                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 19-2367
                        ___________________________

                              Melissa A. McIntyre

                                      Plaintiff - Appellee

                                        v.

                   Reliance Standard Life Insurance Company

                                   Defendant - Appellant
                                 ____________

                    Appeal from United States District Court
                         for the District of Minnesota
                                ____________

                            Submitted: June 18, 2020
                               Filed: August 25, 2020
                                 ____________

Before GRUENDER, WOLLMAN, and KOBES, Circuit Judges.
                       ____________

GRUENDER, Circuit Judge.

       In this action arising under the Employee Retirement Income Security Act
(“ERISA”), 29 U.S.C. § 1001 et seq., plan administrator Reliance Standard Life
Insurance Company (“Reliance”) appeals the district court’s grant of summary
judgment in favor of plan beneficiary Melissa McIntyre. Because the district court
erred in reviewing Reliance’s benefits denial de novo rather than for an abuse of
discretion, we vacate its judgment and remand this case for further proceedings.
                                          I.

       All her life, McIntyre has suffered from Charcot Marie Tooth Syndrome
(“CMT”), a degenerative neurological condition affecting peripheral nerves such as
those in the hands and feet. From 2003 to 2011, she worked as a nurse employed by
the Mayo Clinic Health System. During that time, she participated in an employer-
sponsored long-term disability plan (“Reliance plan”) governed by ERISA and
funded by a group insurance policy issued and administered by Reliance (“Reliance
policy”). In July 2011, McIntyre resigned because of CMT-related difficulties
performing her duties.

       Starting in 2011, she applied for a series of benefits from the Reliance plan.
The Reliance policy paid a “Monthly Benefit” if “an Insured” was “Totally
Disabled” within the meaning of the policy. The policy contained two definitions
of “Totally Disabled.” The definition applicable for the first twenty-four months in
which a benefit was payable (“short-term disability definition”) provided that
“Totally Disabled” means “an Insured cannot perform the material duties of his/her
Regular Occupation,” meaning “the occupation the Insured is routinely performing
when Total Disability begins.” The definition after that period (“long-term disability
definition”) provided that “Totally Disabled” means “an Insured cannot perform the
material duties of Any Occupation,” meaning “an occupation normally performed in
the national economy for which an Insured is reasonably suited based upon his/her
education, training or experience.” The policy also stated that Reliance was the
“claims review fiduciary” and had “the discretionary authority to interpret the Plan
and the insurance policy and to determine eligibility for benefits.”

       In 2011, McIntyre applied for and received benefits under the short-term
disability definition. In 2013, Reliance began evaluating whether McIntyre would
remain eligible for benefits under the long-term disability definition. This evaluation
process continued until December 2015, when Reliance concluded McIntyre was no
longer eligible for benefits because she was capable of working in “Any
Occupation.” In February 2016, Reliance notified McIntyre she would no longer


                                         -2-
receive benefits under the Reliance plan because she was ineligible under the long-
term disability definition.

       On May 31, 2016, McIntyre filed an appeal with Reliance, challenging its
eligibility determination under the long-term disability definition. After delays
caused by both McIntyre and Reliance, she eventually underwent an independent
medical examination in December 2016. The doctor who performed that
examination concluded McIntyre was “capable of working full time in a sedentary
position.” Following this examination, Reliance upheld its original determination
that McIntyre was not eligible for benefits under the long-term disability definition
and informed her of the same in late December 2016.

       McIntyre then filed suit against Reliance. See 29 U.S.C. § 1132(a)(1)(B). The
parties cross-moved for summary judgment. Ruling on these motions, the district
court concluded it would review Reliance’s decision de novo and, under that
standard of review, determined that McIntyre was entitled to benefits under the long-
term disability definition. Reliance appeals, arguing that the district court applied
the wrong standard of review and that its denial of benefits should be affirmed under
the correct standard of review.

                                         II.

       We review de novo the district court’s determination of the appropriate
standard of review under ERISA. Barnhart v. UNUM Life Ins. Co. of Am., 179 F.3d
583, 587 (8th Cir. 1999). Generally, “a denial of benefits challenged under
§ 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan
gives the administrator or fiduciary discretionary authority to determine eligibility
for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v.
Bruch, 489 U.S. 101, 115 (1989). Where the benefit plan gives the administrator
such discretionary authority, “a court should review the plan administrator’s
decision only for abuse of discretion.” Buttram v. Cent. States, Se. & Sw. Areas
Health & Welfare Fund, 76 F.3d 896, 899 (8th Cir. 1996). It is undisputed here that


                                         -3-
Reliance had such discretionary authority, thereby “trigger[ing] abuse-of-discretion
review.” Leirer v. Proctor & Gamble Disability Benefit Plan, 910 F.3d 392, 396
(8th Cir. 2018).

       The district court nevertheless decided that a de novo standard applied on the
basis of our caselaw providing that “less deferential review” applies despite a grant
of such discretionary authority if (1) either the administrator faces a “palpable
conflict of interest” or a “serious procedural irregularity” arose in the review process,
and (2) either the conflict or the procedural irregularity “caused a serious breach of
the plan administrator’s fiduciary duty” to the claimant. See Woo v. Deluxe Corp.,
144 F.3d 1157, 1160 (8th Cir. 1998), abrogated in part by Metro. Life Ins. v. Glenn,
554 U.S. 105, 115-16 (2008). Specifically, the district court found a palpable
conflict of interest present insofar as Reliance “both determines and pays claims”
and ostensibly has a “history of biased claims administration.” The district court
also found a serious procedural irregularity; namely, Reliance’s “long delay in
deciding McIntyre’s appeal.” It then concluded that both of these caused Reliance
to breach its fiduciary duty owed to McIntyre and therefore decided to “review
McIntyre’s benefits claim de novo.” McIntyre defends the district court’s
application of de novo review under our caselaw and argues in the alternative that a
de novo standard should apply in light of authorities from other circuits whose
approach she invites us to adopt.

                                           A.

       The key precedent underlying the district court’s decision to apply a de novo
standard is Woo, 144 F.3d 1157. In Woo, we recognized a court could apply “less
deferential review” in certain circumstances even when the administrator possesses
discretionary authority to interpret and apply the policy. Id. at 1160. The district
court found these circumstances present and evidently read Woo’s endorsement of
“less deferential review” to mean de novo review. This reading was error.




                                          -4-
       To begin, the parties agree that the Supreme Court’s decision in Metropolitan
Life Insurance v. Glenn, 554 U.S. 105 (2008), abrogated at least the conflict-of-
interest component of Woo, as we have repeatedly recognized. See, e.g., Boyd v.
ConAgra Foods, Inc., 879 F.3d 314, 320 (8th Cir. 2018) (noting that Glenn
“abrogated Woo to the extent Woo allowed a less deferential standard of review
based on merely a conflict of interest” (citing Wrenn v. Principal Life Ins., 636 F.3d
921, 924 n.6 (8th Cir. 2011)). It is thus undisputed that the district court erred in
relying on the presence of a conflict of interest to justify de novo review.

       The district court, however, also relied on the presence of “serious procedural
irregularities” to justify de novo review. We have repeatedly avoided deciding
whether Glenn “abrogated the ‘procedural irregularity’ component of the Woo
sliding-scale approach.” Leirer, 910 F.3d at 396 (“We need not decide that issue
here . . . .”); Boyd, 879 F.3d at 320 (“We need not address the validity of th[e
procedural-irregularities] component . . . .”); Waldoch v. Medtronic, Inc., 757 F.3d
822, 830 n.3 (8th Cir. 2014) (“Our circuit has not definitively resolved the impact of
Glenn on the ‘procedural irregularity component of the Woo sliding scale approach.’
See Wrenn[, 636 F.3d at 924 n.6]. We need not resolve this issue here . . . .”). We
once again avoid answering that question because we find a more fundamental error
in the district court’s application of Woo: Woo never permitted de novo review even
in cases where procedural irregularities are present.1

      1
        There is reason to doubt Woo’s sliding scale approach survived Glenn in any
respect. See Glenn, 554 U.S. at 116 (noting it is not “necessary or desirable for
courts to create special burden-of-proof rules, or other special procedural or
evidentiary rules, focused narrowly upon the evaluator/payor conflict”); Murphy v.
Deloitte & Touche Grp. Ins. Plan, 619 F.3d 1151, 1162 (10th Cir. 2010) (“We take
Glenn’s admonition against special rules to apply beyond the particular issue
addressed in Glenn.”); Keiser v. Conagra Foods, Inc., 57 F. Supp. 3d 399, 406 (M.D.
Pa. 2014) (recognizing that although “Glenn explicitly deals only with conflicts of
interest,” “the case impliedly extended [its] holding to procedural irregularities as
well”). It may very well be that, under Glenn, neither conflicts of interest nor
procedural irregularities trigger idiosyncratic standard-of-proof rules but are simply
“factors to be weighed in determining whether a plan administrator with
discretionary authority . . . abused that discretion.” See Ingram v. Terminal R.R.

                                         -5-
       In Woo, the ERISA beneficiary argued that we should not review the
administrator’s benefits denial “under the traditional abuse of discretion standard
because of procedural irregularities” in the benefits determination and because the
administrator had a “conflict of interest.” 144 F.3d at 1160. We identified a “two-
part gateway” by which the beneficiary could “obtain a less deferential review”: the
beneficiary had to “present material, probative evidence demonstrating that (1) a
palpable conflict of interest or a serious procedural irregularity existed, which
(2) caused a serious breach of the plan administrator’s fiduciary duty to her.” Id. at
1160-61. We concluded the beneficiary had satisfied this two-part test, “warranting
a less deferential standard of review.” Id. at 1161.

       We then turned to what this standard might look like, considering two
approaches taken by other circuits in similar circumstances. Id. On the one hand,
some courts “always review[ed]” a benefits denial “for an abuse of discretion” but
adopted a “‘sliding scale’ approach” to the standard of proof the plan administrator
had to satisfy to show the denial was not an abuse of discretion. Id. (citing Chambers
v. Family Health Plan Corp., 100 F.3d 818, 825-27 (10th Cir. 1996)). On the other
hand, other courts in effect reviewed a benefits denial de novo. Id. (citing Brown v.
Blue Cross & Blue Shield, 898 F.2d 1556, 1566-67 (11th Cir. 1990)).

        We “adopt[ed] the ‘sliding scale’ approach,” and in doing so we recognized
that it still “requires the courts to apply an abuse of discretion analysis.” Id. We
then applied this “modified abuse of discretion standard,” reviewing the benefits
denial for an abuse of discretion but requiring the administrator to support its
decision with “substantial evidence bordering on a preponderance” rather than
merely “substantial evidence.” Id. at 1162-63. At no point did we state that the
sliding scale approach would warrant a change in the standard of review from abuse
of discretion to de novo—in fact, some of the authorities on which we relied clearly

Ass’n of St. Louis Pension Plan for Nonschedule Emps., 812 F.3d 628, 631 (8th Cir.
2016). Given conflicting circuit precedent on this point, however, see Wrenn, 636
F.3d at 924 n.6, we follow the lead of prior panels and avoid resolving the issue now,
see id.

                                         -6-
disclaimed such an understanding of that approach. See id. at 1161 (citing Layes v.
Mead Corp., 132 F.3d 1246, 1250 (8th Cir. 1998) (noting how, while we had
previously “contemplated the application of a less stringent standard of review in
situations involving substantial procedural irregularities,” “[w]e did not suggest . . .
that a de novo standard was appropriate” but rather suggested “a less deferential
abuse of discretion standard” might apply (internal quotation marks omitted))); id.
at 1162 (citing Ellis v. Metro. Life Ins., 126 F.3d 228, 233 (4th Cir. 1997) (“[I]n no
case does the court deviate from the abuse of discretion standard.”)).

       Notwithstanding the fact that the Woo sliding scale approach did not authorize
departure from the abuse-of-discretion standard of review, Woo came to be read by
us as providing a gateway to de novo review. See, e.g., Johnson v. United of Omaha
Life Ins., 775 F.3d 983, 987 (8th Cir. 2014); Hackett v. Standard Ins., 559 F.3d 825,
830 (8th Cir. 2009); Smith v. United Television, Inc. Special Severance Plan, 474
F.3d 1033, 1035 n.1 (8th Cir. 2007); Parkman v. Prudential Ins. Co. of Am., 439
F.3d 767, 772 n.5 (8th Cir. 2006) (per curiam).

       The confusion appears to stem from a sentence in Woo in which we noted that
“the ‘sliding scale’ analysis . . . adheres to our decision in Armstrong v. Aetna Life
Ins. Co., 128 F.3d 1263, 1265 (8th Cir. 1997), where the egregious circumstances
essentially required the court to give no deference to the administrator’s decision.”
Woo, 144 F.3d at 1161-62. In Armstrong, we concluded that the “continuing
conflict” present when the administrator of an ERISA plan is also its insurer
permitted a court to review de novo the conflicted administrator’s benefits decision.
128 F.3d at 1265, abrogated by Glenn, 554 U.S. at 112, 115 (holding that this sort
of “dual role” conflict did not permit “a change in the standard of review, say, from
deferential to de novo review,” but instead was simply to be weighed as a factor in
the abuse-of-discretion analysis).

      Later panels appeared to read Woo’s purported “adhere[nce]” to Armstrong as
an indication that de novo review was permitted if Woo’s two-part test was satisfied,
whether by procedural irregularities or conflicts of interest. In Morgan v.


                                          -7-
Contractors, Laborers, Teamsters & Engineers Pension Plan, for example, we cited
Woo for the proposition that “a less deferential standard of review” may apply when
serious procedural irregularities are present, found them present, concluded the
second part of the Woo test was also satisfied, and then, citing to Armstrong, held
“that these circumstances require us to review the [administrator’s] decision to deny
benefits de novo.” 287 F.3d 716, 722-23 (8th Cir. 2002); see also Schatz v. Mut. of
Omaha Ins., 220 F.3d 944, 948 n.7. (8th Cir. 2000) (reading Woo and Armstrong
together to mean that “if there are ‘egregious circumstances,’ Woo, 144 F.3d at 1162,
then our review is de novo”); cf. House v. Paul Revere Life Ins., 241 F.3d 1045, 1048
(8th Cir. 2001) (citing Woo and Armstrong together for the proposition that
“conflicts of interest or procedural irregularities . . . may prompt a more searching
review”).

       Three data points, however, should have tipped off future panels that Woo’s
dictum about adherence to Armstrong was not a cue that Woo’s sliding scale
approach was a gateway to de novo review. See Pinto v. Reliance Standard Life Ins.,
214 F.3d 377, 391-92 (3d Cir. 2000) (recognizing the discrepancy between
Armstrong and Woo), abrogated on other grounds by Glenn, 554 U.S. 105; accord
West v. Aetna Life Ins., 171 F. Supp. 2d 856, 874-75 (N.D. Iowa 2001). First, Woo
and Armstrong are facially irreconcilable. See Roger C. Siske et al., What’s New in
Employee Benefits: A Summary of Current Case and Other Developments 121 (ALI-
ABA Course of Study 1998) (“Although the Woo court attempted to harmonize its
decision and that of the Armstrong court, the two decisions really are at odds.”).
Woo held that the presence of a “palpable conflict of interest” could trigger “the
‘sliding scale’ approach,” which “requires the courts to apply an abuse of discretion
analysis,” simply “taking into consideration the conflict,” 144 F.3d at 1160-61
(emphasis added); while Armstrong held that de novo review was authorized when
the administrator “faces a continuing conflict in playing the dual role of
administrator and insurer of the health benefits plan,” 128 F.3d at 1265. Second, the
Woo panel followed a Tenth Circuit decision to adopt the sliding scale approach, see
144 F.3d at 1161 (citing and following Chambers, 100 F.3d at 825-27), while the
Armstrong panel explicitly declined to follow that same decision’s “‘sliding scale’


                                         -8-
approach,” see 128 F.3d at 1265 (citing and declining to follow Chambers, 100 F.3d
at 824-27). Third, we found “egregious conduct” present in Woo yet still applied
only a “modified abuse of discretion standard” to review the administrator’s
decision, undermining any notion that “egregious circumstances” could trigger de
novo review under Woo. 144 F.3d at 1162-63.2

        Unfortunately, this misunderstanding of Woo persisted, albeit uniformly in
dicta. In some cases, we overtly suggested, or at least operated under the premise,
that Woo sanctioned de novo review. See, e.g., Ingram, 812 F.3d at 631
(acknowledging the beneficiary’s argument that “we should . . . apply a less
deferential de novo standard of review” under Woo’s two-part test but declining to
do so because “none of the conflicts of interest and procedural irregularities . . .
warranted departure from the abuse-of-discretion standard of review”); Johnson, 775
F.3d at 987 & n.1 (noting that “application of the de novo standard might apply”
under Woo but declining to address whether the procedural-irregularities component
of Woo was still good law post-Glenn because the beneficiary failed to establish that
procedural irregularities existed); Wade v. Aetna Life Ins., 684 F.3d 1360, 1362 &
n.2 (8th Cir. 2012) (assuming that the procedural-irregularities component of “Woo
still applies” post-Glenn but concluding that “the de novo standard [the beneficiary]
suggests is not warranted in situations such as this”); Hackett, 559 F.3d at 829-31
(discussing what “a claimant seeking de novo review” under Woo had to show but
reversing and remanding on the ground that the district court failed to take the
administrator’s conflict of interest into account when reviewing its decision for an
abuse of discretion); Smith, 474 F.3d at 1035 n.1 (commenting that “[a] plan
administrator’s decision may be subject to de novo review” under Woo but noting
that the beneficiary on appeal “does not contest that the applicable standard of review
is the abuse-of-discretion standard”); Parkman, 439 F.3d at 772 n.5 (suggesting that

      2
        Additionally, Judge Beam, the author of Woo, dissented in part in Armstrong,
calling the Armstrong panel’s discussion about de novo review “essentially[] obiter
dictum” and contending that “the de novo standard adopted is directly contrary to
Supreme Court precedent.” See Armstrong, 128 F.3d at 1266 (Beam, J., concurring
in part and dissenting in part).

                                         -9-
the beneficiary would have been entitled “to have her claim reviewed de novo” under
Woo but concluding Woo was not triggered).

        In other cases, while we did not explicitly treat Woo as if it authorized de novo
review, we still suggested Woo permitted review under a standard other than abuse
of discretion. See, e.g., Waldoch, 757 F.3d at 830 n.3 (suggesting that Woo
authorized “changing the standard of review from abuse of discretion to a less
deferential standard” but concluding no such change was permitted in that case
because the beneficiary “failed to establish that any procedural irregularities exist”);
Wrenn, 636 F.3d at 924 n.6 (“Woo held a less deferential standard of review than
abuse of discretion applied . . . . Because we conclude [the administrator] abused its
discretion, we do not address the extent to which Glenn may have changed the
procedural irregularity component of Woo’s sliding-scale approach.”); Hamilton v.
Standard Ins., 516 F.3d 1069, 1073-74 & n.5 (8th Cir. 2008) (noting that Woo’s
“sliding scale approach” is “somewhere between abuse of discretion and de novo”
but declining to address the proper standard because the administrator’s decision
was affirmable “even under a de novo standard of review”); Davolt v. Exec. Comm.
of O’Reilly Auto., 206 F.3d 806, 809 (8th Cir. 2000) (treating Woo’s sliding scale
approach as an “intermediate” standard of review between abuse of discretion and
de novo but declining to decide the proper standard “because any standard of review
. . . will yield the same result”).

       Regardless, none of these later decisions control to the extent they treat Woo
as providing a gateway to de novo review or some other heightened form of review
other than abuse of discretion—notions at odds with Woo itself. First, as previously
noted, in most of the cases in which we treated Woo as permitting departure from
the abuse-of-discretion standard, we did so in dicta. “[W]hen an issue is not squarely
addressed in prior case law, we are not bound by precedent through stare decisis,”
and we “need not follow dicta.” Passmore v. Astrue, 533 F.3d 658, 660-61 (8th Cir.
2008). Second, under Mader v. United States, when we are “faced with conflicting
panel opinions,” we must follow the “earliest opinion.” 654 F.3d 794, 800 (8th Cir.
2011) (en banc). Obviously, all of our precedents mischaracterizing the holding in


                                          -10-
Woo postdate Woo, and under Mader we must follow Woo rather than subsequent
cases misstating the holding in Woo and even, as in Morgan, misapplying Woo. See,
e.g., NLRB v. Leiferman Enters., LLC, 649 F.3d 873, 879 n.1 (8th Cir. 2011)
(declining to follow a subsequent panel precedent that “misread[]” an earlier panel
precedent and so was “squarely at odds with what that [earlier] case actually held”);
United States v. Gaines, 639 F.3d 423, 428 n.4 (8th Cir. 2011) (following the rule of
a prior panel precedent even though, “over the course of several iterations” in
subsequent precedential decisions, the rule “inadvertently evolved” into something
other than what the prior panel held).

        In sum, the district court erred in treating a conflict of interest as a trigger for
de novo review rather than simply as a factor in determining whether Reliance
abused its discretion. See Glenn, 554 U.S. at 115. The district court also erred in
treating an ostensibly serious procedural irregularity as a trigger for de novo review
rather than for Woo’s “‘sliding scale’ approach,” which “require[d] the [district]
court[] to apply an abuse of discretion analysis,” simply “taking into consideration
the . . . procedural irregularity.” See Woo, 144 F.3d at 1161.3

                                            B.

       Defending the district court’s decision to apply de novo review on alternative
grounds, McIntyre invites us to adopt other circuits’ approach permitting district
courts to review benefits denials de novo in the face of an administrator’s “decisional
delay” beyond the deadline prescribed in ERISA’s implementing regulations or the
plan itself.4 For instance, McIntyre calls our attention to Fessenden v. Reliance

       3
        We emphasize that, at most—and only if the procedural-irregularities
component of Woo survived Glenn, but cf. supra note 1—Woo would permit the
district court to “require that the record contain substantial evidence bordering on a
preponderance to uphold [Reliance’s] decision” if the district court determines the
procedural irregularities here are “egregious.” See Woo, 144 F.3d at 1162.
       4
       The regulations in effect before 2017 gave the administrator forty-five days
from “receipt of the claimant’s request for review” to “notify [the] claimant” of its

                                           -11-
Standard Life Insurance, in which the Seventh Circuit held that when an
administrator “fail[s] to issue a decision” in an internal appeal of a benefits denial
“within the timeline mandated by the regulations,” a de novo standard of review
applies notwithstanding a grant of discretion to the administrator in the ERISA plan.
927 F.3d 998, 999-1000 (7th Cir. 2019). She also identifies cases in other circuits
adopting a similar rule. See, e.g., LaAsmar v. Phelps Dodge Corp. Life, Accidental
Death & Dismemberment & Dependent Life Ins. Plan, 605 F.3d 789, 798-99 (10th
Cir. 2010) (holding that an administrator’s decision is subject to de novo review if it
was issued “substantially outside the time period within which the Plan vested [the
administrator] with discretion to interpret and apply the Plan”); Nichols v. Prudential
Ins. Co. of Am., 406 F.3d 98, 109 (2d Cir. 2005) (holding “that a ‘deemed denied’
claim”—a claim that, under a prior iteration of the ERISA regulations, was denied
by operation of law if the administrator failed to issue a decision by the prescribed
deadline in the regulations—“is entitled to de novo review”).

       Such a rule, however, is not the law of our circuit. Consider Johnson, in which
the district court found procedural irregularities present and concluded (mistakenly,
see supra Section II.A) that de novo review thus was warranted under Woo. 775
F.3d at 988. As relevant here, one of the procedural irregularities was the
administrator’s “failure to timely process the [beneficiary’s] claims.” Id. (brackets
omitted). Specifically, the beneficiary appealed the initial denial of her long-term
disability claim on August 27, 2010. See Johnson v. United of Omaha Life Ins., No.
8:11CV296, 2013 WL 942511, at *9-10 (D. Neb. Mar. 11, 2013). The administrator
denied the appeal on January 28, 2011, meaning the appeal was pending for 154



decision on an internal appeal from a denial of disability benefits and allowed for
one forty-five-day extension of that deadline. See 29 C.F.R. § 2560.503-1(i)(1)(i)
(2016); id. § 2560.503-1(i)(3)(i). The regulations also provided for tolling of this
deadline in limited circumstances. See id. § 2560.503-1(i)(4). McIntyre filed her
appeal with Reliance on May 31, 2016, and Reliance notified McIntyre of its
decision on December 22, 2016, well beyond the maximum ninety-day period.
While the parties argue about how much time should be deemed tolled, Reliance
does not dispute that its decision came after the deadline had passed.

                                         -12-
days. See id. at *11. 5 Under both the terms of the policy at issue there as well as the
governing regulations at the time, the administrator was required to issue a decision
within forty-five days of receipt of the appeal, with only one forty-five-day extension
of that initial forty-five-day period permitted, for a maximum total of ninety days.
See 29 C.F.R. § 2560.503-1(i)(1)(i) (2009); id. § 2560.503-1(i)(3)(i). Tolling of this
deadline was permitted in limited circumstances, see id. § 2560.503-1(i)(4), but it
does not appear the administrator in Johnson had any basis to argue for tolling, see
Johnson, 2013 WL 942511, at *10-11. Thus, just like Reliance here, the
administrator in Johnson failed to issue a decision regarding the appeal within the
prescribed timeframe. This untimeliness (and a number of other procedural
irregularities) notwithstanding, we reversed the district court and “determined the
abuse-of-discretion standard was the appropriate standard for the district court to
apply.” Johnson, 775 F.3d at 988-89.

        Whatever may be the law in other circuits, it is apparent in light of Johnson
that, in our circuit, the administrator’s decisional delay on appeal does not in and of
itself trigger de novo review. Indeed, under circuit law, de novo review is not
triggered in this context unless the administrator wholly fails “to act on an appeal”
and that failure “raises serious doubts about the result reached by the plan
administrator” in its initial denial. See Seman v. FMC Corp. Retirement Plan for
Hourly Emps., 334 F.3d 728, 733 (8th Cir. 2003) (citing McGarrah v. Hartford Life
Ins., 234 F.3d 1026, 1031 (8th Cir. 2000), abrogated in part on other grounds by
Glenn, 554 U.S. 105). Deciding an appeal after a prescribed deadline is obviously
not a wholesale failure to act on an appeal. The administrator’s decisional delay,
then, “does not raise the standard of review from abuse of discretion to de novo.”
See id. In light of our caselaw, we must decline McIntyre’s invitation to follow the
law of other circuits on this point.




      5
       The district court erroneously stated the appeal was denied on “January 28,
2010.” A review of the record citation provided by the district court indicates the
court meant January 28, 2011.

                                         -13-
       McIntyre suggests we should extend McGarrah and Seman so that both a
wholesale failure to act on an appeal and a decisional delay on appeal are treated as
triggers for de novo review, arguing that a decisional delay “is just a different degree
of failure to act.” This contention misunderstands the rationale underpinning the
rule of McGarrah and Seman and thus blurs the material distinction between a
wholesale failure to act and a decisional delay.

        As we explained in Seman, the administrator’s wholesale failure to act on an
appeal can trigger de novo review because, in certain circumstances—when the
initial denial was based on an incomplete record, the beneficiary developed the
record more fully on appeal, but the administrator failed to reconsider the matter in
light of the developed record—the failure to act on an appeal is “equivalent” to
failing “to render a decision” at all concerning the claim. See 334 F.3d at 733 (citing
Mansker v. TMG Life Ins., 54 F.3d 1322, 1328 (8th Cir. 1995) (holding that the
administrator’s “failure to render a decision on certain issues” means that “the
district court could . . . decide the issues de novo” by reasoning, in essence, that if
the administrator’s discretion is not exercised, there can be no review for an abuse
of that discretion)). A delayed decision on appeal made after the beneficiary has
fully developed the record is different in kind than the wholesale failure to act on an
appeal we found equivalent to no decision at all in Seman. Delayed decisionmaking
thus does not come within the rule of McGarrah and Seman.

       In short, under circuit law, the administrator’s delay in deciding an appeal is
not a trigger for de novo review. It is, rather, a factor to be considered by the district
court when reviewing the administrator’s decision for an abuse of discretion. See
Woo, 144 F.3d at 1161. Other circuits may opt for a different approach, see Nichols,
406 F.3d at 109 (recognizing Seman as part of a three-way circuit split but declining
to follow it), but we are bound by our circuit’s law on this point.




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                                        III.

       Reliance asks us to apply the abuse-of-discretion standard of review and
reverse the district court by finding that Reliance did not abuse its discretion in
denying McIntyre’s claim. Ordinarily, remand is appropriate when the district court
errs by reviewing the administrator’s benefits decision under the wrong standard of
review. See Woo, 144 F.3d at 1162 n.3. We see no reason to depart from that
protocol here, cf. id., particularly given that “review of the plan administrator’s
denial of benefits” in this case “is a highly fact-intensive inquiry,” see Seman, 334
F.3d at 734.

       Accordingly, we vacate the judgment of the district court and remand for the
district court to review Reliance’s benefits decision for an abuse of discretion
consistently with Woo, Glenn, and this opinion.
                       ______________________________




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