plan.” Id. (quoting H.R. Rep.

No. 93-1280, at 297 (1974), reprinted in U.S.C.C.A.N. 4639, 5077, 5078).

Given the members’ right to examine the documents, the plan administrator

must make the documents “available for examination by any plan

participant or beneficiary.” 29 U.S.C. § 1024(b)(2).

      To exercise this right, members must clearly identify whatever they

want to examine. Moothart v. Bell, 21 F.3d 1499, 1503 (10th Cir. 1994). Of

course, no member could clearly identify a document that the plan

administrator has kept secret. So ERISA’s procedure for inspection of plan

documents assumes notice to members.

      The need for notice is especially compelling for documents reserving

discretionary authority to the plan administrator:

      It is critical that employees understand the broad range of a plan
      administrator ’s authority because of the impact that this
      information can have on employees’ own decisions. For instance,
      as the Seventh Circuit has noted, employees may choose a
      particular employer based on their understanding of the
      insurance benefits provided by that employer, including whether
      any award of benefits is subject to a plan administrator ’s
      discretionary decision-making authority.

Cosey v. Prudential Ins. Co. of Am., 735 F.3d 161, 167 (4th Cir. 2013); see

also Fritcher v. Health Care Serv. Corp., 301 F.3d 811, 816 (7th Cir. 2002)

(“Without . . . notice of the employer ’s intention ‘to reserve a broad,



                                       6
unchanneled discretion to deny claims,’ the employee cannot make

informed choices about his benefits, such as the decision as to whether he

should supplement his ERISA plan with other forms of insurance.”)

(quoting Herzberger v. Standard Ins. Co., 205 F.3d 327, 333 (7th Cir.

2000)).

     Notice requires the plan administrator to disclose its discretionary

authority or the existence of a document with information about the

discretionary authority. 4 Without either form of notice, members cannot be

bound by a reservation of discretionary authority inserted into some secret

document locked away by the plan administrator. See Member Servs. Life

Ins. Co. v. Am. Nat. Bank & Tr. Co. of Sapulpa, 130 F.3d 950, 955 (10th

Cir. 1997) (noting that a plan member “could not be bound to terms of [a]

policy of which he had no notice” (internal quotation marks omitted))

(quoting Bartlett v. Martin Marietta Operations Support, Inc. Life Ins.

Plan, 38 F.3d 514, 517 (10th Cir. 1994)); see also Stephanie C. v. Blue

Cross Blue Shield of Mass. HMO Blue, Inc., 813 F.3d 420, 428–29 (1st Cir.

2016) (holding that under ERISA, an agreement involving the participating

employers could not be used against beneficiaries who lacked notice of the



4
      The dissent argues that we are requiring notice of other documents
affecting the scope of judicial review. But we aren’t expressing an opinion
on the need for notice as to other plan documents. We conclude only that a
plan administrator must provide notice of documents reserving
discretionary authority.

                                     7
agreement). A plan administrator could otherwise retain discretionary

authority through a plan document without members having any reason to

know of the document’s existence:

     An employer should not be allowed to get credit with its
     employees for having an ERISA plan that confers solid rights on
     them and later, when an employee seeks to enforce the right, pull
     a discretionary judicial review rabbit out of his hat. The
     employees are entitled to know what they’re getting into, and so
     if the employer is going to reserve a broad, unchanneled
     discretion to deny claims, the employees should be told about
     this, and told clearly.

Herzberger v. Standard Ins. Co., 205 F.3d 327, 332–33 (7th Cir. 2000). 5

     Premera didn’t disclose the Plan Instrument or tell members anything

that would have clued them in to the existence of this document. Instead,

Premera supplied a summary plan description, which members would

ordinarily regard as their primary source of information about the plan. See



5
      The dissent argues that we have misapplied Herzberger, stating that
there the court held that where discretion is reserved, the language
reserving that authority must be clear. See Herzberger, 205 F.3d at 332. By
contrast, the dissent contends, we are opining on the requirement for
employers to provide notice of a plan administrator ’s reservation of
discretionary authority. Dissent at 4, 4 n.1, 6 n.3. But we’ve simply applied
Herzberger’s command for clarity when the plan administrator asserts
discretionary authority in a plan document. See Diaz v. Prudential Ins. Co.
of Am., 424 F.3d 635, 637 (7th Cir. 2005).

      The plan administrator either disclosed the Plan Instrument’s
existence or it didn’t. If it didn’t, how could members have notice of the
plan administrator ’s reservation of discretionary authority? In our view,
members lack notice when the plan administrator reserves discretionary
authority in a private document without disclosing the document’s
existence. Members cannot obtain notice from secret documents.

                                      8
Heidgerd v. Olin Corp., 906 F.2d 903, 907 (2d Cir. 1990) (“[ERISA]

contemplates that the summary [plan description] will be an employee’s

primary source of information regarding employment benefits, and

employees are entitled to rely on the descriptions contained in the

summary.”). But the summary plan description said nothing about the

existence of the Plan Instrument or any other plan document reserving

discretion to the plan administrator.

      The summary plan description did say: “You may ask to examine or

receive free copies of all pertinent plan documents, records, and other

information relevant to your claim by asking Premera.” Appellants’ App’x

vol. 4, at 950. In context, however, this sentence did not suggest the

existence of another document affecting judicial review. The sentence

appeared in a section addressing Premera’s internal review—not in a

section addressing judicial review over Premera’s decisions. Id. at 949–50.

And any number of documents might be “pertinent” or “relevant” to a

member ’s claim. Id. at 950. So even if members had discovered this

sentence, they would have lacked any reason to suspect the existence of

other documents involving the scope of judicial review.

      The summary plan description did discuss judicial review in another

section entitled “Limits on your right to judicial review.” Id. at 953. But

that section said nothing about




                                        9
           the existence of discretionary authority or other plan
            documents or

           the possibility that undistributed, inspectable documents could
            affect the scope of judicial review. 6

So Premera did not adequately notify the parents of this possible limit on

the scope of judicial review. Because the parents “could not be bound to

terms of [a] policy of which [they] had no notice,” the Plan Instrument

does not affect the standard for reviewing Premera’s decision. Member

Servs. Life Ins. Co. v. Am. Nat. Bank & Tr. Co. of Sapulpa, 130 F.3d 950,

955 (10th Cir. 1997) (internal quotation marks omitted) (quoting Bartlett v.

Martin Marietta Operations Support, Inc. Life Ins. Plan, 38 F.3d 514, 517

(10th Cir. 1994)). 7


6
      The section addressing judicial review states in its entirety:

      Limits on your right to judicial review

      You must follow the appeals process described above through the
      decision on the appeal before taking action in any other forum
      regarding a claim for benefits under the plan. Any legal action
      initiated under the plan must be brought no later than one year
      following the adverse determination on the appeal. This one-year
      limitations period on claims for benefits applies in any forum
      where you initiate legal action. If a legal action is not filed
      within this period, your benefit claim is deemed permanently
      waived and barred.

Appellants’ App’x vol. 4, at 953.
7
      The dissent asserts that we are establishing a “back door”
requirement for distribution by insisting that plan administrators notify
members of documents addressing discretionary authority. Dissent at 5–7.


                                      10
      Premera has not shown that it provided notice of its reservation of

discretionary authority. The district court thus erred in applying the

arbitrary-and-capricious standard of review to the denial of benefits; the

court should have instead engaged in de novo review. See Rodríguez-López

v. Triple-S Vida, Inc., 850 F.3d 14, 20 (1st Cir. 2017) (stating that the

arbitrary-and-capricious standard applies only “[i]f the plan gives the plan

participant or covered beneficiary adequate notice of [a reservation of

discretionary authority]”). 8

IV.   The district court also erred by concluding that Premera had
      correctly applied the criteria for medical necessity.

      The district court erred not only in applying the arbitrary-and-

capricious standard, but also in misinterpreting Premera’s letter denying

relief to the parents in their administrative appeal. This misinterpretation




We respectfully disagree. A notice requirement need not include
distribution. Of course, awareness of documents bearing on the standard of
review might lead members to request those documents. But the possibility
that members might request documents does not turn the need for notice
into a distribution requirement.
8
      The parents also urge de novo review based on (1) the absence of the
Plan Instrument in the administrative record and (2) the alleged violation
of procedural requirements. We need not address these arguments because
the failure to provide notice of the Plan Instrument independently requires
de novo review.




                                      11
of the letter would require reversal even if the arbitrary-and-capricious

standard had otherwise applied. 9

      The district court concluded that Premera had properly assessed the

issue of medical necessity based on the summary plan description and a

separate medical policy (entitled “Behavioral Health: Psychiatric

Residential Treatment”). In reaching this conclusion, the court pointed out

that the medical policy “articulates the criteria to be used when assessing

the need for psychiatric residential treatment.” Appellants’ App’x vol. 1,

at 235. All parties agree that the determination of medical necessity must

be based on both the summary plan description’s general criteria and the

medical policy’s specific criteria.

      But Premera did not apply the medical policy’s specific criteria when

deciding the parents’ administrative appeal. In the administrative appeal,

Premera relied solely on the summary plan description’s general criteria.

Premera thus failed to consider the medical policy’s specific criteria, such


9
     This case presents two independent reasons for reversal. We have
concluded that the district court

           should have applied de novo review and

           erred in concluding that Premera had correctly applied the
            criteria for medical necessity.

The dissent would affirm the district court but expresses disagreement only
with the first reason. The dissent doesn’t say whether it agrees or disagrees
with our second, independent ground for reversal. The second reason alone
would require reversal.


                                      12
as significant impairment of “functioning or behavioral dyscontrol . . . at a

severity that requires 24/7 containment and treatment.” Id. vol. 4, at 885.

      Premera insists that it applied the medical policy, but Premera is

mistaken. In the administrative appeal, Premera told the parents that it was

denying the claim based “on the plan, which specifically excludes benefits

for services or supplies that are not medically necessary.” Id. at 824

(emphasis added). By itself, the phrase “on the plan” could be ambiguous,

referring to the summary plan description, the medical policy, or both. But

any ambiguity vanishes in a section entitled “Plan Language,” which

states: “The specific plan provisions for which the denial of this appeal is

based on is as follows . . . .” Id. at 825. What follows is the summary plan

description’s definition of what is “medically necessary.” Id. Nowhere in

this section (or the rest of the letter) does Premera discuss the medical

policy.

      Premera took a similar approach in corresponding with Dr. Paul

Hartman, a physician certified in child and adolescent psychiatry. Dr.

Hartman was asked to review the denial of benefits and opine about the

necessity of residential treatment. To facilitate this review, Premera sent

Dr. Hartman a copy of the medical policy but told him that it “should not

be used as the basis for the determination of this review.” Appellants’

App’x vol. 2, at 423. Dr. Hartman complied, basing his opinion on the

summary plan description and disregarding the medical policy. Id.


                                     13
at 422-23. Premera thus relied on a medical opinion that had disregarded

the medical policy’s specific criteria. 10

      Premera’s letters show a failure to apply the medical policy’s

criteria. By failing to use the medical policy’s criteria, Premera acted

arbitrarily and capriciously. See Owings v. United of Omaha Life Ins. Co.,

873 F.3d 1206, 1212–13 (10th Cir. 2017) (holding that a plan administrator

acted arbitrarily and capriciously by misinterpreting and misapplying the

plan document’s definition of a “disability”).

V.    We remand for the district court to engage in de novo review of
      Premera’s decision.

      We have concluded that (1) the district court erred in adopting a

deferential standard of review and (2) Premera applied the wrong criteria

in denying the parents’ administrative appeal. Given these conclusions, we

must determine the appropriate remedy. We can

           remand to the plan administrator for further administrative
            review,

           remand to the district court to conduct de novo review of the
            plan administrator ’s decision, or



10
      At oral argument, Premera framed its instructions to Dr. Hartman
differently. See Oral Arg. at 23:52–24:09 (“They [Premera] ask [Dr.
Hartman] . . . is it correct under the Medical Policy and the Plan, what we
have done? He says yes.” (emphasis added)). Premera had actually told Dr.
Hartman that “[t]he medical policy . . . should not be used as the basis for
the determination of [his] review.” Appellants’ App’x vol. 2, at 423.
Premera did ask Dr. Hartman to review the medical policy, but only to
compare it to the general standards of care. Id.

                                       14
           apply de novo review in the first instance.

See Rasenack ex rel. Tribolet v. AIG Life Ins. Co., 585 F.3d 1311, 1327

(10th Cir. 2009) (considering whether to remand to the plan administrator

or to the district court); DeGrado v. Jefferson Pilot Fin. Ins. Co., 451 F.3d

1161, 1175–76 (10th Cir. 2006) (considering whether to remand to the plan

administrator or to award benefits).

      The parents seek a remand for the district court to conduct de novo

review of Premera’s decision. Oral Arg. at 30:35–30:55. We agree that this

is the appropriate remedy. See Rasenack, 585 F.3d at 1327 (remanding to

the district court instead of the plan administrator when the plan

administrator “had its chance to exercise its discretion and it failed to do

so in accordance with the clear guidelines of the Plan and ERISA”). This

remedy maximizes the district court’s discretion to decide the next steps. 11


11
      To aid the district court on remand, we note two potential evidentiary
issues.

     First, we have discussed the instructions given to Dr. Hartman as
evidence of Premera’s sole reliance on the summary plan description’s
general criteria. But we do not express an opinion on the persuasiveness of
Dr. Hartman’s report under the medical policy’s criteria.

      Second, the district court has noted that

           L.M. dropped out of school and participated instead in an
            alternative “homebound” schooling program and

           her “participation in [the homebound] program ultimately
            stopped as well.” Appellant’s App’x vol. 1, at 224.


                                       15
      Premera urges us instead to apply de novo review in the first

instance. In our view, however, the district court should first apply de novo

review. When the district court has not reached a required issue, we

typically permit that court to tackle the issue in the first instance.

Greystone Constr., Inc. v. Nat’l Fire & Marine Ins. Co., 661 F.3d 1272,

1290 (10th Cir. 2011). This approach is particularly apt here given the fact-

intensive nature of the inquiry. See Rasenack ex rel. Tribolet v. AIG Life

Ins. Co., 585 F.3d 1311, 1327 (10th Cir. 2009) (remanding to the district

court and recognizing its role in reviewing “complex medical questions or

issues regarding the credibility of medical experts” (internal quotation

mark omitted)) (quoting Hall v. UNUM Life Ins. Co. of Am., 300 F.3d 1197,

1203 (10th Cir. 2002)); see also Seman v. FMC Corp. Ret. Plan for Hourly

Emps., 334 F.3d 728, 733–34 (8th Cir. 2003). 12



But the external reviewer wrote that L.M. “was attending” the homebound
program, implying that she had not dropped out. Id. vol. 4, at 1065. The
reviewer may have based this statement on a medical record created by Eva
Carlston Academy. See Id. vol. 5, at 1143, 1145. We express no opinion on
the possibility of a mistake in the external review or the significance of
this possible mistake.
12
      In Seman, the Eighth Circuit stated:

             Having determined that [the plan administrator ’s] denial of
      [the member ’s] application for benefits should be reviewed de
      novo, we conclude that such review should be conducted in the
      first instance by the district court, rather than by this court. We
      believe that remanding this case to the district court is the wiser


                                       16
     In conducting this fact-intensive inquiry, the district court can

explore options unavailable to us, such as conducting a bench trial or

permitting additional evidence. See Hall, 300 F.3d at 1202 (holding that

district courts may admit or solicit new evidence “when circumstances

clearly establish that additional evidence is necessary to conduct an

adequate de novo review of the benefit decision” (internal quotation marks

omitted)) (quoting Quesinberry v. Life Ins. Co. of N. Am., 987 F.2d 1017,

1025 (4th Cir. 1993) (en banc)); see also McKeehan v. Cigna Life Ins. Co.,

344 F.3d 789, 793 (8th Cir. 2003). 13 We thus remand for the district court

to conduct de novo review in the first instance.




     approach because the review of the plan administrator ’s denial
     of benefits is a highly fact-intensive inquiry which may, in the
     district court’s sound discretion, be based on evidence beyond
     that presented to the administrator.

334 F.3d at 733–34.
13
     In McKeehan, the court explained:

           When the de novo standard of review applies, a district
     court has more discretion to allow the parties to introduce
     evidence in addition to that submitted to the plan decision-
     maker. In addition, in conducting de novo review, the district
     court may wish to make findings of fact after a bench trial or on
     a stipulated fact record, rather than conducting the summary
     judgment review that is customary when applying the abuse-of-
     discretion standard.

344 F.3d at 793 (citation omitted).

                                      17
                                   * * *

     We reverse the district court’s grant of summary judgment to Premera

and remand for de novo reconsideration of the parents’ claim.




                                    18
Lyn M., et al. v. Premera Blue Cross, et al., No. 18-4098

EID, J., dissenting.

       Today the majority imposes a new duty on plan administrators to notify members

“that undistributed, inspectable documents could affect the scope of judicial review.”

Maj. op. at 10. I disagree with this holding. This new duty placed on plan

administrators—to specifically inform members that documents exist that could affect

judicial review—is supported neither by the language of ERISA nor our caselaw; it is of

the majority’s own making. Here, the summary plan description (“SPD”) states that

members “may ask to examine or receive free copies of all pertinent plan documents,

records, and other information relevant to your claim by asking [the plan administrator].”

This is sufficient to satisfy the only relevant duty imposed by ERISA here, which is to

make a plan “available,” and to furnish documents upon request of a plan participant.

See 29 U.S.C. § 1024(b)(2), (4). As the majority plainly concedes, the Plan Instrument in

this case states that the plan administrator has the “sole discretionary authority” regarding

claims. Maj. op. at 4 & n.2. Accordingly, we must affirm the administrator’s decision

unless it is arbitrary and capricious. See Eugene S. v. Horizon Blue Cross Blue Shield of

N.J., 663 F.3d 1124, 1130 (10th Cir. 2011). The majority instead remands the case to the

district court for application of de novo review. For this reason, I respectfully dissent.

       There is no statutory duty under ERISA to specifically notify participants of

documents that may affect the judicial standard of review of their claims. Rather, ERISA

only requires a plan be “ma[d]e available.” 29 U.S.C. § 1024(b)(2); see Curtiss-Wright
Corp. v. Schoonejongen, 514 U.S. 73, 84 (1995) (“ERISA requires that every plan

administrator make available for inspection . . . all currently operative, governing plan

documents.” (citing 29 U.S.C. § 1024(b)(2))). Here, the SPD informed plan participants

that: “You may ask to examine or receive free copies of all pertinent plan documents,

records, and other information relevant to your claim . . . .” Maj. op. at 9. This language,

on its face, puts plan participants on notice that other documents could exist and be

“relevant to [their] claim,” and therefore satisfies the dictates of ERISA.

       The majority rejects this approach, however, explaining instead that “Premera

didn’t disclose the Plan Instrument . . . .” Id. at 8; see also id. at 7 (suggesting that the

Plan Instrument was a “secret document locked away by the plan administrator”); id. at 8

(suggesting that plan participants lacked notice because “Premera didn’t . . . tell members

anything that would have clued them in to the existence of this document.”). Indeed, the

majority finds that the above-quoted language from the SPD, explaining that “all

pertinent documents” may be requested by a plan participant, is too broad because it fails

to specifically “suggest the existence of another document affecting judicial review.” Id.

at 9. As the majority puts it, plan participants must be notified that “undistributed,

inspectable documents could affect the scope of judicial review.” Id. at 10 (emphasis

added). Thus, the majority’s approach requires a plan administrator to not only notify

members that other documents may exist that might be relevant to their claims, but also

to specifically notify them that those other documents may impact review of their claim

in the courts.



                                               2
       The fundamental problem with the majority’s opinion is that its new notification

requirement is not supported by ERISA or our caselaw. The majority cites no statutory

language, in ERISA or elsewhere, that imposes a duty on plan administrators to

specifically notify members that documents exist that might affect judicial review. The

majority cannot cite to a statutory requirement in ERISA’s text for this proposition

because one does not exist. Under ERISA’s disclosure and reporting requirements

provision, the statute requires the plan administrator “furnish[]” “(1) a summary plan

description,” and “(2) the information described in [section 1021(f)], and sections

1024(b)(3) and 1025(a) and (c) of this title.” See 29 U.S.C. § 1021(a). ERISA contains a

list of the required elements to craft a compliant SPD, but nowhere does that list include

notifying participants of the applicable standard of review of their claims. See 29 U.S.C.

§ 1022 (listing requirements for an ERISA-compliant SPD). And the other statutorily-

required disclosures referenced above pertain to the plan’s funding and financial data,

§§ 1021(f), 1024(b)(3), and annual or quarterly benefit statements of an individual’s plan

assets, § 1025(a), (c). Today, the majority adds an additional requirement to a plan

administrator’s disclosure duties under ERISA. Compare 29 U.S.C. § 1021(a), with Maj.

op. at 3–11.

       The majority cites only one Tenth Circuit case for this notification requirement—

Member Services Life Insurance Co. v. American National Bank & Trust Co. of

Sapulpa—which stands for the proposition that a plan member “could not be bound to

terms of [a] policy of which he had no notice.” 130 F.3d 950, 955 (10th Cir. 1997)

(quoting Bartlett v. Marietta Operations Support Life Ins., 38 F.3d 514, 517 (10th Cir.

                                             3
1994)); see Maj. op. at 7, 10. I have no quarrel with this general proposition of contract

law, nor with its application in Member Services, which found that a plan member could

not be retroactively bound by an amendment that occurred after expenses were incurred

and paid. But what I do disagree with is the leap from the proposition that members must

be notified that other relevant documents exist and are available upon request, to the very

specific requirement that they be notified those documents could affect judicial review.

In my view, Member Services simply cannot bear the weight the majority places on it.

       The majority’s reliance on out-of-circuit caselaw fares no better. For example, the

majority cites to Herzberger v. Standard Insurance Co., 205 F.3d 327, 332–33 (7th Cir.

2000), for the proposition that “if the employer is going to reserve a broad, unchanneled

discretion to deny claims, the employees should be told about this, and told clearly.”

Maj. op. at 8. But here, the majority confuses ERISA’s notification requirements

regarding the availability of pertinent documents with the Supreme Court’s judicially-

created standard for reserving discretionary authority under a plan.1 See Firestone Tire &

Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989); Eugene S., 663 F.3d at 1130–31

(discussing requirements for reserving discretionary review). There is no question that



       1
         The majority opinion exhibits the same confusion in citing Rodriguez-López v.
Triple-S Vida, Inc., 850 F.3d 14, 21 (1st Cir. 2017). Maj. op. at 11. Much like
Herzberger, 205 F.3d at 332, Rodriguez-López holds that where discretion is purportedly
reserved, the language reserving that authority must be clear. See Rodriguez-López, 850
F.3d at 21 (“A careful review of the language of the Plan leads us to conclude that it does
not reflect a clear grant of discretionary authority . . . .” (emphasis added)). The case
does not stand for the proposition that a document must contain a specific reference to the
existence of another document affecting judicial review.

                                             4
the Plan Instrument in this case reserves discretionary authority under Eugene S.. Maj.

op. at 4 & n.2 (noting that “the Plan Instrument creates discretionary authority”); see also

Lyn M. v. Premera Blue Cross, 2018 WL 2336115 at *4 (D. Utah 2018) (unpublished)

(holding that the language, which states that the administrator has “sole discretionary

authority,” is sufficiently clear). The question in this case is whether notice of that

reservation of discretionary authority complied with ERISA, which, in my view, it did.

       Significantly, not even the appellants argued for the new notification requirement

the majority now imposes. The majority spends a good deal of time arguing that the

appellants did in fact contend that notice was lacking in this case. Maj. op. at 5-6 & n.3.

However, the appellants never argued that notice was insufficient due to lack of specific

language in the governing documents regarding judicial review. In other words, they

never argued that they did not receive notice because the plan language failed to state in

specific terms that there existed undistributed plan documents that could impact judicial

review—that is, the majority’s holding today. Instead, in each instance of mentioning

notice, the appellants argued that the plan documents failed to give notice because those

documents were not distributed.2 But there is no distribution requirement under ERISA.


       2
            The majority is correct that appellants label this subsection of their argument
using “fair notice” language, Maj. op. at 5 n.3, but the substance of the subsection that
follows makes clear their complaints about “notice” are reserved to the lack of
distribution. See Appellants’ Brief at 32–36; id. at 34 (making a document “available . . .
is not the same thing as stating the Plan Instrument was distributed to all participants
. . . .”); id. at 35 (“Thus, the ‘Plan Instrument’ was not routinely distributed to the
participants . . . of the Plan.”). The appellants are clearly focused on the failure to
distribute the Plan Instrument. They never make the argument that the SPD was required
to contain a specific notification of other documents with potential effects on judicial
review.
                                              5
See 29 U.S.C. § 1024(b)(2), (4). Whether an undistributed document may reserve

discretionary authority is an open question in this and other circuits.3 If we are to address

that question, however, we should do it head-on, rather than through the back door of

notification.




       3
         The First Circuit has come the closest to imposing a distribution requirement for
documents relating to judicial review. See Maj. op. at 7 (citing Stephanie C. v. Blue
Cross Blue Shield of Mass., 813 F.3d 420 (1st Cir. 2016)). However, there, the
undistributed document was not the governing plan instrument that explained the terms of
available benefits, but rather the premium account agreement that defined the relationship
between the employer and Blue Cross Blue Shield. Id. at 423, 427. Further, it was an
alternative holding, given the court declined deferential review because the language of
the Certificate (the governing plan instrument) was ambiguous and the account
agreement could not “cure” it. See id. at 427–29.
       The majority opinion also cites the Seventh Circuit’s decision in Herzberger, 205
F.3d at 332–33, twice for the proposition that undistributed documents cannot affect the
standard of review. Maj. op. at 7–8. It is true that Herzberger explains employees should
have adequate notice if “the plan administrator is to make a judgment largely insulated
from judicial review by reason of [their actions] being discretionary.” 205 F.3d at 332.
But first, as explained above, Herzberger is not about undistributed documents, it is about
unclear language; the issue before the court was whether the language noting the plan
administrator would pay benefit claims “upon proof (or satisfactory proof)” was
sufficiently discretionary as to overcome de novo review. Id. at 329. And second, the
Herzberger Court actually went so far as to draft suggested “safe harbor” language that,
if used, would defeat any claim for de novo review. Id. at 331. The holding was that
discretionary language, if used, must be clear.
       The Second Circuit distinguished Herzberger on just these grounds in Thurber v.
Aetna Life Insurance Co., 712 F.3d 654, 659 (2d Cir. 2013) (noting Herzberger “did not
in any way involve . . . a situation in which the plan’s language did unambiguously
provide for discretion, but the employee . . . had not received a copy of either
document”), abrogated on other grounds by Montanile v. Bd. of Trustees of Nat. Elevator
Indus. Health Benefit Plan, 577 U.S. ___, 136 S. Ct. 651 (2016). As Thurber concluded,
“the administrator of an ERISA plan has no obligation to ensure that participants receive
copies of the plan itself.” Id.

                                              6
       Of greatest concern is the fact that the majority’s newfound notification

requirement lacks a limiting principle. The logic of today’s opinion could require, for

example, specific notice of a document that might impact claims processing procedures,

or to cite another example, a document that might impact how coverage decisions are

made. Once specific notice of a document impacting judicial review is required, it is but

a short jump to requiring specific notice of documents impacting other participant rights.

The majority’s approach thus violates the fundamental tenet of ERISA to impose uniform

and clear duties upon plan administrators. See Aetna Health v. Davila, 542 U.S. 200, 208

(2004) (“The purpose of ERISA is to provide a uniform regulatory regime over employee

benefit plans.”).

       Because the plan administrator failed to discharge this newly-imposed duty to

specifically inform members that other documents could impact their right to judicial

review, the majority refuses to apply the Plan Instrument,4 which plainly states that the

plan administrator has the “sole discretionary authority” regarding claims. When a plan

administrator reserves such discretion, we must affirm its decision unless it is arbitrary

and capricious. Eugene S., 663 F.3d at 1130. The majority instead reverses the district


       4
         I would affirm the district court’s decision to allow supplementation of the
administrative record with the Plan Instrument on the ground that it implicates the
standard of review. Lyn M., 2018 WL 2336115, at *4 (citing Weeks v. Unum Grp., 585
F. Supp. 2d 1305, 1314 (D. Utah 2008)); Appellants’ Appendix v.1 at 229; see also
Waldoch v. Medtronic, Inc., 757 F.3d 822, 830 (8th Cir. 2014) (The “general rule [against
supplementing the record] is relaxed when evidence is admitted for the limited purpose of
determining the proper standard of review.” (citation omitted)); cf. Eugene S., 663 F.3d
at 1129 (holding supplementation of the record “is allowed for assessing dual-role
conflict of interest claims”).

                                              7
court’s decision upholding the administrator’s decision made in this case and remands for

application of de novo review.5 For this reason, I respectfully dissent from its opinion.




       5
         The majority contends this matter can be decided on “two independent” grounds,
and that “[t]he second reason alone”—that is, whether the appropriate criteria for medical
necessity criteria were applied—“would require reversal.” Maj. op. at 12 n.9. I disagree.
In my view, it is necessary to resolve the standard of review question before reaching the
merits.


                                             8
