Recupero v. New England Telephone & Telegraph Co.

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 96-2265

CHERYL T. RECUPERO,

Plaintiff - Appellant,

v.

NEW ENGLAND TELEPHONE AND
TELEGRAPH COMPANY, ET AL.,

Defendants - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert B. Collings, U.S. Magistrate Judge]

Before

Bownes and Cyr, Senior Circuit Judges,

and Keeton,* District Judge.

Lynn Thomas Johnson, with whom Blaine J. DeFreitas and Saab
Law Firm were on brief for appellant.
Lisa
M.
Birkdale,
New
England Telephone and Telegraph Company,
for appellees.

July 7, 1997

* Of the District of Massachusetts, sitting by designation.

KEETON, District Judge. This appeal presents issues

regarding the scope of jurisdiction of federal courts over claims

for benefits under an employee benefits plan that is subject to

regulation under the Employee Retirement Income Security Act

(ERISA). In particular, we must decide what standards apply to

judicial
review
of
the
decisions of the out-of-court decisionmakers

in this case.

Without
doubt, in the circumstances of this case, as the

parties agree, the district court had jurisdiction for judicial

review of the out-of-court decisions, under 29 U.S.C.

SS 1132(a)(1)(B) and 1132(c), for at least one purpose: to

determine
whether those decisions should be set aside as arbitrary

and capricious. In turn, this court has jurisdiction, under 28

U.S.C. SS 636(c)(3) and 1291, to consider plaintiff-appellant's

appeal from the district court's judgment for defendants.

In cases involving this kind of judicial review,

ordinarily the appropriate judgment for a district court to order

is
one
or
the
other
of
two kinds. If the district court determines

that
the
out-of-court decisions were arbitrary and capricious, the

appropriate form of order is one remanding to the out-of-court

decisionmaker for further proceedings to decide whether the claim

or claims have merit. Otherwise, the usual form of order is a

final judgment affirming the decisions of the out-of-court

decisionmaker.

In
this
case, however, appellees assert that "[t]he

only
salient
issue
before the court is whether the determination of

the
Committee to deny Recupero accident benefits was arbitrary and

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capricious." (Appellee's Br. at 2.) Though acknowledging as a

general matter the possibility of a remand "to the Committee for

further consideration" (id.), in the end appellees request only a

recognition that "the Committee's reasonable decision must be

permitted
to
stand" and an order that the district court's summary

judgment for defendant "be affirmed." (Id. at 22.) Appellant,

also,
seeks
a final decision in this court. Thus, no party to the

appeal asks for remand to the out-of-court decisionmaker (or even

to the district court on conclusion of this appeal), except

possibly as an alternative request, not clearly argued in the

briefs and barely mentioned in oral argument apart from responses

to questions from the court. Instead, the parties join in

contending that, if we conclude that the out-of-court decisions

were for some reason arbitrary and capricious, then we should

(1)
decide
this
controversy finally, or order the district court to

do so, making any factual findings necessary to a decision on the

merits,
or
(2)
decide
that the claim is finally resolved on grounds

of some procedural bar, estoppel, or harmless error.

In these circumstances, this appeal presents a

fundamental question about the scope of jurisdiction of the

district court and this court. After stating relevant background

matter in Part I, we address this fundamental jurisdictional

question
in
Part
II,
concluding that the courts do not have plenary

jurisdiction to decide all questions bearing on the merits. In

Part III we turn to other issues, over which we do have

jurisdiction,
and conclude that the judgment of the district court

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against plaintiff-appellant is to be affirmed, though without

approval of all details of the district court's reasoning.

I. Background

The incident that forms the basis for this civil action

and
this
appeal occurred on January 18, 1990, while the plaintiff-

appellant, Cheryl Recupero, was working for New England Telephone

and Telegraph Company ("NET") as a Service Representative. The

District Court recited, as an undisputed fact, that:

At 9:30 am on January 18, she left her
workstation on the sixth floor for the
purpose of going for coffee at a shop on
the
ground
floor. She entered an elevator
and was injured in a mishap while in the
elevator.

(Recupero v. New England Telephone & Telegraph Co., Civil Action

No. 94-12266-MLW, Memorandum and Order, Sept. 20, 1996 at 2.)

As a result of injuries sustained in this incident,

Recupero applied for benefits under the NET plan. (Id.) She was

granted
benefits under the Sickness provision of the plan, but was

denied Accident benefits. (Id. at 3-4.)

The NET plan provides that an employee is:

[Q]ualified to receive [Accident
Disability] payments on account of
physical disability to work by reason of
accidental
injury ...arising out of and in
the course of employment by the Company.

(Id. at 3)(emphasis added).

The plan further elaborates that:

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Accidental
injuries shall be considered as
arising out of and in the course of
employment only where the injury has
resulted solely from accident during and
in direct connection with the performance
of duties to which the employee is
assigned...

(Id.)(emphasis added). The only limitation on the duration of

payment of Accident Disability Benefits, under the terms of the

plan,
is
that
the
employee remains unable to work. (Id. at 4 n.2.)

The
plan
does
not
explicitly define what "sickness" is in

the section providing for Sickness Disability Benefits, but does

state that "sickness shall include injury other than accidental

injury arising out of and in the course of employment by the

Company." (Id. at 4)(emphasis added). Sickness Disability

Benefits are subject to a duration limit of 52 weeks, under the

terms
of
the
plan.
(Id.

at 4, n.2.) NET paid and Recupero accepted

52 weeks of Sickness Disability Benefits. (Id. at 3.)

The Benefits Office determined that Recupero was not

entitled to Accident Disability Benefits because her injuries did

not arise out of or occur in the course of her employment. (Id.)

Recupero
appealed this decision to the Employee Benefits Committee

("EBC" or "Committee"), which denied her appeal by letter on

December 15, 1993, stating that "it was determined that there is

evidence that you were not eligible for Accident Benefits for the

incident report on January 18, 1990." (Id.) Recupero then filed

an identical appeal with the Employee Benefits Claim Review

Committee ("EBRC" or "Review Committee"), which also denied her

appeal, stating that "after consideration of all available

-5-

information,
including
the information you provided, the [EBRC] has

determined
that
there
is
no reason to reverse the original decision

of the [EBC]." (Id. at 5.)

Recupero
filed a civil action for judicial review in the

United States District Court for the District of Massachusetts.

The
district
court assigned the case to Magistrate Judge Collings,

under 28 U.S.C. S 636(c)(1) and Local Rules of the district.

In
the
district court, Recupero contended that: (1) the

EBC
and
the
EBRC acted arbitrarily and capriciously by erroneously

interpreting
the
provisions of the plan; (2) the Committees' denial

of her claim lacked good faith; and (3) the Committees gave her

inadequate notice of the denial. (Id. at 9.)

The district court decided the case by ruling on cross

motions for summary judgment.

The court initially noted the appropriate standard of

review,
stating that the arbitrary and capricious standard applies

where the benefit plan vests the fiduciary with the discretionary

authority to determine benefits eligibility and to construe plan

provisions. (Id.) The court then made the following

determination:

[T]he NET plan enumerates in sufficient
detail the broad discretionary powers of
both the EBC and the EBCRC necessary for
application
of the deferential standard of
review. Thus, the rulings of the NET
committees will not be disturbed unless
the
denials
were arbitrary and capricious.

(Id. at 8.)

-6-

The district court next examined in detail the various

claims and contentions. Recupero, using the word "Committee" to

refer to either or both of the Benefits Committee and the Review

Committee, stated as her first argument that the Committee

improperly
categorized
her injury as "off-duty" when it should have

been treated as an "on-duty" injury. (Id. at 9.) This argument

concluded
with
the
assertion that it was not "rational" to classify

incidents that occur during breaks, taken at a time required or

directed by the employer, as being "off-duty" incidents. (Id.)

The district court concluded (contrary to Recupero's

contention) that the EBC and EBRC had not been arbitrary and

capricious
in
interpreting the plan as defining break-time as "off-

duty" time. The court stated:

Recupero
does not point to any language in
the plan which indicates that the
committee interpretation is not rational.
Nor does she point to language which
suggests that the scope of the Accident
Benefits Provision should be given a
broader reading and be applied when the
injury occurs as a result of an otherwise
non-job-related activity which is
marginally motivated by a job-related
exigency. On the contrary, and the
defendants point out, the plain language
of the plan militates for a far narrower
reading.

(Id. at 10-11.)

The
court
below
also
emphasized that the definition of an

injury that would qualify an employee for accident benefits had

words of limitation, such as "only," "solely," and "in direct

connection." (Id. at 11.) These words, the court reasoned, are

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plain and unambiguous, and require that for an employee "to be

eligible
for
accident benefits, the activity in which the employee

is engaged at the time of injury must be a duty or responsibility

required by her job." (Id.) Thus, the court concluded:

It
is
an
undisputed fact that Recupero was
taking her break and going to get coffee
at the time she sustained her injuries.
Breaks fall outside the purview of the
plain language of the Accident Benefit
Provisions. Therefore, given that
Recupero was on break at the time, her
injury cannot be said to be a direct and
sole result of her job responsibilities.

(Id.)

Because, as the court below viewed the matter, the

plaintiff
had failed to raise an issue of material fact, the court

ruled that the Committees' interpretation was consistent with the

language of the plan, and that the Committees did not act

arbitrarily or capriciously in denying Recupero's claim. (Id. at

12.)

Recupero's second contention below was that the

Committees
acted with a lack of good faith toward her because, she

claimed,
the
EBC and the EBRC either never met to review her claim

or
failed
to
have a quorum present when they did meet. (Id.) The

court
below
determined that Recupero's claim of lack of good faith

was without evidentiary support in the record. (Id. at 13.)

The final issue decided by the court below was whether

the
notices
of denial sent to Recupero by the Committees conformed

with the statutory requirements of ERISA. (Id.) Recupero

contended that the failure of the Committees to include specific

-8-

reasons for denying her claim, or to cite to any specific plan

provisions upon which the denial was based, precluded her from

obtaining
the information that was necessary for her to pursue her

claim. (Id. at 14.)

On the issue of notice, the court below concluded that:

The
denial
letters sent to Recupero failed
to conform strictly to the requirements
set forth in ERISA, 29 U.S.C. S 33, and
were insufficient as a matter of law.
Nonetheless, as a practical matter, the
letters were substantially sufficient to
inform Recupero that her claim had been
denied.

(Id.)

Having so concluded, the lower court then considered

whether any remedy was available to Recupero for NET's failure to

conform to the requirements of 29 U.S.C. S 33. (Id.) The court

concluded that a remand to the EBC or the EBRC would be a useless

formality
because the evidence taken as a whole indicated that the

denial of benefits was correct. (Id. at 15.)

On this reasoning, the district court granted summary

judgment for NET on all claims. Recupero appealed. No cross

appeal was filed.

II. The Scope of Jurisdiction in a Case
Involving Judicial Review of Out-of-Court Decisions

A. Circumstances of the Present Appeal

As
already
noted, the district court had, and this court

has, authority for judicial review of the out-of-court decisions

that preceded commencement of this civil action in the district

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court. 29 U.S.C. SS 1132(a)(1)(B) and 1132(c); 28 U.S.C.

SS 636(c)(3) and 1291. Also, Recupero does not dispute that the

judicial
review is to be "de novo" and that she has the burden, in

the circumstances of this case, of showing that the denial of her

claim violated the "arbitrary and capricious" standard.

(Appellant's Br. at 9, citing Firestone Tire and Rubber, Inc. v.

Bruch, 489 U.S. 101, 113 (1989); Pagan v. NYNEX, 52 F.3d 438, 442

(2d Cir. 1995) (judicial review of decision by pension plan

administrator
to deny long-term disability benefits, where pension

provisions gave the plan administrator broad discretion to

determine
eligibility issues and no material fact was genuinely in

dispute; "we are not free to substitute our judgment for that of

the NYNEX Committee as if we were considering the issue of

eligibility anew," and as if free to upset a reasonable

interpretation; court reviews only the decision of the NYNEX

Committee
and,
even
if
plan provisions were drafted by NYNEX, which

is an entity different from the NYNEX Committee, and were

ambiguous, the rule contra proferentum is inapplicable); Diaz v.

Seafarers Union, 13 F.3d 454, 456-57 (1st Cir. 1994) (trustees'

decision
denying retired seaman's claim for higher monthly pension

benefit
under Seafarers International Union's Pension Plan did not

improperly apply the trustee rules about "break in service" that

were promulgated pursuant to powers that the Plan instrument

granted
to
the
trustees); Stuart v. Metropolitan Life Ins. Co., 664

F. Supp. 619, 622-23 (D. Me. 1987) (declining to overturn

recoupment from worker, of sum equal to lump-sum Social Security

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payments, by insurer under Group Insurance Policy taken out by

Plan)).

Though
the
contentions of the parties about the scope of

the jurisdiction of the district court and this court differ, all

parties to this appeal urge us to take an exceedingly expansive

view of the scope of the courts' jurisdiction in reviewing ERISA

benefit
determinations.

Each party to this appeal, at least in the

alternative, urges us to hold that the district court had

jurisdiction not only to apply the arbitrary and capricious

standard of review to at least some aspects of the out-of-court

decisions, but also to make findings on material and genuinely

disputed
factual
issues
that allegedly should have been decided and

were not. In essence, we are asked to decide on the merits, or

direct the district court to decide on the merits, every material

factual
issue
as
to
which the out-of-court decisions under judicial

review are challenged. We are asked to exercise plenary

jurisdiction of the most expansive form.

We acknowledge that statements made about "de novo

review" in some passages from authoritative sources, standing

alone, may seem to support the parties' expansive jurisdictional

contentions.

We
conclude, however, that a close examination of the

entire array of relevant authority discloses that contentions of

the parties in this respect flow from a misreading of Firestone,

and a resulting misunderstanding of that case and its sequels.

Such a misreading was anticipated by Justice (then Chief Judge)

Breyer's
opinion
for
the
First Circuit in Diaz, 13 F.3d at 458. In

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that case an argument was made that a Plan amendment, granting

broad discretion to trustees, showed that the previous provisions

of
the
Plan
did not grant discretion that broad. The Diaz opinion

responds that the amendment "merely made express a power ...

plainly
implied
all
along," perhaps because the trustees "wanted to

play it safe in light of Firestone and the possibility that lower

courts would later misread it." Id.

The parties' expansive views about jurisdiction derive,

at
least
to
some extent, from their reading of what Firestone said

about "de novo review." In that case, the Court declared:

...
Consistent with established principles
of trust law, we hold that a denial of
benefits challenged under S 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.

489 U.S. at 115 (emphasis added).

In several significant respects, the case before us in

this appeal differs from Firestone. Nevertheless, in this case,

one
of
the
questions
we
must address may be stated in a generalized

way
in
exactly the same phrase as that used by Justice O'Connor in

describing the first of two questions before the Court in that

case: "First, we address the appropriate standard of judicial

review of benefit determinations by fiduciaries or plan

administrators under ERISA." 489 U.S. at 105.

The plans involved in Firestone were Firestone's three

"pension and welfare benefit plans for its employees: a

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termination pay plan, a retirement plan, and a stock purchase

plan." Id. "All three of the plans were ... governed (albeit in

different
ways)
by
ERISA." Id. In our case, also, the NET plan is

governed by ERISA, but in some respects by the same ERISA

provisions that applied to the Firestone plans and in other

respects
by
different
ERISA provisions. One difference is that the

Firestone

plans were "welfare and pension plans," and the NET plan

is
not.

Other differences emerge as we apply the reasoning of the

Court in Firestone to the present case.

Firestone determines that:

[f]or purposes of actions under
S 1132(a)(1)(B), the de novo standard of
review applies regardless of whether the
plan at issue is funded or unfunded and
regardless
of whether the administrator or
fiduciary
is
operating under a possible or
actual conflict of interest.

489 U.S. at 115. The role of the district court in applying the

"de novo standard" is affected, however, by the terms of the

particular plan at issue. For example, "if a benefit plan gives

discretion
to an administrator or fiduciary who is operating under

a
conflict
of
interest
that conflict must be weighed as a 'facto[r]

in determining whether there is an abuse of discretion.'

Restatement (Second) of Trusts S 187, Comment d (1959)." Id.

In this case, no party challenges the proposition that

NET plan documents did give some discretion, subject to judicial

review,
to
the EBC and EBRC. Nor does any party question that the

Committees
were acting on behalf of an entity that was, within the

meaning of the statutory phrase, an "administrator or fiduciary."

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Also,
we
do
not
understand the briefs of the parties as challenging

the proposition that the Committees had some responsibility, and

associated authority, with respect to "constru[ing] the terms of

the plan," as that phrase is used in Firestone, 489 U.S. at 115.

In any event, if this proposition is challenged, we conclude that

the challenge is without merit.

As
previously discussed, when the benefit plan gives the

administrator or fiduciary discretion to determine benefit

eligibility or construe plan terms, Firestone and its progeny

mandate a deferential "arbitrary and capricious" standard of

judicial review. Id. Thus, a deferential "arbitrary and

capricious" standard of review applies, even though the review is

also to be "de novo review" to assure compliance of the out-of-

court decisionmakers with standards of conduct analogous to those

applied
to
trustees
under judicially developed law (which Firestone

adopts to fill the gap left because "ERISA does not set the

appropriate standard of review for actions under S 1132(a)(1)(B)

challenging benefit eligibility determinations."). 489 U.S. at

109.

Because of the combination of similarities and

differences between the circumstances in Firestone and the

circumstances before us in this case with respect to the array of

different plan provisions and with respect to which among ERISA's

various
provisions apply, however, we must be especially observant

of
the
extent to which the Firestone "de novo standard of judicial

review"
requires de novo determinations by the reviewing court and

-14-

the extent to which, instead, it requires deference to an out-of-

court decision that is not "arbitrary and capricious."

An example of the kind of problems we must consider is

the determination of the meaning of provisions of the NET plan

regarding "eligibility for benefits" of various types -- in this

case, "Sickness Disability Benefits" and "Accident Disability

Benefits." Determining the meaning of such plan provisions

ordinarily
depends solely on deciding an issue of law with respect

to manifested meaning of relevant provisions of the plan. A

reviewing court, at least in the absence of plan provisions

explicitly declaring otherwise, has authority to decide that a

committee interpretation that varies from an unambiguously

manifested meaning is arbitrary and capricious, and must be

disregarded.
If, instead, the reviewing court determines that the

plan
provisions
are
ambiguous or otherwise unclear, in some respect

material
to
the outcome of the case, this determination of lack of

clarity
does
not necessarily lead to treating the issue of meaning

as one for decision by findings of fact in the district court

(either
by
a
jury
or
by
the district judge). Instead, interpretive

issues of this kind may be decided by the court as matters of law

are decided, or they may be partly decided in court and partly on

remand to the out-of-court decisionmakers, or applicable law may

require
some
other allocation of decisionmaking functions. We say

more
on
this
subject
in
Parts II.B and II.C of this opinion, below.

Summarizing, we conclude that in view of the Supreme

Court's
pronouncement
in
Firestone, it is no longer in dispute that

-15-

federal
courts
review
some ERISA claims de novo. Even when de novo

review is appropriate, however, it is often subject to some

limitations. Thus, the phrase "de novo review," as used in the

context of judicial review of out-of-court decisions of ERISA-

regulated plan administrators or fiduciaries does not mean that a

district
court has "plenary" jurisdiction to decide on the merits,

anew, a benefits claim.

We
use
the
term
"plenary" to describe jurisdiction of the

court
to
disregard completely an "out-of-court decision" the court

is reviewing and itself (with or without participation by a jury)

decide anew all questions of fact bearing on the merits of the

benefits claim.

B. Contrasting Court Roles Because of Limits on Jurisdiction

1. Limits Incident to Fiduciary Discretion
Under Terms of a Benefit Plan

With respect specifically to an issue regarding

eligibility of a claimant for benefits, precedents recognize that

district courts do not have expansive plenary jurisdiction to

decide the merits of a claim anew if "the benefit plan gives the

administrator or fiduciary discretionary authority to determine

eligibility for benefits or to construe the terms of the plan."

Bellino v. Schlumberger Technologies, 944 F.2d 26, 29 (1st Cir.

1991) (quoting Firestone, 489 U.S. at 115); see also Martin v.

Bissonette
,
1997
WL
280602, *12 (1st Cir. May 29, 1997) (remarking,

in the context of judicial review of state court determinations

bearing
upon
habeas
writs, "we find a myriad of situations in which

-16-

federal courts review others' decisions with a thumb on the scale

....[,] [t]he most conspicuous ... [being] judicial review of

agency adjudications"). Thus, if an ERISA out-of-court

decisionmaker
is given some discretion, the court reviews at least

some (if not all) aspects of the out-of-court decision only to

determine
whether
that
decision was arbitrary and capricious. This

key point expressed in Bellino is entirely consistent with many

earlier and later First Circuit decisions that recognize the

authority of the court to be less deferential, or not deferential

at
all,
of
out-of-court decisions by fiduciaries to whom a benefit

plan
did
not

grant discretionary authority to decide the matter at

issue. Smart v. Gillette Co. Long-Term Disability Plan, 70 F.3d

173, 181 (1st Cir. 1995) ("In ERISA cases ... court should

scrutinize an ostensible waiver with care in order to ensure that

it reflects the purposeful relinquishment of an employee's

rights."); Hughes v. Boston Mut. Life Ins. Co., 26 F.3d 264, 267

(1st Cir. 1994) ("Where, as here, the administrator of an ERISA-

regulated plan does not allege that it has discretion under the

plan to interpret the terms of the insurance policy, judicial

review of a denial of benefits entails no deference to the

administrator's explanation of the plan ...."); Diaz, 13 F.3d at

456-58 (arbitrary and capricious standard of review applied to

trustee rules promulgated pursuant to "broad, discretionary

authority" granted to the trustee in the trust instrument);

Rodriguez-Abreu

v.
Chase
Manhattan Bank, N.A., 986 F.2d 580, 583-84

(1st Cir. 1993) (de novo standard properly applied where "the

-17-

relevant
plan
document
did not grant discretionary authority to the

Plan Administrator and the Named Fiduciaries did not expressly

delegate
their
discretionary authority to the Plan administrator");

Allen v. Adage, Inc., 967 F.2d 695, 697-98 (1st Cir. 1992) (where

nothing
in
the Plan indicates that another approach is to be used,

it
is
appropriate for a reviewing court to afford de novo review).

2. Jurisdictional Limits
in Federal Courts Generally

An inquiry that is in essence jurisdictional is an

appropriate
early step toward full understanding of the meaning of

the constitutional, statutory, and decisional mandates regarding

the scope of the authority of federal courts in a case involving

judicial review of an out-of-court claims decision.

Article III courts and other federal courts are not

courts
of
general jurisdiction. See, e.g., Owen Equip. & Erection

Co.

v.
Kroger
, 437 U.S. 365, 374 (1978). Even when some source of

subject-matter jurisdiction appears of record (by reason of

complete diversity of citizenship, for example, or the dependence

of a claim on some federal question), federal courts are not

automatically
authorized to adjudicate every kind of related claim

a
party
wishes to have decided. Rather, except as to instances of

jurisdiction over claims of unconstitutionality of legislation,

limits on the scope of jurisdiction of federal courts (other than

the Supreme Court of the United States) are partly statutory.

E.g.
,
Kokkone
n v. Guardian Life Ins. Co. of America, 511 U.S. 375,

377 (1994).

-18-

A
central
characteristic of federal jurisdiction is that

it tends to be claim-based, and thus specific to claims, rather

than case-based, and thus general to an entire case if the court

has jurisdiction over any claim. See American Law Institute,

Federal
Judicial Code Revision Project, Tentative Draft No. 1, 33-

34
(Apr.
8,
1997)
(Commentary). The Reporter for this ALI Project,

Professor John B. Oakley, in an introductory Memorandum to the

Members of the Institute, identifies as an organizing principle

used from an early stage of the history of this ALI Project, the

observation that:

subject-matte
r jurisdiction of the federal
district court operates on a 'claim-
specific' basis that is concealed and
confused
by
the 'action-specific' language
of the basic statutory grants of original
jurisdiction to the district courts.

Id. at xvii. He adds:

.... Although the basic statutes purport
to confer federal jurisdiction over
particular types of 'civil actions,'
'cases,'
'proceedings,' and the like, they
have
been
administered on a claim-specific
rather than action-specific basis, with
the law of supplemental jurisdiction
functioning in the background as the
mechanism for determining which claims
joined to a particular action that do not
directly involve the kinds of issues or
parties within the scope of Article III
are nonetheless within federal judicial
power because of their relationship to
other claims involving issues or parties
that fall within Article III's criteria.

Id.

at
xviii. We interpret "action," as used both in this passage

and
in
a
passage
of
the
F
irestone opinion, quoted above, as meaning

"civil
action," not "cause of action." Professor Oakley adds that

-19-

these background themes are a part of the complex "structure of

federal jurisdiction," commonly recognized as involving

constitutiona
l, statutory, and decisional "tiers" of authorization

and limitation. Id. at 36-45.

We
conclude
that
a
theme
of claim-specific limitations on

the scope of federal judicial power extends also to a distinction

between
plena
ry jurisdiction, in a broad sense including authority

to decide anew on the merits, and a more confined type of

jurisdiction over a specific type of claim within the court's

jurisdiction.
A district court's subject-matter jurisdiction over

a claim may be solely for judicial review of an out-of-court

decision on the merits of the claim. This kind of limitation is

primarily
statutory
in
origin. It may be implicit, for example, in

a statutory authorization for judicial review over out-of-court

substantive decisions (of many different types) made by

governmental agencies, under provisions of the Administrative

Procedure
Act,
5
U.S.C.
S 706(2)(A). Also, this kind of limitation

may be implicit in statutory provisions for judicial review of

special
kinds
of
out-of-court substantive decisions made by private

decisionmakers such as those acting under employee benefits plan,

making decisions reviewable in this case under ERISA, 29 U.S.C.

SS 1132(a)(1)(B) and 1132(c).

In a regime characterized in large part by limited

jurisdiction,
a
statutory authorization for judicial review of out-

of-court decisions does not imply authorization for a court to

expand its jurisdiction to a plenary authority to decide, itself,

-20-

all genuinely disputable factual issues decisive of the merits of

claims. This point applies both to a court's acting on its own

initiative
and
to
a
court's acting upon a consensual request by the

parties that a court accept an expansion of its jurisdiction. We

say more about consensual requests in Part II.E, below.

Also,
to
understand
fully a source of authority regarding

the scope of a court's jurisdiction when judicially reviewing an

out-of-court claims decision, one must take account of the

distinctive nature of a court's role in judicial review, in

contrast
with
the
role
of a court in other civil actions generally.

A civil action for judicial review of an out-of-court

decision is fundamentally different from a paradigm civil action

asserting tort, contract, or property claims, or even alleged

rights to equitable or declaratory relief. In cases of judicial

review,
ordinarily no right to jury trial is involved, and no need

or
authority
exists to make factual findings of the kind regularly

made by a jury, or by the trial judge in a nonjury trial.

If a need exists for deciding disputable factual issues

in
the
course
of
judicial review of an out-of-court decision on the

merits
of
a
benefits claim, typically that need is associated with

a
dispute
about
the
"record." We turn next to considering disputes

of this kind.

C. Deciding Disputes About the "Record"

1. The Contrast Between Disputes
About the "Record" and Disputes
About the "Merits"

-21-

Deciding disputable factual issues about what is or is

not properly a part of the "record" for judicial review is

fundamentally different from deciding disputable factual issues

going to the merits of a benefits claim.

The out-of-court decision under judicial review in this

case was, or at least in ordinary circumstances should have been,

a
decision
on
the merits. The standard of judicial review of that

decision, in whatever way it may be phrased and described, is to

some extent deferential in the sense that the reviewing court is

not
to
set
aside
a
factual finding of historical fact for which the

record on which the decision was made contained adequate support.

Ordinarily the deference to a decision on the merits

extends also to deference to an evaluative inference on which the

decision
on
the merits depends, at least unless the inference is a

mixed-legal-factual inference. Just as appellate courts tend to

give
somewhat
less
deference to a trial court's mixed-legal-factual

inference -- see, e.g., AIDS Action Comm. of Mass., Inc. v.

Massachusetts Bay Transp. Auth., 42 F.3d 1, 7 (1st Cir. 1994)

(appellate court accords significant deference to trial court's

factual determinations and most of its resolutions of mixed

fact/law issues, letting them stand unless they are clearly

erroneous, but engages in de novo review of trial court's

application of a First Amendment standard to the facts of the

particular
case); In re Extradition of Howard, 996 F.2d 1320, 1328

(1st Cir. 1993) ("The standard of review applicable to mixed

questions
usually
depends upon where they fall along the degree-of-

-22-

deference
continuum;
the
more fact-dominated the question, the more

likely it is that the trier's resolution of it will be accepted

unless shown to be clearly erroneous.") -- so likewise a court

engaged
in
judicial review of an out-of-court decision may tend to

give less deference to an inference-based decision that appears

possibly to have been influenced by a mistake about the existence

or
meaning
of an applicable legal rule or about how the legal rule

applies in the particular instance. In applying such a less

deferential
standard, however, a reviewing court is not authorized

to
make,
itself, a new decision replacing every factual finding of

the out-of-court decisionmaker that goes to the merits and is

challenged. The judicial review of the decision on the merits

continues to be to some extent deferential.

In contrast, the trial judge's decision of a dispute

about the record is typically not deferential.

A factual dispute about the record of an out-of-court

decision of a claim under an employee benefits plan may involve a

contention, by either party, that the "record" as produced by the

decisionmaking entity contains documents or descriptions of non-

documentary
evidence not considered before the challenged decision

was made, or documents or descriptions of evidence not properly

considered (which one party or the other asks the trial court to

"strike" or otherwise treat as irrelevant to judicial review).

Obversely,
the
dispute
may involve a contention that the record for

the out-of-court decision should have included, and did not,

-23-

additional materials (which one party or the other asks the trial

court to rule must be taken into account).

If, after taking such a supplementation of the "record"

into account, the trial judge determines that, by reason of

departures
from fair process, the challenged out-of-court decision

cannot be affirmed, one obvious possibility is an order of remand

for
reconsideration by the committee or other entity that made the

procedurally flawed out-of-court decision.

That form of remedy fits. Concerning a court's

obligation generally, in framing relief, to fashion a remedy that

fits and does not overburden a party, see, e.g., California v.

Yamasaki
,
442 U.S. 682, 702 (1979) (injunctive relief should be no

more
burdensome
to
the
defendant than necessary to provide complete

relief
to
the plaintiffs); E.E.O.C. v. Astra U.S.A., Inc., 94 F.3d

738, 746 (1st Cir. 1996) (same).

First,
the
remedy for the departure from fair process is

easily framed to fit within the authorized scope of judicial

review.

Second,
the
nature of the remedy matches the nature of the

error.

Moreover,
if
the
error was solely an error of the committee

or
other
deciding entity, any other form of order is likely not to

fit
because
it tends to place an undeserved burden or disadvantage

on one party or the other.

We leave to be considered in Parts III.C and III.D of

this opinion a defense contention in this case that if the record

failed to contain evidence that would have supported plaintiff's

-24-

claim, plaintiff failed to use her available opportunities to

proffer more evidence.

To complete an explanation of the contrast between

deciding
disputes about the merits and deciding disputes about the

record, we must take account of legal authority bearing on who is

to decide a dispute about the record and by what procedures.

2. Who Decides?

As to who is to decide a dispute about the record, we

canvass three possibilities (and variations on each) that are

apparent in this case: (1) the out-of-court decisionmaker on

remand from the district court; (2) the court or courts where

judicial
review
occurs;
and (3) a jury (or trial judge as finder of

fact in a nonjury proceeding), guided on the law by the trial

judge's rulings, those rulings being subject to correction on

appeal.

The first possibility (remand to the out-of-court

decisionmaker) may sometimes be appropriate, but is likely to

result
in
delay,
and
perhaps very extended delay and expense if the

dispute is not resolved to the satisfaction of all interested

parties,
and
promptly. That kind of delay is inconsistent with the

objective
of
providing workers and their dependents an inexpensive

and
expeditious method of resolving disputes over benefits claimed

under an employee benefits plan. This is one of the multiple

objectives underlying ERISA. See, e.g., Quesinberry v. Life Ins.

Co. of North America, 987 F.2d 1017, 1023-1025 (4th Cir. 1993)

-25-

(citing Perry v. Simplicity Eng'g, 900 F.2d 963, 966 (6th Cir.

1990)).

The availability of the third possibility -- jury trial

--
in
ERISA
cases is a matter on which many courts have spoken but

in ways that may reasonably be understood as creating some

unresolved conflicts. E.g., compare Turner v. Fallon Community

Health Plan, Inc., 953 F. Supp. 419 (D. Mass. 1997), with Padilla

De
Higginbotham v. Worth Publishers, Inc., 820 F. Supp. 48 (D.P.R.

1993). We do not speak further to this conflict in this opinion,

for
the
reason
that
in
any event the record before us fails to show

any disputable issue of fact appropriate for submission to a jury

in this case, as we explain below.

The use of a jury to resolve disputes about the record

for
judicial
review
of
out-of-court decisions in this case would be

fundamentally
inconsistent with the regime of limited jurisdiction

of federal courts. Jurisdiction for judicial review cannot be

expanded
to
encompass a jury role inconsistent with limitations on

the
court's
jurisdiction. The jury is an arm of the court, and an

arm that performs only a designated court function. In a case

before the court solely for judicial review of an out-of-court

decision, the jurisdiction of the court as a whole, including the

jury,
is
limited
to
the
function of determining whether the out-of-

court decision is to be affirmed, or is to be set aside as

arbitrary
or
capricious, or is to be reconsidered by the committee

or other entity designated to decide the merits.

-26-

A recent decision of the Supreme Court in a very

different
context
helps
to explain both the rejection of this third

possibility and the distinctive nature of the role of the trial

judge in deciding disputes about the record as distinguished from

disputes about the merits. That context involved a dispute about

who decides an issue of interpretation of a patent claim as to

which reasonable persons familiar with both the intricacies of

patent law and all the relevant circumstances of the particular

case might differ. Justice Souter, in the opinion of the Court,

observed that a trial judge is better positioned than a jury to

decide this kind of factual issue. Markman v. Westview

Instruments,
Inc.
,
116
S. Ct. 1384, 1387 (1996) ("Since evidence of

common law practice at the time of the Framing does not entail

application of the Seventh Amendment's jury guarantee to the

construction
of
the
[patent] claim document, we must look elsewhere

to
characterize this determination of meaning in order to allocate

it as between court or jury. Existing precedent, the relative

interpretive skills of judges and juries, and statutory policy

considerations all favor allocating construction issues to the

court.").

Much
of
the
reasoning
of
the Court in Westview applies to

the
role
of
a
trial
judge in deciding disputes about the record for

judicial
review. Compared with judges, jurors typically have less

experience
and training relevant to competence to review decisions

of
others
with
an
appropriate degree of deference while at the same

time assuring no misunderstanding or misapplication of governing

-27-

law.

And,
historically,
juries have had no part in judicial review

of out-of-court decisions.

Concerning
factors bearing upon who is better positioned

to decide, in determining whether responsibility for deciding a

factual
dispute
of
a
distinctive kind should be allocated to juries

or instead to judges, the Westview opinion cited other Court

decisions made in other contexts, including Miller v. Fenton, 474

U.S. 104, 114 (1985) (when an issue "falls somewhere between a

pristine
legal standard and a simple historical fact, the fact/law

distinction at times has turned on a determination that, as a

matter of the sound administration of justice, one judicial actor

is better positioned than another to decide the issue in

question."). Other decisions in the 1980s and 1990s have added

more illustrations that, by analogy, reinforce the conclusion we

reach
in
this case about the role of the judge in judicial review.

See, e.g ., Thompson v. Keohane, 116 S. Ct. 457 (1995) (habeas

petitioner serving a sentence under a state conviction had

confessed, during a two-hour tape-recorded session at the Alaska

state trooper headquarters, to killing his former wife; federal

district
court denied his petition for habeas relief on the ground

that
the
trooper
had
obtained his confession without giving Miranda

warnings; the Ninth Circuit affirmed on the ground that the state

court's ruling that the accused was not "in custody" for Miranda

purposes was a "fact" determination as to which S 2254(d)

establishes a presumption of correctness; this "Court has

classified
as
'factual
issues' within S 2254(d)'s compass questions

-28-

extending beyond the determination of 'what happened'"; "[t]his

category notably includes: competence to stand trial; and juror

impartiality"; "[w]hile these issues encompass more than 'basic,

primary,
or
historical facts,' their resolution depends heavily on

the trial court's appraisal of witness credibility and demeanor";

"[t]his
Court has reasoned that a trial court is better positioned

to make decisions of this genre, and has therefore accorded the

judgment
of
the jurist-observer 'presumptive weight'"; even so, we

independently review the state "in-custody" determination because

"[c]lassifying 'in custody' as a determination qualifying for

independent review potentially may guide police, unify precedent,

and stabilize the law"); Bose Corp. v. Consumers Union of United

States,
Inc.,
466 U.S. 485, 501 n.17 (1984) ("A finding of fact in

some
cases
is inseparable from the principles through which it was

deduced. At some point, the reasoning by which a fact is 'found'

crosses the line between application of those ordinary principles

of logic and common experience which are ordinarily entrusted to

the finder of fact into the realm of a legal rule upon which the

reviewing
court
must
exercise its own independent judgment."). See

also U.S. Term Limits, Inc. v. Thornton, 115 S. Ct. 1842, 1875

(1995) (Thomas, J., dissenting, joined by Rehnquist, C.J.,

O'Connor, J., and Scalia, J.) (citing Bose and declaring: "In

certain areas, indeed, this Court apparently gives quite little

deference to the initial factfinder, but rather 'exercise[s] its

own
independent
judgment' about the factual conclusions that should

be drawn from the record.").

-29-

3. Methods of Deciding Generally

We turn next to considering how a trial judge may go

about performing the function of deciding disputes about the

record.

(a) Non-jury Trial

Precedents
support a district court's holding a non-jury

"trial" for distinctive and limited purposes associated with

judicial
review. An example is an opinion of Justice (then Judge)

Breyer for the First Circuit in the context of judicial review of

a decision of a governmental agency. E.g., Valley Citizens for a

Safe Environment v. Aldridge, 886 F.2d 458, 460 (1st Cir. 1989)

(Breyer, J.) ("It could happen that a particular instance of

judicial
review
of
an
EIS raises a 'genuine' and 'material' dispute

of
facts
that requires a trial: Did the agency know, for example,

about some important matter that the EIS ignored? ... However

desirable this kind of evidentiary supplementation as an aid to

understanding highly technical, environmental matters, its use is

discretionary
with
the
reviewing court.") (citations omitted). The

practice seems equally applicable to judicial review of out-of-

court decisions of private actors, such as the Committees whose

decisions are under judicial review in this case.

Even
when
a
district
court proceeds with a non-jury trial

of this kind, or a proceeding to take "evidence on motion," and

determines that it is necessary to make some finding with respect

to some historical fact (or to draw some reasoned inference from

evidence) as to which a genuine dispute exists, ordinarily that

-30-

factual
finding
made
by
the trial judge concerns matters bearing on

fairness
of
the
process
by which the out-of-court decision was made

and not the merits of the claim. A determination by a court that

it has jurisdiction to perform this distinctive function does not

imply
that
it
must
also
have jurisdiction to find facts relevant to

the merits.

(b) Evidence on Motion

Also, with respect to preparing for ruling on a pending

motion,
a
trial judge has, under Federal Rules, explicit authority

to convene a kind of evidentiary proceeding that differs from

taking evidence at trial under Federal Rule of Civil Procedure

43(a).

Evidence on Motions. When a motion is
based
on
facts not appearing of record the
court may hear the matter on affidavits
presented by the respective parties, but
the court may direct that the matter be
heard wholly or partly on oral testimony
or deposition.

Fed. R. Civ. P. 43(d). This procedural authority, however,

regarding
the manner of taking evidence, does not expand the trial

court's jurisdiction. Rules of procedure apply to how the court

may go about performing whatever function and role it is assigned

by constitutional, statutory, and decisional law governing the

court's jurisdiction.

Federal
Rules
of
Civil
Procedure do not purport to expand

the court's jurisdiction from a role of judicial review to a role

of plenary adjudication. This is a proposition inherent in the

-31-

general aim that a court system's procedural rules be focused on

fair
and
efficient procedures rather than either jurisdictional or

substantive law. And it is a proposition inherent in the claim-

based rather than case-based theme of federal subject-matter

jurisdiction, explained in Part II.B above.

(c) An Issue on Which Decision is Reserved

We have not decided, and need not decide today, whether

a court, when reviewing a benefits determination, must restrict

itself to the "record" as considered by the decisionmaker who

interpreted the employee benefits plan. See Mongeluzo v. Baxter

Travenol Long Term Disability Ben. Plan, 46 F.3d 938 (9th Cir.

1995);
Quesinberry

v.
Lif
e Ins. Co. of North America, 987 F.2d 1017

(4th Cir. 1993); Luby v. Teamsters Health, Welfare, and Pension

Trust Funds, 944 F.2d 1176 (3d Cir. 1991); compare Davidson v.

Prudential Ins. Co. of America, 953 F.2d 1093, 1095 (8th Cir.

1992).

Rather, we simply emphasize for clarity that making

factual findings about what is or is not properly a part of the

"record" for judicial review is fundamentally different from

asserting plenary authority to decide the merits of a benefits

claim.

As stated above, a trial court may take "evidence on

motion"
or
convene
a
nonjury "trial" in order to develop a "record"

suitable
for
judicial
review of a challenged out-of-court decision.

Also, a court may convene either of these kinds of proceedings to

-32-

determine whether the "record" on which the out-of-court decision

was made is complete and, if not, what supplementation is

appropriate.
That the trial court has some range of discretion in

this respect is reinforced by analogy to precedent. For example,

a
Fourth
Circuit decision, calling attention to limitations on the

district
court's discretion, also declares that the court has some

range of discretion to take evidence.

[W]e
continue to believe that the purposes
of ERISA described in our Berry opinion
warrant significant restraints on the
district
court's ability to allow evidence
beyond what was presented to the
administrator. In our view, the most
desirable approach to the proper scope of
de novo review under ERISA is one which
balances
these multiple purposes of ERISA.
Consequently, we adopt a scope of review
that permits the district court in its
discretion to allow evidence that was not
before the plan administrator. The
district court should exercise its
discretion, however, only when
circumstances clearly establish that
additional evidence is necessary to
conduct an adequate de novo review of the
benefit decision.

Quesinberry, 987 F.2d at 1025.

4. Comparison with Summary Judgment Procedures

Proceeding in the way just suggested may be better, for

very pragmatic reasons, than hearing and deciding a motion or

cross-motions for summary judgment. See, e.g., Charlton Memorial

Hosp. v. Foxboro Co., 818 F. Supp. 456 (D. Mass. 1993). Summary

judgment procedures were designed primarily for prompt and fair

determination of factual issues of the kind that go to the merits

-33-

and would be decided by the jury in a jury trial if genuinely in

dispute. Under summary judgment procedure, the movant has the

opportunity
and
burden
of making a showing that no material factual

issue is genuinely in dispute. The opponent has the opportunity

and
burden
of proffering admissible evidence sufficient to support

a factual finding favorable to the challenged claim, Fed. R. Civ.

P.
56.

Under Rule 56 and local rules implementing its mandates, a

litigant
who
fails
to
take advantage of its opportunity by a timely

proffer of evidence may be procedurally precluded from doing so

later
on
grounds
concerned with fair process. E.g., Mas Marques v.

Digital Equip. Corp., 637 F.2d 24, 29-30 (1st Cir. 1980).

Invoking summary judgment procedures for factual issues

of
the
kind
that
do
not
go to the merits and would not be submitted

to a jury in any event is likely to produce misunderstanding and

confusion
about
when
and
how the factual dispute is to be resolved.

See Charlton Memorial Hosp., 818 F. Supp. at 53-54. If the trial

judge
needs
to hear and consider evidence to be prepared to decide

the dispute over a factual issue bearing upon the "record" for

judicial
review,
Rule
56
constraints do not apply, though the trial

judge
has
discretion
to
invoke like procedures. Thus, no formal or

procedural barrier exists to the trial judge's deciding disputed

factual issues about "the record," in proceedings upon a pretrial

motion rather than at trial. Such a pretrial motion need not be

labeled as one for summary judgment. If giving the motion that

label leads trial lawyers or the trial judge to assume that the

judge
can
never decide before trial if a finding with respect to a

-34-

genuinely disputable fact must be made, this flawed assumption

reflects
a
misunderstanding that is likely to create confusion and

delay. If, in any event, the decision of a factual dispute about

the record is to be made by the judge, not by a jury, the trial

judge
is
not
required
to
await trial. Instead, the trial judge may

exercise discretion about the method of proceeding, taking

advantage of the opportunity for flexibility about scheduling

hearings in preparation for the decision about the record.

5. Providing for Discovery
and Proffers of Relevant Evidence

Of
course,
the
trial
judge should (and absent some ground

of preclusion, must), before deciding a disputable factual issue

that
may
be
decisive of a dispute about the "record", give parties

a fair opportunity to discover and present relevant evidence

bearing upon the issue. Ordinarily it is a good practice to do

this by an order of record that clearly specifies the time within

which any proffer is to be made, and thus reduces any risk of

misunderstanding.

Once
this
requirement
of
fair process has been satisfied,

ordinarily it is in the public interest and the interest of the

parties
that
factual
disputes of the kind that are to be decided by

the trial judge, and in no event by a jury, be decided sooner

rather
than
later. Exceptional circumstances of a particular case

may
make
deferral appropriate, however, and this opinion is not to

be interpreted as stating any hard-edged rule of practice in this

respect.

We
have
called
attention to these matters in this opinion

-35-

solely
for
the purpose of clarifying the nature of judicial review

in respects that appear to have generated misunderstandings.

D. Independent Claims and Overlapping Elements

1. Various Types of Independent Claims

For completeness, we take note of another source of

potential misunderstanding, even though it does not apply to this

case. In some instances, an independent claim over which a

district court does have plenary jurisdiction for trial on the

merits may include, among the elements of that claim or a defense

to
it,
a
factual issue that is the same or almost the same as some

factual
element of a claim for benefits under an employee benefits

plan, decisions regarding which are subject to judicial review

rather than trial on the merits. In such an instance, the court

has jurisdiction to try the independent claim, even though the

court's role in relation to the plan benefits claim is limited to

judicial review. Some potential illustrations are identified

immediately below.

2. Forbidden Retaliatory Motive
or Other Discriminatory Animus

An
independent
claim
may
arise when a party contends that

gender
or
racial animus was a motive for termination of employment

in retaliation for previous protected conduct of the employee in

asserting that conditions of employment were discriminatory. If

(1) the party making such a contention demands a jury trial and

proffers
sufficient evidence to show a genuine dispute of material

-36-

fact, and (2) jury trial of the independent claim is appropriate

under the law governing trial of that claim, the trial judge has

two very distinct and materially different responsibilities. One

is to determine, "as a matter of law," whether the proffered

evidence is sufficient, if credited by the jury, to support the

independent
claim of discriminatory termination of employment and,

if so, to submit that claim to the jury by an appropriate charge

and verdict form. The trial judge's other responsibility is to

perform the function of judicial review of the challenged out-of-

court decision of the claim for benefits under the employee

benefits plan. For the reasons explained in Parts II.B and II.C

above, this responsibility continues to be performed without

participation of the jury, even though the independent claim that

is before the court in the same civil action is tried to a jury.

3. Violation of Obligation
to Provide Plan Information

Another
kind
of
claim
that, in appropriate circumstances,

might
be
treated
as
an
independent claim is a claim of violation of

the
ERISA
requirement of production of plan information, 29 U.S.C.

S 432(c). We do not probe this possibility in this case, because

Recupero
has
not
claimed
a violation of this provision; instead, as

explained in Part III.D of this opinion, below, she has claimed a

violation of notice requirements, with respect to her opportunity

to challenge a committee decision, under 29 U.S.C. S 1133.

-37-

4. Overlapping Components of an Independent Claim
and a Claim Under Judicial Review

It is possible that in some circumstances some factual

component of an independent claim, or the measure of recovery if

that claim is proved, will closely coincide with a component

decisive of the merits of the out-of-court decision that is under

judicial review. If this happens, a host of debatable issues may

exist concerning claim or issue preclusion, the right to jury

trial, and procedural rules and practices bearing on case

management in the district court.

No
independent
claim
was
alleged in the complaint in this

case,
however, and we do not undertake to address any of the added

complexities
that
arise
from joinder of a claim for judicial review

and
some
independent claim. This case presents only a question as

to scope of jurisdiction in a more typical setting of judicial

review of an out-of-court benefits decision.

E. Consensual Arrangement for Claims Determinations

In this case, the parties assigned to the EBC in the

first instance, and to the EBRC in the second instance, the

function
of
making decisions about the merits of individual claims

to
benefits
under
the
plan. This kind of consensual arrangement is

legally permissible. See Firestone, 489 U.S. at 115.

Here,
however,
each
party is in essence asking this court

to construe plan provisions as consensually overriding

constitutional and statutory limits on the jurisdiction of the

courts,
or
to hold that an opposing party is estopped or precluded

-38-

from asserting that the plan provisions do not authorize plenary

consideration of plaintiff-appellant's claims on the merits.

Included is the request that the district court make factual

findings
on
any
genuinely disputable issues material to the outcome

on the merits.

When the law authorizes parties to make their own

consensual
arrangement
for deciding individual claims for benefits,

ordinarily the parties may prescribe their own set of rules about

how decisions are to be made, as long as they do not transgress

prescribed legal limits on the scope and nature of consensual

arrangements. E.g., Mitsubishi Motors Corp. v. Soler Chrysler-

Plymouth, Inc., 473 U.S. 614, 628-39 (1985)(parties' agreement to

arbitrate anti-trust claims is enforceable absent a showing of

circumstances
that would warrant setting aside the forum selection

clause). If, however, the parties attempt by their consent to

expand the scope of a district court's jurisdiction beyond that

authorized by law, their attempt is legally unenforceable in this

respect for the reasons explained in Parts II.B and II.C of this

opinion.

F. Summary of Conclusions Regarding Scope of Jurisdiction

The
constitutionally
and
statutorily limited jurisdiction

of federal courts cannot be expanded by a stipulation or joint

request of the parties that the courts become their privately-

appointed alternative to the method of adjudication available to

them under law. Ordinarily, claims benefit determinations of

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consensually designated private decisionmakers on whom plan

provisions confer authority to exercise discretion are subject to

judicial
review
under
an
arbitrary and capricious standard, but not

to plenary determinations on the merits.

In
contrast,
the decision of disputes about the "record"

for
judicial
review
ordinarily are within the scope of the district

court's
jurisdiction,
and the trial judge's role ordinarily extends

to deciding factual as well as legal components of such a dispute

about the "record."

Independent claims in addition to a claim for judicial

review may present added complexities, but we need not and do not

address these matters because no independent claim is asserted in

this case.

With these fundamental characteristics of the legal

system as background, one may locate the legal and factual issues

of
a
particular
civil
action in the larger legal landscape. In the

remainder of this opinion, we consider each of the material

contentions
of the parties regarding the precise way in which this

controversy has proceeded both before and after the filing of the

civil action in the United States District Court for the District

of Massachusetts.

III. Particular Contentions in This Case

A. Introduction

The
parties
to
this
appeal have acknowledged, and we have

noted, that some aspects of the out-of-court decisions of the NET

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Committees must be judicially reviewed under an "arbitrary and

capricious" standard. Other aspects of the challenged decisions

must be decided either as matters of law are decided or under a

standard less deferential than an "arbitrary and capricious"

standard. Also, as proceedings have developed both before and

after the filing of the civil action, some issues earlier in

controversy have become moot or an opportunity for challenge has

been lost under rules of procedural preclusion.

In this Part III, we discuss separately these different

kinds of issues, beginning with asserted violations of the

applicable "arbitrary and capricious" standard.

B. Alleged Violations of "Arbitrary and Capricious" Standard

Having determined that the role of the courts with

respect to typical claims under an employee benefits plan is

jurisdictionally limited to review, if a plan administrator or

fiduciary
was given discretion to decide particular claims, we now

consider
whether Recupero has shown that the Committees created to

decide claims of the type at issue in this case acted arbitrarily

and capriciously. Recupero argues:

Ms. Recupero was seriously injured in an
elevator accident at her workplace while
she was on-duty and being paid by the
company. At the time of her accident she
was in the course of her employment and
was
under
the direction and control of her
employer. The only reasonable meaning of
the Plan language is that Ms. Recupero
sustained
an
"accident" and not "sickness"
and
it
was
arbitrary and capricious of the
Plan to deny her "accident" disability
claim.

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(Appellant's Br. at 6-7.) Recupero contends that she was:

... en route to obtain coffee in the
building lobby at the direction of her
supervisor on company time at the time of
the accident. She made ... [an]
adjustment [from her usual time for a
break] at the direction of her supervisor
for
the
sole
purpose of furthering, and in
direct
connection with, the performance of
her duties to enable her to establish a
conference call with a customer at a time
when she would otherwise have been away
from her usual work station.

(Id.

at
13).
Thus, she argues, she was "on-duty" at the time that

she sustained her injury, and is entitled to "accident benefits."

(Id. at 14.)

The
defendant-appellee counters that "[i]t is undisputed

that
Recupero
was
injured during break time, after leaving her work

station while on an elevator en route to a coffee shop."

(Appellees' Br. at 7.) This fact, NET contends, shows that

Recupero
was
not
"solely" and "directly" engaged in the performance

of duties at the time of the injury. (Id.) Thus, the defense

argument goes, the Committees did not act arbitrarily and

capriciously in determining that Recupero was not entitled to

"accident benefits." (Id.)

As already noted, the district court ruled in favor of

NET
on
this
issue.

The
district court rejected Recupero's argument

that, because she was taking her break at the request of her

employer, her injuries should entitle her to "Accident Disability

Benefits." The court stated:

Recupero's argument is predicated on the
assertion that she was taking her coffee

-42-

break a half hour early at the request of
her supervisor in order to accommodate a
job-related phone call which she was
expecting. Such a fact is not properly
before the court for two reasons. First,
the
court,
when applying the arbitrary and
capricious standard of review, may only
review the actions of the fiduciary in
light of the evidence which was before it
at the time it made its decision. It
does not appear that the NET Benefits
Office, the EBC or the EBCRC had the
benefit of considering this fact. (#20,
Exh.
2,
Affidavit of Richard Waldron, q7).
Second, this is a "mere allegation"
unsupported
"by affidavits or as otherwise
provided" under Fed. R. Civ. P. 56(e)
since Recupero offers no evidence to this
court to support this contention.

(Recupero v. New England Telephone & Telegraph Co., Civil Action

No. 94-12266-MLW, Memorandum and Order, Sept. 20, 1996 at 9 n.5.)

The
EBC
and
the EBRC decided that Recupero qualified for

"Sickness
Disability Benefits" only. The district court correctly

concluded that this decision was not arbitrary and capricious.

Three lines of reasoning support this conclusion.

First. The court below correctly determined that

Recupero had not proffered evidence before the EBC or EBRC of any

irregularity in the break from work that she was on when the

incident occurred. (Id.) Nothing in the record before the

Committees, the record before the district court, or the record

before
this
court
suggests otherwise. If Recupero did not proffer,

before the Committees, factual support for a contention that the

circumstances of the incident brought it within the meaning of an

"accident"
because she was taking her break at a specific time, at

the
behest
of her supervisor, in order to allow her to perform her

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duties
at
a
later
time,
then the record before the EBC and the EBRC

was not sufficient to support a court determination, on judicial

review, that the decisions of the Committees were arbitrary and

capricious.

Second.

Despite
the
difficulties of drawing bright lines

of
separation and fitting every conceivable circumstance of injury

into either the category of "accident" or the category of

"sickness,"
the
Committees did not act arbitrarily and capriciously

when interpreting "on-duty" to exclude break time, regardless of

the nature of any reason or reasons for the break. A plan may

prescribe a definition of "on-duty" that takes into account the

myriad
of
possible
ways
in which and times at which an employee may

be injured. A plan that does so may require of the out-of-court

decisionmakers, in deciding a particular claim, that they make an

evaluative determination rather than a rigorously logical

application of bright-line rules that leave no choice, even

reasoned
choice, in arriving at a decision concerning the merit of

a particular claim.

It is true that in the context of trial of a paradigm

tort
or
contract claim, "evaluative issues" often go to a jury for

decision. See, e.g., Springer v. Seamen, 821 F.2d 871, 876 (1st

Cir.
1987)
(in tort law, not only ordinary fact questions but also

"evaluative applications of legal standards (such as the legal

concept of 'foreseeability') to the facts are properly jury

questions"), cited with approval in Dedham Water v. Cumberland

Farms Dairy, 972 F.2d 453 (1st Cir. 1992).

-44-

In the context of judicial review of out-of-court

decisions, however, if employee benefit plan provisions confer

discretion on an out-of-court decisionmaker, ordinarily the

evaluative determinations of that decisionmaker are judicially

reviewed under a deferential standard, as explained in Parts II.B

and II.C of this opinion.

Section
5(5)
of the plan before us in this record is one

of the provisions the interpretation of which was challenged in

this case. It provides:

Relationship of Injury to Employment.
Accidental
injuries shall be considered as
arising out of and in the course of
employment only where the injury has
resulted solely from accident during and
in direct connection with the performance
of duties to which the employee is
assigned
in
the service of the Company, or
was assigned by the Former Affiliate or
Associated or Allied Company from which
the employee was reassigned as of January
1, 1984, or which he is directed to
perform by proper authority, or in
voluntarily protecting the Company's
property or interests. There must be a
clear and well-established history of the
cause and circumstances of injury
accidentally inflicted, which must be
sufficient to produce the alleged injury,
and there must be satisfactory evidence
that such injury renders the employee
unable to perform his duty in the service
of the Company.

(Appellees' Br. at 59-60) (emphasis added). In view of the

emphasized phrase in this passage quoted from the plan, we cannot

say
that
the
district
court erred in its interpretation of the plan

as supporting NET's position in this appeal.

-45-

Third.

Recupero apparently bases her argument, in part,

on an assumption that because she was eligible for worker's

compensation,
her injury should be treated, as a matter of law, as

having occurred "on-duty." This assumed premise is erroneous, as

a matter of law. Neither ERISA nor any other source of authority

declares that the standards of eligibility for workers'

compensation benefits and accident disability benefits under an

ERISA-regulated
plan
be
the same. See Pagan v. NYNEX Pension Plan,

52 F.3d 438 (2d Cir. 1995). Further, the plan provisions in this

case do not explicitly prescribe a test for "on-duty" status that

mirrors the test commonly used in worker compensation systems.

For these reasons, we conclude that the district court

did
not
err
in deciding that the decisions of the EBC and the EBRC

were not arbitrary and capricious.

C. Recupero's Request for Reclassification of Benefits

We take note that plaintiff is not seeking "Sickness

Disability
Benefits"
beyond those already paid to her. Rather, she

is asking merely that we order, or direct the district court to

order, that the benefits already paid to her as "Sickness

Disability Benefits" be declared to be reclassified as "Accident

Disability Benefits." (Appellant's Br. at 1 n.1.)

Recupero
does not argue, nor do we know of any ground on

which she could creditably do so, that she was entitled to such a

reclassificat
ion decision by the district court, or is entitled to

have
this
court
declare
such a reclassification. Instead, she asks

-46-

this
court,
as a matter of discretion in the interests of justice,

to
declare
the
reclassification or order the district court to make

a discretionary decision regarding reclassification.

We are not persuaded that we should exercise discretion

in this way at this late stage in the development of proceedings

regarding Recupero's claim for benefits, even if we were to

determine
that we have jurisdiction to do so. Recupero has failed

to
place
before us, or before the district court, a record showing

that
she
made
a
request
that the Committees make a determination of

this
type.

Nor has she called to our attention any good cause for

determining that she should be allowed to present this request at

this
late
point in the face of the apparent unfairness of allowing

a
claimant
to
proceed
on
one set of contentions to the threshold of

final resolution and only then assert a new theory of claim. In

these circumstances, without undertaking to resolve very

substantial
doubts about our jurisdiction to entertain such a late

request
for
a
declaration of "reclassification" of benefits she was

paid and accepted as "Sickness Disability Benefits," we conclude

that her request must be denied as untimely. This conclusion is

amply supported by precedent. See, e.g., United States v.

Bongiorno, 106 F.3d 1027, 1034 (1st Cir. 1997) (constitutional

arguments not raised in the lower court cannot be advanced on

appeal);
Armstrong

v.
Jef
ferson Smurfit & Corp., 30 F.3d 11, 13 n.4

(1st Cir. 1994) (argument that reimbursement of taxes paid in

lump-sum payments could be benefits under ERISA waived when made

for the first time on appeal.)

-47-

D. Interpretation of Plan Provisions

As a general rule (independently of the special

characteristics of ERISA claims cases), disputes over

interpretation
of
a
document (or set of documents taken together as

a
unit)
are
decided as matters of law are decided. See, e.g., Den

Norske
Bank,
A.S.
v.
Firs
t Nat. Bank of Boston, 75 F.3d 49, 52 (1st

Cir.
1996)("Normally, contract interpretation is a question of law

for the court."). And, as a general rule, courts may determine

that
an
out-of-court decision was arbitrary and capricious if that

decision was explicitly or implicitly founded on an error of law.

E.g.
,
United
States

v.
Me
mbers of Estate of Boothby, 16 F.3d 19, 21

(1st Cir. 1994) ("In scrutinizing administrative actions, a

reviewing court is free to correct errors of law, but, otherwise,

the court is limited to a search for arbitrary or capricious

behavior.").

If a genuine dispute exists regarding existence of a

contract, ordinarily that issue "is a question of fact, for the

jury ... [unless] the evidence consists only of writings, or is

uncontroverted," in which even "the court can decide the issue."

American Private Line Services, Inc. v. Eastern Microwave, Inc.,

980 F.2d 33, 35 (1st Cir. 1992). Even if the core of the dispute

is what interpretation to give to a document or to uncontroverted

oral communications, in exceptional circumstances an issue of

interpretatio
n on which reasonable persons may differ is submitted

to
a
"trier
of
fact."

Bo
ston Edison Co. v. F.E.R.C., 856 F.2d 361,

367 n.3 (1st Cir. 1988). But this exception cannot be invoked by

-48-

a
party
who
has failed to make any proffer of documentary or other

evidence
sufficient
to
support a determination of ambiguity in some

respect material to disposition on the merits of the controversy

before the court. See, e.g., Donoghue v. IBC USA (Publications),

Inc., 70 F.3d 206, 215 (1st Cir. 1995) (a hypothetical allegation

of meaning, whether ambiguity is alleged or not, is inadequate to

present a genuine dispute as to a material issue; even if a party

is "claiming to benefit from ambiguity (for example, by being

allowed to proffer extrinsic evidence supporting its

interpretatio
n) [that party] must show ambiguity in the meaning of

the agreement with respect to the very issue in dispute"). The

record before us in this case is devoid of any such proffer.

For these reasons, we conclude, without deciding

unsettled issues about jury trial in ERISA cases generally (see

decisions cited in Part II.C.2, supra), that in no event would it

be
proper
in
this
case
to submit to a jury issues of interpretation

of the NET plan provisions bearing upon "Accident Disability

Benefits" claimed by Recupero. Moreover, such an interpretive

question could go to a jury only if the court, in which the jury

sits,
has
plenary
jurisdiction. For the reasons explained in Parts

II.B
and
II.C of this opinion, the exceptional allowance of a jury

decision on an interpretive question does not apply when the

court's role is limited to judicial review of an out-of-court

decision.

-49-

E. Futility of Remand

NET argues that the same outcome on issues of

interpretation of NET plan provisions must be reached on another

ground.

The
argument is that the record before the district court

was sufficient, and the record on appeal is sufficient, for this

court to determine that remand would be futile because, from

undisputed
facts
that
Recupero does not suggest could be challenged

if
remand
were ordered, it is apparent that Recupero's claim fails

on the merits. We conclude that, though from a limited

perspective, the decision of this matter might have seemed

debatable, closer probing supports this defense position with

respect to issues concerning the meaning and application to this

case of the NET plan provisions regarding "Accident Disability

Benefits."

Recupero
has
entirely failed, in proceedings before this

civil action was filed, in proceedings in the court below, and on

appeal, to make any proffer of relevant evidence that could be

determined to be sufficient to support her contentions that plan

provisions on eligibility for Accident Disability Benefits should

be interpreted in a way that would present a genuinely disputable

factual issue bearing upon her claim on the merits.

F. Denial of Notice

As an independent basis for rejecting Recupero's claim

for some form of relief because of alleged violation of 29 U.S.C.

S
1133
with
respect to notice about how to pursue her rights under

-50-

the plan after denial of her benefits claim, NET contends that

Recupero
failed
to
proffer any admissible evidence, at any stage of

proceedings, to support any finding of prejudice to her.

(Appellees' Br. at 9, 20-21.) The district court determined that

Recupero
had
not
proffered evidence sufficient to support a finding

of prejudice in any relevant sense. (Memorandum and Order,

Sept. 20, 1996 at 14-15.)

In effect, Recupero has attempted to demonstrate

prejudice by arguing that it is inherent in the circumstances of

any claim of the type she has made, rather than by proffering

evidence, either to the Committees or to the district court, to

show that in some special way the circumstances of her case were

unique
or
at
least exceptional. We conclude that allowing a claim

for relief because of inadequacy of formal notice without any

showing that a precisely correct form of notice would have made a

difference would result in benefit claims outcomes inconsistent

with ERISA aims of providing secure funding of employee benefit

plans.

In these circumstances, we conclude that the

determination by the district court that Recupero failed to show

prejudice in a relevant sense is unassailable, regardless of

whether we treat it as a factual finding by the district court or

instead as a determination of insufficiency of proffered evidence

"as a matter of law."

-51-

CONCLUSION

For the reasons stated in this opinion, it is ORDERED:

The
judgment
of
the
district court is AFFIRMED. Costs of

the appeal are awarded to Appellees.

-52-