Ermovick v. Mitchell Silberberg & Knupp LLP Long Term Disability Coverage for All Employees

FILED
NOT FOR PUBLICATION APR 08 2010

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

JAMES ERMOVICK, No. 09-55011

Plaintiff - Appellant, D.C. No. 2:05-cv-06018-R-VBK

v.
MEMORANDUM *
MITCHELL SILBERBERG AND KNUPP
LLP LONG TERM DISABILITY
COVERAGE FOR ALL EMPLOYEES,
an ERISA plan,

Defendant - Appellee.

Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding

Argued and Submitted March 5, 2010

Pasadena, California

Before: CANBY and W. FLETCHER, Circuit Judges, and TUNHEIM,**
District Judge.

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable John R. Tunheim, US District Judge for the District of
Minnesota, sitting by designation .
 James Ermovick again appeals the district court’s judgment in favor of

Mitchell, Silberberg and Knupp LLP Long Term Disability Coverage for All

Employees (“the Plan”) upholding the termination of his long term disability

benefits. We reverse and remand with instructions to assign this case to a different

district judge.

Although not the designated plan administrator, Prudential Insurance

Company of America insured the Plan’s benefits and performed day-to-day

administration of the Plan. Ermovick was granted “any occupation” disability

benefits on April 4, 2003. Prudential terminated these benefits approximately

seven months later.

It is undisputed that the standard of review in the district court was de novo.

The district court originally upheld the termination of benefits and entered

judgment for defendant on August 11, 2006. On appeal, a panel of this court

reversed and remanded. We noted that while the district court declared it was

conducting a de novo review, it explained that it would review Prudential’s

decision to determine if it was clearly erroneous. We held that the district court’s

“construction of the standard was plainly wrong,” that the review “failed to

constitute ‘an independent and thorough inspection of the administrator’s

decision,’” and that the district court failed to “‘fully exercise its informed and

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independent judgment.’” Ermovick v. Silberberg, 282 F. App’x 623, 623 (9th Cir.

June 16, 2008) (unpublished disposition) (quoting Silver v. Executive Car Leasing

Long-Term Disability Plan, 466 F.3d 727, 733 (9th Cir. 2006); Mongeluzo v.

Baxter Travenol Long Term Disability Benefit Plan, 46 F.3d 938, 943 (9th Cir.

1995)). We also identified other flaws in the district court’s decision, including its

“failure to address the fact that Prudential granted long term disability benefits and

for no properly articulated reason terminated them seven months later,” and its

“decision to adopt the Plan’s proposed findings and conclusions verbatim.” Id. at

623 n.1.

On remand, the district court again upheld the termination of benefits and

entered judgment for defendant. Although the court stated that it was reviewing

the evidence “on the basis of the de novo review,” its standard of review was again

deferential. Rather than engaging in “an independent and thorough inspection of

the administrator’s decision,” Silver, 466 F.3d at 733, it concluded orally that the

“findings of fact” were “supported” by evidence in the administrative file. It again

adopted the Plan’s proposed findings and conclusions verbatim, adding, “The court

has reviewed the findings of fact and conclusions of law and finds them supported

by the evidence and the law.” The district court’s language that defendant’s

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findings and conclusions were “supported” by the evidence, and adoption of the

Plan’s findings and conclusions verbatim, is incompatible with a de novo review.

We therefore reverse and remand this case to the district court so that the

evidence may be reviewed under the proper standard of review. We remand this

case to the Chief Judge of the Central District of California for reassignment to a

different district judge. In light of the long time this case has been pending, we

request that the district court give expedited treatment to this case. We direct that

the court of appeals give expedited treatment to any appeal of the district court’s

decision on remand.

The mandate shall issue forthwith.

REVERSED AND REMANDED.

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