                              UNPUBLISHED

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT


                              No. 06-2112



In Re:    WILBER BUDDYHIA MARSHALL,

                                                                Debtor.

------------------------


JANET M. MEIBURGER, Trustee; WILBER BUDDYHIA
MARSHALL,

                                              Plaintiffs - Appellants,

            versus


THE   BERT  BELL/PETE      ROZELLE    NFL   PLAYER
RETIREMENT PLAN,

                                                 Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:06-cv-00075; 02-80496; 04-1020-RGM)


Argued:   October 31, 2007                  Decided:   January 14, 2008


Before MICHAEL, KING, and DUNCAN, Circuit Judges.


Reversed and remanded by unpublished per curiam opinion.


ARGUED: William Daniel Sullivan, TIGHE, PATTON, ARMSTRONG &
TEASDALE, P.L.L.C., Washington, D.C., for Appellants. Lonie Anne
Hassel, GROOM LAW GROUP, CHARTERED, Washington, D.C., for Appellee.
ON BRIEF: Janet M. Meiburger, THE MEIBURGER LAW FIRM, P.C., McLean,
Virginia, for Appellant Janet M. Meiburger. Douglas W. Ell, GROOM
LAW GROUP, CHARTERED, Washington, D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

              Wilber B. Marshall, Jr., and his trustee in bankruptcy

sued the Bert Bell/Pete Rozelle NFL Player Retirement Plan and the

NFL Player Supplemental Disability Plan (together, the Plan) under

the Employee Retirement Income Security Act (ERISA), 29 U.S.C.

§ 1132(a)(1)(B).        Marshall and the trustee sought a determination

that    (1)   the    Plan’s   Retirement     Board    (the   Board)   erred   in

determining the onset date of Marshall’s total and permanent

disability, and that (2) he was entitled to retroactive benefits

for an additional eight-month period.                 The Board arbitrarily

selected the date of a doctor’s examination as the onset date.                The

record, however, contained evidence establishing an earlier onset

date,   and    the    bankruptcy   court    entered   judgment   in   favor    of

Marshall and the trustee. The district court reversed. Because we

conclude that the bankruptcy court’s ultimate determination was

correct, its judgment will be reinstated.



                                       I.

                                       A.

              The    Plan   provides   disability     benefits   to   a   vested

inactive (or retired) football player who qualifies as “totally and

permanently disabled.”         J.A. 39.     According to the terms of the

Plan, an applicant for benefits is considered to be totally and

permanently disabled if he is “totally disabled to the extent that


                                        3
he is substantially prevented from or substantially unable to

engage in any occupation or employment for remuneration or profit.”

J.A. 41.     A benefits recipient may be required to submit to

periodic physical examinations for the purpose of reevaluating his

condition; if total and permanent disability ends, benefits are

terminated. In the event of termination, a beneficiary may reapply

for   benefits.   The   Plan   provides   that    benefits   are   awarded

“retroactive to . . . the first of the month following the date of

the total and permanent disability,” but not more than forty-two

months prior to the date the Board receives the application for

benefits.   J.A. 39.

            The Plan is administered by the Board, whose voting

membership consists of three representatives of the NFL Management

Council and three representatives of the National Football League

Players Association (NFLPA).     The Plan grants the Board “full and

absolute discretion, authority and power” to decide claims for

benefits and to interpret the terms of the Plan.        J.A. 49-50.     If

the Board deadlocks on whether a retired player qualifies as

totally and permanently disabled, it may by a three-member vote

request that the player be examined by a medical advisory physician

(MAP), a board-certified orthopedic physician jointly designated by

the NFL Management Council and the NFLPA.        MAP decisions are final

and binding upon the Board.




                                   4
                                         B.

            Marshall played NFL football for twelve seasons, retiring

in 1995.     As a result of injuries sustained during his playing

career, Marshall has degenerative arthritis in both knees, his

right elbow, his left shoulder, both ankles, his spine, and his

hands.     As a vested inactive player under the Plan, he qualifies

for disability benefits if he is determined to be totally and

permanently disabled.

            Marshall first applied for disability benefits in 1997.

Based on a finding by neutral physician Dr. Royer Collins on March

6, 1997, that Marshall could do sedentary work, the Board denied

the application.      Marshall appealed in November of 1997 and was

referred to a MAP, Dr. James E. Tibone, who examined Marshall on

February    5,    1998,     and   determined        that   he    was   totally   and

permanently      disabled.        The   Board       awarded     Marshall   benefits

retroactive to April 1, 1997.           In 1999 Marshall was again examined

by Dr. Collins who found that he remained totally and permanently

disabled.

            In February of 2000 the Board received two unsolicited

physicians’      reports:     one   from      Dr.    Collins,    who   opined    that

Marshall was still totally and permanently disabled; and one from

Dr. Richard Zipnick, who, in the course of treating Marshall for an

unrelated condition, opined that he was capable of doing desk work.

The Board consulted Dr. Collins, who then agreed with Dr. Zipnick’s


                                         5
conclusion that Marshall could work.              The Board next referred

Marshall to a MAP, Dr. Bernard Bach, who reported on September 11,

2000, that Marshall did not meet the criteria for total and

permanent   disability   and   that       he   could   work   in   a   sedentary

position.   At its meeting on April 12, 2001, the Board terminated

Marshall’s benefits effective April 27, 2001.             Marshall’s June 5,

2001, appeal to the Board was denied on August 2, 2001.

            On November 13, 2001, Marshall reapplied for disability

benefits.    The Board referred him to a neutral physician, Dr.

Walter Doren, who examined him on December 7, 2001.                    Dr. Doren

reported on January 3, 2002, that Marshall was unable to work and

that based on a review of Marshall’s medical records, his symptoms

had remained consistent since his initial evaluation in 1997.                The

Board then referred Marshall to a MAP, Dr. Alfred Tria, who

reported on February 21, 2002, that Marshall was totally and

permanently disabled.      Based on Dr. Tria’s report, the Board

renewed Marshall’s benefits, to commence on March 1, 2002 (the

first of the month after the examination by Dr. Tria).                  Marshall

then sent the Board two letters, the first requesting that the

effective date for the benefits be changed to December 2001 and the

second requesting that it be changed to February 8, 2002.                    The

Board changed the effective date to January 1, 2002, the first day

of the month after Marshall was examined by Dr. Doren.




                                      6
              In the meantime, on February 5, 2002, Marshall filed a

voluntary petition under chapter 11 of the bankruptcy code.                          In

early 2004 Marshall’s bankruptcy trustee initiated an adversary

proceeding, filing a complaint (later joined by Marshall) against

the Plan.      The complaint, brought under ERISA, sought benefits

(approximately $72,000) that were denied to Marshall for an eight-

month period, May 2001 through December 2001.                     The parties cross-

moved for summary judgment based on the administrative record.

After a hearing in the summary judgment proceedings, the bankruptcy

court (1) noted that the Plan requires benefits to be awarded

retroactively to the first of the month following the onset of

disability, and (2) that it was an abuse of discretion in this case

for the Board to use the date of Dr. Doren’s medical examination as

the onset date.         The bankruptcy court asked the parties for

memoranda on whether the question of the actual onset date should

be remanded to the Board or whether the court should decide it,

either   on    the   administrative   record            or   by   taking   additional

evidence.     In its supplemental memorandum the Plan argued against

either   a    remand   to   the   Board       or   an    evidentiary       hearing   in

bankruptcy court and asked the court to decide the case based on

the administrative record. After requesting additional briefing on

the merits and considering the record, including Dr. Doren’s report

concluding that Marshall’s symptoms had remained consistent since

his first disability award, effective April 1997, the bankruptcy


                                          7
court determined that Marshall should receive benefits retroactive

to May 1, 2001.      The court also assessed attorney fees and costs

against the Plan.

             The Plan appealed this decision to the district court.

The district court reversed, concluding that the Board’s decision

to   award   benefits   retroactive       only   to   January   1,    2002,   was

supported by substantial evidence and was reasonable. Marshall now

appeals the district court’s decision to this court.



                                   II.

                                      A.

             We review the decision of a district court sitting in

review of a bankruptcy court de novo, applying the same standards

of review that were applied in the district court; specifically, we

review the bankruptcy court’s findings of fact for clear error and

its conclusions of law de novo.            Logan v. JKV Real Estate Servs.

(In re Bogdan), 414 F.3d 507, 510 (4th Cir. 2005).                   In an ERISA

case a reviewing court first determines de novo whether a benefits

plan   confers    discretionary   authority      on   the   administrator      or

fiduciary.       If it does, the court reviews the decision of the

administrator or fiduciary for abuse of discretion.                    Ellis v.

Metropolitan Life Ins. Co., 126 F.3d 228, 232-33 (4th Cir. 1997).

Under the abuse of discretion standard, a decision is reasonable if

it is the result of a deliberate, principled reasoning process and


                                      8
is supported by substantial evidence.     Bernstein v. CapitalCare,

Inc., 70 F.3d 783, 788 (4th Cir. 1995).      Because the Plan here

grants the Board the discretion to decide claims for benefits and

to interpret the terms of the Plan, we review the Board’s decision

for abuse of discretion.

          The central question here is whether the Board abused its

discretion by using as the disability onset date the date of Dr.

Doren’s examination (December 7, 2001) that revealed Marshall was

totally and permanently disabled.    The Plan provides that benefits

must be awarded retroactively to the first of the month after the

onset of total and permanent disability.       The bankruptcy court

concluded that the Plan therefore requires the Board to determine

when the onset of total and permanent disability occurred and that

the Board abused its discretion by not making a reasonable effort

to fulfill its duty in this case.

          At oral argument counsel for the Plan stated that the

Board does not automatically award benefits on the first of the

month after the first doctor’s report finding total and permanent

disability.   For example, when the record contains social security

disability records or tax returns reflecting that an applicant is

unable to work, the Board has awarded benefits retroactively to the

time when employment ended.    Counsel asserted, however, that in

Marshall’s case Dr. Doren’s December 2001 examination was the




                                 9
earliest evidence of total and permanent disability in the record

after Dr. Bach’s September 2000 report that Marshall could work.

             We appreciate the difficulty of determining an exact date

of total and permanent disability in the case of a degenerative

illness, such as Marshall’s, where the severity of symptoms may

vary from time to time.           In some cases the date of a doctor’s

examination may be the only information available as to the onset

date    of   total   and    permanent    disability,     especially   when   the

examining doctor is unable or unwilling to provide an opinion

regarding onset.        Here, however, the bankruptcy court rejected the

Board’s arbitrary use of the date of the doctor’s examination to

reinstate benefits.         The bankruptcy court reviewed the record and

found sufficient evidence in Dr. Doren’s report to indicate that

Marshall’s total and permanent disability extended back at least to

May 1, 2001.         Indeed, Dr. Doren’s opinion was that Marshall’s

symptoms had been consistent since 1997.              Thus, in Marshall’s case

the simple date of Dr. Doren’s examination was not the only

information available to the Board from which to determine an onset

date. In that situation the Board’s exclusive reliance on the date

of     the   doctor’s      examination    did   not     result   in   an   onset

determination that was “the result of a deliberate, principled

reasoning process.”           See Bernstein, 70 F.3d at 788 (internal




                                         10
quotation marks and citation omitted).*   As a result, we agree with

the bankruptcy court that the Board abused its discretion in

selecting the onset date.

          For these reasons, we reverse the order of the district

court, which had reversed the bankruptcy court, and remand for

reinstatement of the judgment of the bankruptcy court.



                                              REVERSED AND REMANDED




     *
      We are not unsympathetic to the Plan’s argument that allowing
benefits to be paid retroactively to May 1, 2001, would create
tension with the “final and binding” decision of Dr. Bach on
September 11, 2000, that Marshall was not totally and permanently
disabled at that time.    We simply conclude here that the Board
could not escape this tension by ignoring Dr. Doren’s finding on
January 3, 2002, that Marshall was totally and permanently disabled
and that his symptoms had remained consistent since his initial
medical evaluation in 1997.

                                11
