236 F.3d 1 (D.C. Cir. 2001)
Jane G. Fitts, Appellantv.Federal National Mortgage Association and Unum Life Insurance Company of America, Appellees
No. 99-5327
United States Court of Appeals  FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 13, 2000Decided January 12, 2001

Appeal from the United States District Court  for the District of Columbia (No. 98cv00617)
John J. Witmeyer III argued the cause for appellant. With him on the briefs was David E. Schreiber.
M. Carolyn Cox argued the cause for appellee Federal  National Mortgage Association.  With her on the brief was  Craig Goldblatt.
Frank C. Morris, Jr. argued the cause for appellee Unum  Life Insurance Company of America.  With him on the brief  was Ann M. Courtney.
Before:  Edwards, Chief Judge, Rogers and Garland,  Circuit Judges.
Opinion for the court filed Per Curiam.

Per Curiam:

1
Jane G. Fitts sued her former employer and  the insurance company that administers claims under the  employer's long-term disability plan, alleging that they violated the Americans with Disabilities Act of 1990 (ADA) and the  Employee Retirement Income Security Act of 1974 (ERISA)  by terminating her disability benefits after 24 months.  The  district court dismissed Fitts' ADA counts and granted summary judgment against her on the ERISA count.  We affirm  the dismissal of the ADA counts on the ground that the longterm disability plan comes within the safe harbor provisions  of that statute.  Because we conclude that the district court  applied the wrong standard of review to the ERISA count,  however, we reverse the grant of summary judgment and  remand the case for further proceedings.


2
* Under its employee welfare benefit plan, the Federal National Mortgage Association ("Fannie Mae")1 offers its employees the opportunity to select from an array of benefits,  including a long-term disability insurance policy provided by  Unum Life Insurance Company of America.  In the event  that an employee insured under the policy later becomes  totally disabled, the policy pays a percentage of the employee's income until the age of 65.  The policy, however, places a  24-month cap on benefits for disabilities due to mental illness,  which it defines as "mental, emotional or nervous diseases or  disorders of any type."


3
Jane Fitts, an attorney, was employed by Fannie Mae from  1982 to 1995 and paid the required premiums for the longterm disability policy.  In 1995, Fitts became disabled by  bipolar disorder, an illness characterized by cycles of depressive and manic episodes.  See Am. Psychiatric Ass'n, Diagnostic & Statistical Manual of Mental Disorders 395 (4th ed.  text rev. 2000).  Fitts applied to Unum for benefits under the  policy, which Unum granted.  Because Unum classified her  disorder as a mental illness, however, it limited her benefits  to 24 months.  Fitts unsuccessfully protested Unum's decision, arguing that bipolar disorder is associated with changes  in the physical structure of the brain and often runs in  families, suggesting genetic causation.  Unum asserts that it  invited Fitts to submit additional medical information supporting her claims, but that she responded only with "conclusory" letters from her treating psychiatrist and two other  psychiatrists.  Fitts asserts that she signed a release permitting Unum to view her entire medical file, which contained  data supporting her claim.  Unum refused to alter its classification of bipolar disorder as a mental illness and ceased  paying Fitts benefits after 24 months.


4
Fitts sued both Unum and Fannie Mae, contending that the  termination of her benefits after 24 months violated Titles I  and III of the ADA, 42 U.S.C. §§ 12101-12213.  Title I  prohibits a covered employer from discriminating "against a  qualified individual with a disability because of the disability  of such individual in regard to ... [the] terms, conditions and  privileges of employment."  42 U.S.C. § 12112(a).  Title III  prohibits discrimination "on the basis of disability in the full  and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public  accommodation ...."  42 U.S.C. § 12182(a).  Fitts also  claimed that the termination of her benefits violated ERISA,  29 U.S.C. §§ 1001-1461, which entitles a participant or beneficiary of a covered plan "to recover benefits due to him under  the terms of his plan," 29 U.S.C. § 1132(a)(1)(B).2


5
Pursuant to Federal Rule of Civil Procedure 12(b)(6), the  district court dismissed Fitts' claim under Title I of the ADA  because, as a totally disabled individual, she was not a  "qualified individual with a disability" eligible to sue under  Title I.  Fitts v. Federal Nat'l Mortgage Ass'n, 44 F. Supp.  2d 317, 322-23 (D.D.C. 1999).  The court also dismissed Fitts'  claim under Title III of the ADA, finding that the long-term  disability policy was not a good or service provided by a  public accommodation and hence that neither Fannie Mae nor  Unum was subject to suit under that Title.  Id. at 324. Finally, the court granted Unum's motion for summary judgment on Fitts' ERISA claim, ruling that Unum had not acted  in an arbitrary and capricious manner in classifying bipolar  disorder as a mental illness.  Fitts v. Federal Nat'l Mortgage  Ass'n, 77 F. Supp. 2d 9, 24 (D.D.C. 1999).  We review both  the dismissal of the ADA claims and the grant of summary  judgment on the ERISA claim de novo.  See Systems Council  EM-3 v. AT&T Corp., 159 F.3d 1376, 1378 (D.C. Cir. 1998); Heller v. Fortis Benefits Ins. Co., 142 F.3d 487, 492 (D.C. Cir.  1998).

II

6
In EEOC v. Aramark Corp., 208 F.3d 266 (D.C. Cir. 2000),  plaintiffs challenged an employee benefit plan that provided  24 months of long-term disability benefits for persons with  disabilities caused "to any extent" by mental conditions, but a  longer benefit period for those with physical disabilities.  As  Fitts does here, the Aramark plaintiffs contended that the early termination of disability benefits violated Titles I and  III of the ADA.  The district court dismissed the Aramark  plaintiffs' claims for the same reasons relied upon by the  district court here.  On appeal, we declined to address the  district court's reasons, affirming instead on a different  ground--that the challenged plan was protected by the  ADA's safe harbor for bona fide employee benefit plans. Aramark, 208 F.3d at 268.  That provision, contained in ADA  § 501(c), states:


7
Subchapters I through III of this chapter and title IV of this Act shall not be construed to prohibit or restrict


8
(1) an insurer ... or any agent, or entity that administers benefit plans, or similar organizations from underwriting risks, classifying risks, or administering such risks that are based on or not inconsistent with State law;  or


9
(2) a person or organization covered by this chapter from establishing, sponsoring, observing or administering the terms of a bona fide benefit plan that are based on underwriting risks, classifying risks, or administering such risks that are based on or not inconsistent with State law;  or


10
(3) a person or organization covered by this chapter from establishing, sponsoring, observing or administering the terms of a bona fide benefit plan that is not subject to State laws that regulate insurance.


11
Paragraphs (1), (2), and (3) shall not be used as a subterfuge to evade the purposes of subchapter[s] I and III of this chapter.


12
42 U.S.C. § 12201(c).


13
The Aramark parties agreed that the benefit plan came  within the language of § 501(c)(3), because it was "bona fide  in that it exists and pays benefits," 208 F.3d at 269 (quoting  Public Employees Ret. Sys. of Ohio v. Betts, 492 U.S. 158, 166  (1989)), and because the preemption provisions of ERISA  rendered it "not subject to State laws that regulate insurance," id. (quoting 42 U.S.C. § 12201(c)(3)).  Plaintiffs argued, however, that the plan failed to qualify for safe harbor  because it was a "subterfuge."  Id. We disagreed, holding  that because Aramark's long-term disability benefit plan,  including the 24-month cap on mental disability benefits, had  been in place since 1982--long before the ADA's 1990 enactment--the 24-month benefit limit could not fall within  § 501(c)'s subterfuge exception to the safe harbor.  Aramark,  208 F.3d at 269-70.


14
At Fitts' request, her appeal was held in abeyance pending  the decision in Aramark.  The parties have fully briefed the  safe harbor issue, including the applicability of Aramark to  the instant case.  We conclude that Aramark controls here  and requires that we affirm the dismissal of Fitts' ADA  claims.


15
Like the plaintiffs in Aramark, Fitts does not dispute that  Fannie Mae's long-term disability plan, as implemented  through the Unum policy, comes within the language of  § 501(c)(3) as a bona fide benefit plan not subject to state law  because of ERISA preemption.  Fitts does contend that the  plan is a "subterfuge," but in light of Aramark that argument  is unavailing:  Fitts concedes that the 24-month cap on disability benefits for mental illness has been in place--without  modification--since at least 1985.  Although Fitts argues that  the intentional retention of the cap since the 1990 passage of  the ADA renders the subterfuge provision applicable, adoption of such a theory would eviscerate the rule announced in  Aramark.  Accordingly, we conclude that Fannie Mae falls  within the protection of the safe harbor provision of  § 501(c)(3).


16
Unum is likewise eligible for safe harbor protection, although as the insurer it is protected under § 501(c)(1) rather  than (c)(3).  Subsection (c)(1) requires both that the longterm disability plan not be a subterfuge to evade the purposes  of the ADA and that it not be "inconsistent with State law." The record contains an uncontested declaration that the  Unum policy was approved by the District of Columbia  Department of Insurance and Securities Regulation, J.A. at  30, and Fitts cites no District of Columbia case or statute  with which the plan is inconsistent.  Accordingly, we affirm the dismissal of appellant's ADA claims against both Fannie  Mae and Unum.

III

17
Under ERISA, a participant in or beneficiary of a covered  plan may sue "to recover benefits due to him under the terms  of his plan."  29 U.S.C. § 1132(a)(1)(B).  Fitts contends that  Unum and Fannie Mae improperly classified her disability as  mental rather than physical, and hence improperly terminated her long-term disability benefits after only 24 months. The district court concluded that the appropriate standard of  review for that classification was whether it was arbitrary and  capricious, determined that it was not, and granted summary  judgment for defendants.


18
In Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101  (1989), the Supreme Court held that a denial of benefits  challenged under ERISA § 1132(a)(1)(B) is to be reviewed  under a de novo standard--not under the more deferential  arbitrary and capricious 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.  Firestone's employee benefit  plan provided severance benefits for employees "if released  because of a reduction in work force or if ... physically or  mentally unable to perform [the] job."  Id. at 105-06.  The  Court held that those provisions did not require that the  administrator's eligibility determinations be given deference. Id. at 111-12.


19
Unum contends that, as the claims administrator of the  long-term disability policy, it has discretionary authority to  determine benefits eligibility because the policy requires the  insured to submit proof of disability.  Such a requirement,  Unum asserts, necessarily gives the insurer discretion because it must evaluate the legitimacy of the proof submitted. Unum Br. at 10.  As Unum conceded at oral argument,  however, virtually all insurance policies require proof of eligibility before the dispensation of benefits--hardly a surprising  fact, since insurance companies are not in the business of giving away money to anyone who requests it.  Accordingly,  if we were to regard any plan that requires proof of eligibility  as conferring discretion, Firestone's exception would swallow  its rule and render the standard of review deferential in  almost every case.  As Unum's argument would effectively  circumvent the Supreme Court's decision, we cannot accept  it.3


20
As a fallback, Unum points out that under Fannie Mae's  Flexible Benefits Plan, of which the long-term disability  insurance plan is a part, the company's Benefit Plans Committee is designated the Plan Administrator, S 2.01(e), and is  to "be afforded maximum deference allowed by law" in all of  its "decisions, interpretations [and] determinations," S 7.01. The Plan further provides that the Committee "may" delegate its authority to "outside consultants or companies,"  including "those matters involving the exercise of discretion." S


21
7.03 (emphasis added).  Unum contends that "by purchasing and incorporating into its plan the terms of the long-term  disability policy, which itself grants Unum discretion, Fannie  Mae in fact did delegate discretionary authority to Unum." Unum Br. at 9.


22
First, as we have noted above, the policy does not grant  Unum discretion;  hence the purchase and incorporation of the policy into the benefits plan establishes nothing.  Nor is  there any other indication that Fannie Mae (or, more precisely, theCommittee) has delegated any discretionary authority  to Unum to determine eligibility.4  Finally, there is no "decision[ ], interpretation[ ] [or] determination[ ]" by Fannie Mae  itself at issue here.  Fannie Mae has renounced its own  discretionary authority with respect to disability benefits  determinations.  See Fannie Mae Br. at 11.  At oral argument, the parties agreed that Fannie Mae exercised no  discretion with respect to the eligibility determination in this  case, and further agreed that there is no appeal to Fannie  Mae from Unum's disability benefit determinations.  Thus,  neither Unum nor Fannie Mae exercised the discretion that  would justify the application of arbitrary and capricious review.


23
For the foregoing reasons, we conclude that Unum's classification of Fitts' illness as mental rather than physical must  be reviewed de novo.  We do not, however, proceed with the  de novo review ourselves, because numerous factual disagreements persist.  Fitts contends that if Unum's classification is  reviewed de novo, the record will demonstrate that her  disability is physical;  Unum asserts the contrary.  Fitts  contends that current medical research on bipolar disorder  supports her claim;  Unum argues that there is no such  medical consensus.  Unum asks us to rule on a motion to  exclude certain items of evidence proffered by the plaintiff; Fitts argues that the evidence is admissible.  Although the de  novo standard might theoretically permit this court to perform the necessary review, the intensely factual nature of the  record counsels that we return the case for the district court's  examination.  In light of the change in the standard of  review, the parties will be free to supplement the existing  record by, inter alia, submitting current medical evidence  regarding bipolar disorder.

IV

24
We affirm the district court's dismissal of Fitts' claims  under the ADA on the ground that the long-term disability  plan is protected by the statute's safe harbor provision.  We  reverse the court's grant of summary judgment on the  ERISA claim, however, and remand for de novo review of  Unum's classification of Fitts' disability as a mental illness.



Notes:


1
 Fannie Mae is a federally-chartered, private corporation that  facilitates the secondary market in residential mortgages.  Federal  National Mortgage Association Charter Act, 12 U.S.C. § 1716b.


2
 In addition, Fitts asserted claims under the District of Columbia  Human Rights Act (DCHRA), D.C. Code S 1-2501 et seq., and  District of Columbia common law.  The district court dismissed  those claims.  Fitts did not appeal the dismissal of her common law  claims and has not argued the DCHRA issue in her briefs.  Accordingly, neither is before us on this appeal.  See Fed. R. App. P.  28(a)(9) (brief must "contain appellant's contentions and the reasons  for them");  see also Artis v. Greenspan, 158 F.3d 1301, 1302 n.1  (D.C. Cir. 1998) (issues listed but not briefed may be deemed  waived).  The one sentence Fitts provides on the DCHRA issue in  her reply brief is insufficient, and we would not in any event  consider an argument raised for the first time in a reply brief.  See  Herbert v. Nat'l Acad. of Sciences, 974 F.2d 192, 196 (D.C. Cir.  1992).


3
 Most circuits that have considered the issue have concluded that  the mere requirement of proof of eligibility does not confer discretion upon an administrator.  See Herzberger v. Standard Ins. Co,  205 F.3d 327, 332 (7th Cir. 2000) ("That the plan administrator will  not pay benefits until he receives satisfactory proof of entitlement  ... states the obvious, echoing standard language in insurance  contracts not thought to confer any discretionary powers on the  insurer.");  see also Feder v. Paul Revere Life Ins. Co., 228 F.3d  518, 524 (4th Cir. 2000);  Kinstler v. First Reliance Standard Life  Ins. Co., 181 F.3d 243, 252 (2d Cir. 1999);  Kearney v. Standard Ins.  Co., 175 F.3d 1084, 1089-90 (9th Cir. 1999) (en banc).  Unum relies  heavily on the Sixth Circuit's decision in Perez v. Aetna Life Ins.  Co., 150 F.3d 550 (6th Cir. 1998).  The policy at issue there,  however, did not simply require proof of eligibility but "satisfactory" proof.  No such language appears in Unum's policy.  Moreover,  Perez's view has been rejected by the above-cited circuits.


4
 Indeed, section 7.10(d) of the Plan provides that "notwithstanding any other provision of this section 7, claims with respect to the  benefits provided under an insurance contract ... shall be made  and reviewed under the terms of such contract."  As discussed, the  terms of the long-term disability policy do not confer discretion on  Unum.


