United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 26, 2008 Decided March 28, 2008
No. 07-7097
JANE FITTS,
APPELLEE
v.
UNUM LIFE INSURANCE COMPANY OF AMERICA,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 98cv00617)
Frank C. Morris, Jr. argued the cause for appellant. With
him on the briefs were Brian W. Steinbach and Ann M. Courtney.
John J. Witmeyer, III argued the cause and filed the brief for
appellee.
Before: RANDOLPH and GARLAND, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge RANDOLPH.
Concurring opinion filed by Senior Circuit Judge Edwards.
2
RANDOLPH, Circuit Judge: Jane G. Fitts was an attorney at
the Federal National Mortgage Association (“Fannie Mae”) until
1995, when bipolar disorder prevented her from working.1 Fitts
applied for disability benefits under Fannie Mae’s long-term
disability insurance plan. Unum Life Insurance Company of
America administered the plan. Unum paid Fitts but informed
her that her benefits would end after two years pursuant to a
clause in the plan limiting benefits “for disability due to mental
illness.”
The plan defines “mental illness” as “mental, nervous or
emotional diseases or disorders of any type.” Fitts complained
that bipolar disorder is a physical illness, not a mental illness.
Unum disagreed. Fitts then sued Unum under the Employee
Retirement Income Security Act of 1974 (“ERISA”) for
1
Fitts’s doctors diagnosed her as having Bipolar I Disorder and
Bipolar II Disorder. Bipolar I Disorder “is characterized by the
occurrence of one or more Manic Episodes.” AM. PSYCHIATRIC
ASS’N, DIAGNOSTIC & STATISTICAL MANUAL OF MENTAL DISORDERS
382 (4th ed. text rev. 2000). “A Manic Episode is defined by a
distinct period during which there is an abnormally and persistently
elevated, expansive, or irritable mood.” Id. at 357. Bipolar II
Disorder “is characterized by the occurrence of one or more Major
Depressive Episodes . . . accompanied by at least one Hypomanic
Episode.” Id. at 392. “The essential feature of a Major Depressive
Episode is a period of at least 2 weeks during which there is either
depressed mood or the loss of interest or pleasure in nearly all
activities.” Id. at 349. A Hypomanic Episode is “a distinct period
during which there is an abnormally and persistently elevated,
expansive, or irritable mood that lasts at least 4 days.” Id. at 365.
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“benefits due . . . under the terms of [the] plan.”2 29 U.S.C. § 1132.
The district court reviewed Unum’s decision for abuse of
discretion and granted summary judgment to Unum. Fitts v.
Fed. Nat’l Mortgage Ass’n, 77 F. Supp. 2d 9, 25 (D.D.C. 1999).
We reversed and remanded, holding that the court should have
reviewed de novo Unum’s classification of Fitts’s illness as
mental. Fitts v. Fed. Nat’l Mortgage Ass’n, 236 F.3d 1, 4-6
(D.C. Cir. 2001). After the parties engaged in discovery, the
district court granted partial summary judgment to Fitts on the
ground that bipolar disorder is not a mental illness. Fitts v.
Unum Life Ins. Co. of Am., 2006 WL 449299 (D.D.C. Feb. 23,
2006). In a later decision, the court found that Fitts has bipolar
disorder and is disabled as a result. Unum appealed both rulings
but has chosen to argue only that bipolar disorder is a mental
illness.
In the district court Fitts argued that her bipolar disorder had
a physical cause and for that reason could not be considered a
mental illness. Unum maintained that a disorder is a mental
illness if it is listed in the Diagnostic and Statistical Manual of
Mental Disorders or if “there are no physical conditions that
must be present for a person to be diagnosed with the disorder.”
Id. at *4-5. Other courts have defined “mental illness” as a
disorder whose symptoms a layperson would classify as arising
from a mental illness, a disorder with no physical cause, or a
2
Fitts also invoked the Americans with Disabilities Act, the
District of Columbia Human Rights Act, and District common law.
The district court dismissed these claims. Fitts v. Fed. Nat’l Mortgage
Ass’n, 44 F. Supp. 2d 317, 331 (D.D.C. 1999). Fitts appealed the
dismissal of her claim under the Americans with Disabilities Act, and
we affirmed. Fitts v. Fed. Nat’l Mortgage Ass’n, 236 F.3d 1 (D.C.
Cir. 2001). Fitts later stipulated to dismiss all claims against Fannie
Mae, which she had also named as a defendant.
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disorder whose treatment involves psychotherapy and
psychotropic medication. Id. at *6. The district court held that
“[t]he lack of consensus on the meaning of mental illness . . .
indicate[s] that it is ambiguous. . . . All of these approaches have
a reasonable basis, yet given the same set of facts, they could all
reach a different conclusion.” Id. at *7. The court resolved this
ambiguity in favor of Fitts.
In reaching this conclusion, the court thought there was “no
dispute over the possible causes and manifestations of bipolar
disorder. Both parties’ doctors acknowledge that bipolar
disorder is characterized by a combination of physical,
psychological, and social factors, and they generally agree as to
what those factors are.” Id. The courts of appeals disagree
whether a court may rely on a cause-based interpretation of
illness to find ambiguity in an ERISA-covered plan. The Fifth
Circuit believes that permitting a cause-based interpretation
would eliminate the distinction between mental and physical
disorders. Lynd v. Reliance Standard Life Ins. Co., 94 F.3d 979,
984 (5th Cir. 1996). The Eighth Circuit holds that it is improper
to consider the cause of a mood disorder because a layperson
classifies an illness by its symptoms, not its causes. Brewer v.
Lincoln Nat’l Life Ins. Co., 921 F.2d 150, 154 (8th Cir. 1990).
The Seventh, Ninth, and Eleventh Circuits hold that a cause-
based interpretation is permissible. Phillips v. Lincoln Nat’l Life
Ins. Co., 978 F.2d 302, 310-11 (7th Cir. 1992); Kunin v. Benefit
Trust Life Ins. Co., 910 F.2d 534, 541 (9th Cir. 1990); Billings v.
Unum Life Ins. Co. of Am., 459 F.3d 1088, 1090 (11th Cir.
2006).
Given the record in this case, it would be imprudent for us
to choose among the approaches just mentioned. If Fitts’s
disorder did not have a physical cause, we see no argument that
her illness was anything but mental. Yet at the summary
judgment stage, there was substantial disagreement about the
5
causes of bipolar disorder in general and of Fitts’s illness in
particular. In her statement of undisputed facts, Fitts cited
testimony from two of Unum’s expert witnesses for the
proposition that “bipolar disorder is a physical disability.” One
of these witnesses agreed that “one of the causes that contributes
to bipolar disorder is a biological cause,” but Unum responded
that this testimony was taken out of context and that “the
augmented record evidence shows that bipolar disorder is not
caused by physical factors, but rather at most has physical
correlates found in some individuals with bipolar disorder that
may be the result of emotional factors or environmental stimuli.”
Unum’s other witness described a lack of consensus on the
causes of bipolar disorder: “Psychiatrists would tell you [that
there are] more biological based issues [for illnesses such as
bipolar disorder] . . .. But you have disagreements in the
psychiatric community . . ..” Unum argued that the witness “is
a psychologist and testified that he does not, as a psychologist,
relate everything back to physiology, [and] that not everyone
agrees with the psychiatrists’ bias.” In its own statement of
undisputed facts, Unum cited testimony that most scans of Fitts’s
brain have appeared normal, and that the only unusual results
returned to normal in subsequent scans. One of Unum’s
witnesses refused to identify a biological cause for Fitts’s illness,
saying only that he could not rule one out.
Summary judgment is proper only if “there is no genuine
issue of material fact and . . . the movant is entitled to judgment
as a matter of law.” FED. R. CIV. P. 56(c). In deciding a motion
for summary judgment, a court must “view the facts and draw
reasonable inferences in the light most favorable to the party
opposing the summary judgment motion.” Scott v. Harris, 127
S. Ct. 1769, 1774 (2007) (quotations, citation, and alteration
omitted). Because there was a genuine dispute about the
possible causes of bipolar disorder, and in light of Unum’s
evidence casting doubt on the cause of Fitts’s illness, the district
6
court should not have granted partial summary judgment. We
therefore vacate the judgment and remand for further
proceedings consistent with this opinion.
So ordered.
EDWARDS, Senior Circuit Judge, concurring: I join the
majority opinion and write briefly only to confirm my
understanding of our disposition. On remand, the parties should
be guided by the following principal points:
First, the District Court erred insofar as it held that no
bipolar disorder can be a “mental illness” as defined in the
Unum policy. Even counsel for Fitts recognized that some
disorders can be accurately characterized as mental illnesses
under the policy – if not, the provision in question would be
rendered meaningless. Because the phrase “bipolar disorder”
covers a range of cases, some of which may be mental illnesses
and some which may not, whether a person’s disorder can be
characterized as “bipolar” is not, by itself, dispositive. To the
extent that the District Court held that bipolar disorder is never
a mental illness, its conclusion was wrong as a matter of law.
Second, if Fitts’ bipolar disorder did not have a physical
cause, appellees have presented no argument that it is not a
“mental illness,” and therefore it falls within Unum’s policy
limitation. The facts concerning the cause of Fitts’ disorder
were disputed, however, so summary judgment on this point was
inappropriate. The District Court never settled the question of
whether Fitts’ disorder had physical causes. Because Fitts offers
no viable argument that a non-physically caused bipolar disorder
is not a mental illness, the resolution of this factual question
may dispose of this case on remand.
Third, it is unclear whether Fitts’ bipolar disorder can be
properly characterized as a “mental illness” if it has been caused
in part by physical factors. Unum admits that some neurological
disorders with physical causes and behavioral symptoms – such
as Alzheimer’s disease or vascular dementia – are not mental
illnesses as defined by its policy. If it is determined that Fitts’
bipolar disorder does have a physical cause, then, at the very
least, the District Court must determine whether the causal
nexus between physical factors and behavior symptoms for
Fitts’ bipolar disorder are more similar to the neurological
disorders fully covered by Unum, or to traditional mental
2
illnesses that are subject to the policy limitation. The evidence
on this point is disputed, so summary judgment is inappropriate.