Doe v. Harvard Pilgrim Health Care, Inc.

United States Court of Appeals
For the First Circuit

No. 17-2078

JANE DOE,

Plaintiff, Appellant,

v.

HARVARD PILGRIM HEALTH CARE, INC.; HARVARD PILGRIM PPO PLAN
MASSACHUSETTS, GROUP POLICY NUMBER 0588660000,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Denise J. Casper, U.S. District Judge]

Before

Thompson, Selya, and Kayatta,
Circuit Judges.

Mala M. Rafik, with whom Sarah E. Burns and Rosenfeld & Rafik,
P.C. were on brief, for appellant.
Peter S. Sessions, Lisa S. Kantor, and Kantor & Kantor LLP,
on brief for National Alliance on Mental Illness, amicus curiae.
Jonathan M. Feigenbaum on brief for United Policyholders and
Health Law Advocates, Inc., amici curiae.
Christine Zaleski, with whom Steven L. Schreckinger and
Anderson & Kreiger LLP were on brief, for appellees.

September 6, 2018
 KAYATTA, Circuit Judge. Jane Doe's insurer, Harvard

Pilgrim Health Care ("HPHC"), deemed part of the time Doe spent at

a mental health residential treatment facility not medically

necessary under the health care benefits plan established by the

employer of Doe's parent. HPHC therefore denied coverage for that

portion of the treatment. After several unsuccessful

administrative appeals, Doe sued HPHC in federal court under the

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

§§ 1001–1461. On de novo review, the district court agreed with

HPHC's determination that continued residential treatment was not

medically necessary for Doe. We conclude that the administrative

record upon which the district court based its finding should have

been supplemented. We therefore reverse in part, vacate in part,

and remand for further proceedings.

I.

A.

The following facts are undisputed. On January 17,

2013, Doe was admitted to the Austen Riggs Center ("Riggs") in

Stockbridge, Massachusetts for residential mental health

treatment. She was experiencing psychosis, suicidal ideation,

depression, and anxiety. At the time, Doe was insured under her

father's employer-provided HPHC plan (the "Plan"). HPHC

contracted with another insurance company, United Behavioral

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Health ("UBH"), to manage mental health services. In order for

services to be eligible for coverage under the Plan, they must be,

among other things, "medically necessary," a standard defined in

the Plan with a degree of detail that is not relevant to what we

ultimately decide on this appeal.

HPHC approved coverage for an initial residential stay

at Riggs. But on February 5, 2013, HPHC, acting through UBH,

informed Doe by letter that it would not cover additional time

spent at Riggs because further residential treatment was not

medically necessary. As UBH explained in the letter, it based

this denial on the assessment of UBH's Associate Medical Director,

Dr. James Feussner. The letter informed Doe that she had the right

to appeal the denial of benefits to UBH/HPHC, on a standard or

expedited basis, and that she might also be eligible for an

external appeal.

Doe requested an expedited appeal. Pursuant to the Plan,

HPHC continued to cover Doe's residential treatment through the

completion of the internal appeal process. On February 12, 2013,

HPHC denied Doe's appeal and upheld the determination that further

residential treatment was not medically necessary. In the

February 12 letter, HPHC explained that it based its "final

decision on [Doe's] appeal" on an assessment by independent

psychiatrist Dr. Michael Bennett. The letter also advised Doe

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that she might be eligible for an external review through the

Massachusetts Department of Public Health's Office of Patient

Protection ("OPP") and might also be able to pursue legal action.

Despite the fact that residential treatment services

would not be covered beginning on February 13, Doe remained at

Riggs. On her daughter's behalf, Doe's mother filed a request for

an expedited external appeal with the OPP. As part of that

request, Doe's mother signed two authorizations allowing the

release of all relevant medical or treatment records and all

relevant psychotherapy notes for review in the appeal. The

reviewer engaged by the OPP to conduct the review wrote Doe on

March 12, 2013, upholding the denial of continued residential

treatment based on the assessment of a board-certified

psychiatrist. At her parents' expense, Doe stayed at Riggs until

mid-June. On June 18, 2013, Doe was discharged and admitted to a

higher level of care -- an inpatient facility -- for several days.

On June 24, 2013, she was re-admitted to Riggs, where she remained

until August 7, 2013. HPHC paid for Doe's inpatient stay in June

2013, as well as her entire second admission to Riggs from June 24,

2013 to August 7, 2013, so coverage for these stays is not at issue

in this appeal.

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 B.

At some point after HPHC denied Doe's expedited appeal,

Doe retained counsel. In February 2014, Doe's attorney wrote to

HPHC expressing a desire to resolve the dispute "amicably rather

than through litigation." She enclosed with the letter Doe's

complete medical records from Riggs spanning both admissions

(January 17, 2013 to August 7, 2013,1 minus the brief period spent

in inpatient treatment in June 2013), as well as a narrative report

from Doe's treating psychologist, Dr. Sharon Krikorian.

Giving a preview of her position in litigation should it

come to that, Doe's attorney also asserted that because neither

UBH, HPHC, nor the external reviewer had reviewed the complete

medical records, their reviews were incomplete and did not comply

with ERISA. In short, counsel took the position that the record

of how Doe's actual treatment played out after HPHC's denial of

coverage was relevant to determining whether her stay at Riggs

between February 13 and her first discharge was medically

necessary. Counsel requested that HPHC reverse its February 12

decision and reimburse Doe for the uncovered portion of her stay.

HPHC denied this request on July 23, 2014, asserting that it had

reviewed Doe's February 19 "letter, the accompanying documents and

1 The letter identifies the closing date as August 14, rather
than August 7, but this appears to be a typographical error.

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the underlying case" but that it agreed with its previous decisions

and upheld its denial "for the reasons previously stated."

Doe eventually sued HPHC and the Plan in March 2015

challenging the denial of coverage and seeking reimbursement for

the cost of her uncovered residential treatment from February 13,

2013 through June 18, 2013. Before the newly filed lawsuit moved

forward, in-house counsel for HPHC contacted Doe's attorney and

asserted for the first time that Doe had failed to exhaust her

administrative remedies. At this point, HPHC's exhaustion

argument appeared to be directed at claims that were submitted to

HPHC after it concluded its initial internal appeal on February 12,

2013 and thus were never, in HPHC's view, "actually formally

appealed." HPHC offered to waive the expired deadline and conduct

a formal appeal of these claims.

With Doe's attorney contesting the failure-to-exhaust

contention, the two sides then proceeded to do what good lawyers

do. They continued to explore the possible settlement of the

underlying dispute. Unsuccessful, they nevertheless did agree to

the parameters for a renewed review of Doe's claim for benefits by

HPHC (to which we will refer as the post-filing review), including

a specification of which documents HPHC would consider and the

time frame in which it would conduct the review. In preparation

for the post-filing review, HPHC provided Doe with all of the

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denial letters associated with Doe's claims and the clinical

rationale relied upon in reaching those decisions. In response,

Doe provided HPHC with Doe's complete medical records from both

admissions at Riggs (spanning January 17, 2013 to August 7, 2013),

a narrative report prepared by Dr. Krikorian, and a report prepared

by Dr. Edward Darell regarding Doe's second admission to Riggs.

Finally, the parties jointly secured several extensions of the

deadline for HPHC to answer Doe's complaint to allow for completion

of the post-filing review.

On September 30, 2015, HPHC informed Doe by letter that

it was still denying coverage for the disputed period (February 13,

2013 to June 18, 2013), this time based on the opinion of HPHC

Medical Director Dr. Joel Rubinstein. HPHC explained that Dr.

Rubinstein had reviewed various documents (including Doe's medical

records and her case file), had spoken with Doe's providers at

Riggs, and concluded that continued residential treatment was not

medically necessary. HPHC attached Dr. Rubinstein's review to its

letter.

After Doe requested an opportunity to respond to HPHC's

denial, the parties filed in October a joint motion to stay the

case. In their motion, the parties explained that they had "agreed

to permit Ms. Doe to complete a pending Administrative Review" of

her claims. They further stated that "[d]ocuments submitted or

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generated as part of the Administrative Review[] will be part of

the Administrative Record in this case."

Two months after the parties filed the motion to stay,

on December 3, 2015, Doe sent HPHC a letter responding to its

September 30 decision. In that letter, Doe explained that

"[p]ursuant to the parties' agreed-to parameters of HPHC's medical

review," she was submitting additional information responding to

Dr. Rubinstein's review. This information included a report by an

independent psychiatrist, Dr. Gregory Harris, and a letter by

Riggs's Associate Medical Director, Dr. Eric Plakun.

On February 5, 2016, the parties filed a joint status

report informing the court that HPHC "require[d] additional time

to complete the Administrative Review and to respond to the

materials submitted by [Doe]." On February 26, 2016, the parties

filed a second joint status report stating that HPHC had

"considered [Doe's] additional information" and would soon provide

Doe with "a detailed response denying the claims." That same day,

HPHC sent Doe a letter explaining that it had reviewed the

additional documentation Doe had submitted on December 3,

including the opinions of Dr. Harris and Dr. Plakun, and that it

was "upholding its prior decisions." HPHC noted that nothing had

been submitted, in the course of what it characterized as "this

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voluntary administrative review, . . . that would give [it]

grounds to alter its previous coverage determinations."

When litigation resumed, the district court ordered HPHC

to provide Doe with a proposed record for judicial review. HPHC

filed with the court an administrative record that included Doe's

medical records from her first admission to Riggs. Contrary to

the parties' prior agreement as expressed in the October motion to

stay, the records HPHC submitted did not include the other records

"submitted or generated as part of" the post-filing review. In

particular, HPHC's submitted record did not include the medical

records from Doe's second admission, Dr. Darrell's review, or the

additional reports of Drs. Harris and Plakun that Doe submitted as

part of her December 3, 2015 letter.

Doe then filed a motion to expand the scope of the

administrative record submitted by HPHC so that it would be

consistent with the parties' prior representation to the court.

Doe specifically requested that the district court include four

additional categories of documents: (1) medical records from

Doe's second admission to Riggs; (2) communications between

counsel related to both admissions and to the post-filing review;

(3) the post-filing review HPHC conducted, including the report of

Dr. Rubinstein; and (4) the additional documents Doe submitted in

response to Dr. Rubinstein's review, including the reports of

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Drs. Harris and Plakun. The district court held a hearing at which

it partially granted Doe's motion. The court declined to include

medical records or communications related to Doe's second

admission to Riggs, for which HPHC granted coverage. But it noted

that the parties had agreed to include medical records from Doe's

first admission (the February to June 2013 period), and found that

it was therefore proper to also include the additional expert

reports of Drs. Harris and Plakun, as well as Dr. Rubinstein's

review, HPHC's post-filing denial letter of September 30, 2015,

and HPHC's post-filing denial letter of February 26, 2016.

Two months later, on the same day that she filed a motion

for summary judgment, Doe filed a second motion to expand the scope

of the record to include the narrative report of Dr. Krikorian

that Doe had submitted as part of the post-filing review. When

the district court subsequently issued its summary judgment order,

it not only denied Doe's second motion to further expand the scope

of the administrative record, but it also reconsidered portions of

its ruling on Doe's first motion. Upon determining in its summary

judgment ruling that the OPP's March 12, 2013 decision constituted

the final administrative decision in Doe's case, the court limited

its de novo review to medical records and other documents that

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were generated through that date and excluded any documents created

afterward, including the reports of Drs. Harris and Plakun.2

Having thus defined the administrative record to exclude

Doe's submissions in the post-filing review, the district court

turned its attention to the merits of the benefits denial. The

district court had determined, as a threshold matter, that because

the Plan documents did not expressly provide for discretionary

authority on the part of HPHC in determining medical necessity,

the proper standard of review was de novo. Applying this standard,

the court then determined that continued residential treatment at

Riggs was not medically necessary for Doe. Finally, the court

found that HPHC had complied with ERISA in providing a full and

fair review of Doe's claim and that, even if that were not the

case, Doe had failed to show prejudice.

Doe now appeals.

II.

Doe challenges both the district court's definition of

the administrative record and its finding on the merits against

her based on that record. We address each challenge in turn.

2 The court noted that although the OPP report reflects that
the external reviewer considered Doe's medical records, "[i]t does
not provide an end date for those records." In response to this
uncertainty, the district court took an "expansive view and
reviewed Jane's medical records up to and including March 12, 2013
as part of the administrative record."

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 A.

We begin with the dispute about the record. The parties

spar over the appropriate standard of review for determining

whether the district court erred in denying Doe's motions to expand

the scope of the administrative record, with Doe advocating for de

novo review and HPHC arguing for abuse of discretion. We need not

resolve this question today because, while we offer no criticism

of the district court's care and diligence in attempting to

determine the proper scope of the record, under either standard we

disagree with its ultimate determination. Our reasoning follows.

In a denial of benefits case, "[t]he decision to which

judicial review is addressed is the final ERISA administrative

decision." Orndorf v. Paul Revere Life Ins. Co., 404 F.3d 510,

519 (1st Cir. 2005). "[T]he final administrative decision acts as

a temporal cut off point" and, absent a good reason, courts

reviewing that decision are limited to evidence that was presented

to the administrator. Id. at 519–20 ("We need not catalogue the

situations in which new evidence is admissible, other than to note

it is more obviously relevant when the attack is on the process of

decision making as being contrary to the statute than on the

substance of the administrator's decision."); see also Liston v.

Unum Corp. Officer Severance Plan, 330 F.3d 19, 23 (1st Cir. 2003)

("[A]t least some very good reason is needed to overcome the strong

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presumption that the record on review is limited to the record

before the administrator.").

So, we ask, first, was the "final administrative

decision" OPP's denial of Doe's appeal or HPHC's completion of the

post-filing review? The parties' currently differing positions on

this question are premised on their respective views of the post-

filing review. HPHC argues that the post-filing review was

"undertaken in the spirit of conciliation" as part of settlement

discussions and did not reopen Doe's administrative case. HPHC

thus maintains that the OPP's decision on March 12, 2013 was the

final administrative decision for purposes of this suit. Doe

counters that HPHC voluntarily reopened Doe's administrative

proceeding, which ultimately concluded with the final decision

HPHC issued on February 26, 2016, and that HPHC should be bound by

its agreement concerning the record.

The beginning portion of the record contains some

ambiguity on this question. As we noted, HPHC's initial assertion

of Doe's failure to exhaust administrative remedies, as part of

its offer of an additional "formal appeal," does align with HPHC's

assertion in its appellate briefing that its reference to Doe's

failure to exhaust administrative remedies was limited to the

invoices that Riggs, not Doe, submitted to HPHC after the OPP

decision. And in one of Doe's responses to HPHC's offer, she

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opened her email with "Thank you for kicking off our combined

efforts to settle this matter." These interactions suggest that

there was some initial uncertainty among the parties regarding

what precise claims required exhaustion and whether they were

exploring a continuation of the administrative process concerning

the denied claims or a settlement negotiation.

But by October 2015, when the parties filed a joint

motion to stay the case and HPHC filed its accompanying answer,

any ambiguity was gone. As we have noted, the parties moved to

stay the case after HPHC had denied Doe's post-filing appeal based

on the assessment of Dr. Rubinstein and after HPHC had agreed to

allow Doe to respond to that denial, but before Doe had submitted

the additional reports of Drs. Harris and Plakun. In their motion,

the parties informed the court that they had "agreed to permit Ms.

Doe to complete a pending Administrative Review of her health

insurance benefits claims prior to proceeding further with this

federal court action." They went on: "Documents submitted or

generated as part of the Administrative Review[] will be part of

the Administrative Record in this case." Finally, the parties

explained that "staying this case will permit the parties to

complete the Administrative Review of Ms. Doe's benefits claims

and provide the Court with a complete Administrative Record to

review, or, in the alternative, moot this action in its entirety."

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So, HPHC explicitly agreed -- twice in a two-page document -- that

documents submitted or generated as part of Doe's pending

"Administrative Review" would be included in the administrative

record before the court.

The parties each had good reason to reopen the review

and the record. Doe had accused HPHC of conducting a deficient

review. HPHC had accused Doe of waiving her rights by failing to

exhaust administrative remedies. Continuing or reopening the

administrative review had the potential to eliminate both of those

threatened procedural parries.

The district court acknowledged the parties' clear

agreement, but for three reasons decided not to enforce it. We

review each reason in turn.

First, the district court relied on prior circuit

precedent rejecting efforts of a party to supplement the

administrative record after a final administrative decision is

made. See Orndorf, 404 F.3d at 520; Liston, 330 F.3d at 23. Of

course, this precedent begs the question of when the final

administrative decision was made. More importantly, in those

cases, one party sought to expand the record more broadly than the

other. See Orndorf, 404 F.3d at 519 (noting plaintiff's argument

that the trial judge "should have admitted evidence outside of the

administrative record"); see also Denmark v. Liberty Life

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Assurance Co. of Bos., 566 F.3d 1, 9-10 (1st Cir. 2009)

(summarizing the parties' differing positions on the permissible

scope of discovery in ERISA cases); Liston, 330 F.3d at 23-24

(noting that plaintiff's argument regarding the impropriety of

summary judgment was based on evidence beyond the administrative

record). Here, both parties expressly agreed to reopen (or

continue) the administrative proceeding and both agreed that the

additional records submitted as part of that reopening would not

only be considered in the additional review but would also become

part of the administrative record before the district court. In

none of our cases have we suggested that an ERISA fiduciary can

unilaterally walk away from a clear agreement with the beneficiary

concerning the status of an administrative review under a plan.

Second, the district court was concerned that allowing

Doe to supplement the record might deter future claims fiduciaries

from trying to settle lawsuits. While we understand this concern,

we clearly do not have a settlement or mediation event here. The

process undertaken by the parties after Doe filed suit did not

look like a settlement or mediation. HPHC did not offer Doe a sum

of money or other compensation as an incentive to drop her suit.

Nor did the additional review consist of negotiations regarding a

final resolution of the dispute. Rather, HPHC received information

from Doe under an express agreement concerning the nature and

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effect of the post-filing review and then made an up or down

decision as it would in normal course. Moreover, this is not a

situation in which a court is being asked to infer the reopening

of the record from the parties' continued talking or negotiating,

with or without the submission of new information. Rather, we

have an express agreement between the parties that records from a

renewed review would be part of the administrative record. Holding

HPHC to the terms of that agreement poses no risk that other claims

fiduciaries will accidentally find themselves in the same boat

without such an express agreement to get on board.

Third, the district court believed that technical

requirements under ERISA precluded honoring the parties'

agreement. Taking to heart our instruction that "the plain

language of the plan provisions should normally be given effect,"

Doe v. Harvard Pilgrim Health Care, Inc., 15-CV-10672, 2017 WL

4540961, at *10 (D. Mass. Oct. 11, 2017) (quoting Stephanie C. v.

Blue Cross Blue Shield of Mass. HMO Blue, Inc., 852 F.3d 105, 117

(1st Cir. 2017) (Stephanie C. II)), the district court determined

that the post-filing review undertaken by the parties "was not an

administrative review as defined by the Plan," id. Our case law,

though, acknowledges that ERISA administrative reviews can be

reopened and their records supplemented. In Gross v. Sun Life

Assurance Co. of Canada, 734 F.3d 1 (1st Cir. 2013), we considered

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an appeal from the denial of long-term disability benefits. After

reviewing the medical evidence in the record and nine days of video

surveillance of the claimant, which arguably undermined the

medical evidence, we determined that "we ha[d] no choice but to

remand" to the claims administrator, id. at 27, for reconsideration

on a supplemented record, id. at 28. We see no reason why parties

should not be allowed to do the same thing by express agreement.

HPHC counters, puzzlingly, that the agreement it made

regarding the record in the motion to stay "concerns the documents

that will constitute the Administrative Record and not whether the

OPP decision would no longer be treated as the Final Administrative

Decision for the purpose of judicial review." Relatedly, it

asserts that the joint motion "relates only to those documents

that are relevant to the Final Administrative Decision on March 13,

2013." But the joint motion was quite clear that the parties

understood the "Administrative Review" to include the post-filing

review -- which the joint motion explicitly said had yet to be

completed -- and that documents submitted or generated as part of

that pending process would be incorporated into the administrative

record for the court "in this case" "to review." Notably, the

stay not only allowed both parties to supplement the record, but

also mooted Doe's argument that HPHC's first review was inadequate

under ERISA for failure to consider all relevant information.

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 HPHC's second line of defense is that an agreement to

alter the date of the final administrative decision, a move it

contends would fundamentally alter the case, "would not have been

made in such a cryptic and cursory fashion." We see nothing

cryptic about the parties' agreement. And HPHC does not elaborate

further.

We are left with no persuasive argument that we should

allow HPHC to avoid its agreement to include documents from the

post-filing review in the administrative record that the district

court considers in its de novo review of the benefits denial. In

the words of Orndorf, we hold that there is more than "good reason"

here to deem the documents submitted to HPHC during the post-

filing review to be part of the record upon which the merits of

this case should turn.

One loose end remains concerning the scope of the

administrative record. Neither party advances as a backup argument

that HPHC's September 30, 2015 decision based on Dr. Rubinstein's

review -- rather than its February 26, 2016 decision that also

considered the reports of Drs. Harris and Plakun -- qualifies as

the final administrative decision. We nevertheless address this

question briefly, because it has implications for the district

court's analysis on remand. In short, HPHC itself appears to have

viewed its February 26 determination as the completion of the post-

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filing review process. In its February 2016 letter, HPHC described

its decision as HPHC's "concluding remarks on the informal review

process the parties agreed to undertake" and informed Doe that it

"ha[d] now completed its informal review." We see no reason to

question HPHC's apparent view that whatever process began with its

offer to conduct a post-filing review, that process ended on

February 26, 2016.

In sum, we conclude that the administrative record for

purposes of reviewing the benefits decision in this case includes

the documents submitted or generated as part of the post-filing

review process as concluded on February 26, 2016. This includes

all of Doe's medical records from both admissions to Riggs, as

well as the reports of Dr. Darrell, Dr. Harris, Dr. Plakun, and

Dr. Krikorian.

B.

We turn next to deciding our own standard for reviewing

the merits of the benefits denial. The two choices urged by the

parties are de novo, as urged by Doe, and clear error, as urged by

HPHC. The choice makes a difference in how we proceed. If our

review of the merits decision is de novo, then it is of no moment

that the district court based its own decision on a truncated

record. All the documents that should have been included in the

record are docketed and filed in this case. So we could conduct

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a de novo review without any remand. Cf. Gross, 734 F.3d at 16

("Given that we play the same role as the district court in

evaluating [the administrator's] denial of benefits, we have

chosen not to remand to that court for application of the correct,

de novo, standard for reviewing [the administrator's] decision.").

Conversely, if we review only for clear error the district court's

decision affirming de novo HPHC's denial of benefits, then we need

remand to the district court so that it can first make its decision

on the proper record.

We recently observed that our precedent on the proper

standard of appellate review of district court de novo findings in

ERISA cases is "murky." Stephanie C. II, 852 F.3d at 109–12. In

Orndorf, we applied de novo appellate review. 404 F.3d at 516–

18. Subsequently, though, we applied clear error review. See

Tsoulas v. Liberty Life Assurance Co. of Bos., 454 F.3d 69, 75

(1st Cir. 2006). In Stephanie C. II, we noted "the tension in our

decisions" and reflected on many of the relevant considerations

bearing on this issue, ultimately finding that we did not need to

decide the issue there. 852 F.3d at 112. With the benefit of

that discussion, and the Supreme Court's more recent opinion in

U.S. Bank National Ass'n ex rel. CWCapital Asset Management LLC v.

Village at Lakeridge, LLC, 138 S. Ct. 960 (2018), we now hold that

when a district court examines the denial of ERISA benefits de

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novo, we review the court's factual findings only for clear error.3

Our reasoning follows.

We begin with the observation that it is our general

practice to review factual determinations for clear error. For

example, when faced with an appeal from a bench trial, we review

factual findings by the district court for clear error, even where

those findings are based on physical or documentary evidence rather

than credibility determinations. See Limone v. United States, 579

F.3d 79, 94 (1st Cir. 2009) (quoting Anderson v. City of Bessemer

City, 470 U.S. 564, 573-74 (1985)); see also Mullin v. Town of

Fairhaven, 284 F.3d 31, 36–37 (1st Cir. 2002) (same rule applies

to judgment on partial findings). This practice extends well

beyond bench trials, see, e.g., Corp. Techs., Inc. v. Harnett, 731

F.3d 6, 10 (1st Cir. 2013) (ruling on a motion for a preliminary

injunction); Sawyer Bros., Inc. v. Island Transporter, LLC, 887

F.3d 23, 29 (1st Cir. 2018) (factual determinations in fixing

damages); Blattman v. Scaramellino, 891 F.3d 1, 3 (1st Cir. 2018)

(federal common law of attorney-client privilege), and applies in

the criminal context as well, see, e.g., United States v. McDonald,

3 We offer no opinion on the standard of appellate review that
applies when the district court reviews a discretionary
determination by a plan administrator under the arbitrary and
capricious standard.

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804 F.3d 497, 502 (1st Cir. 2015) (motion to suppress); United

States v. Giggey, 867 F.3d 236, 242 (1st Cir. 2017) (sentencing).

Doe does not dispute that the district court's finding

regarding medical necessity is factual in nature. Cf. Stitzel v.

N.Y. Life Ins. Co., 361 F. App'x 20, 28 (11th Cir. 2009) (per

curiam) (noting that whether claimant's care is "medically

necessary" is a factual determination); Rush v. Parham, 625 F.2d

1150, 1153–54 (5th Cir. 1980) (treating issue of whether

transsexual surgery was medically necessary as factual in nature).

And Doe points us to nothing in ERISA that would cause one to doubt

the application of this general practice of clear error review.

That this ERISA case arrived at our doorstep after being

resolved under the rubric of summary judgment does not give us

reason to depart from the general rule. In the ERISA context,

"[t]he burdens and presumptions normally attendant to summary

judgment practice do not apply." Stephanie C. v. Blue Cross Blue

Shield of Mass. HMO Blue, Inc., 813 F.3d 420, 425 n.2 (1st Cir.

2016) (Stephanie C. I) (citing Scibelli v. Prudential Ins. Co. of

Am., 666 F.3d 32, 40 (1st Cir. 2012)). Rather, a motion for

summary judgment in an ERISA case, like in other administrative

law contexts, is simply a vehicle for teeing up the case for

decision on the administrative record. See Doe v. Standard Ins.

Co., 852 F.3d 118, 123 n.3 (1st Cir. 2017) (quoting Stephanie C.

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I, 813 F.3d at 425 n.2)); Boston Redevelopment Auth. v. Nat'l Park

Serv., 838 F.3d 42, 47 (1st Cir. 2016). In reaching its decision

on the record, a district court on de novo review "may weigh the

facts, resolve conflicts in the evidence, and draw reasonable

inferences." Stephanie C. II, 852 F.3d at 111; see also U.S. Bank,

138 S. Ct. at 967 (explaining that when mixed questions of law and

fact require a court to "marshal and weigh evidence . . . appellate

courts should usually review [the resulting] decision with

deference"). In this way, summary judgment in the ERISA context

is akin to judgment following a bench trial in the typical civil

case.

To the extent ERISA benefits cases are analogous to

administrative law cases, that comparison also points toward

deferential review. In the case of many administrative

adjudications, we receive appeals directly from the agency. See,

e.g., Santos-Guaman v. Sessions, 891 F.3d 12 (1st Cir. 2018) (Board

of Immigration Appeals); Southcoast Hosps. Grp., Inc. v. NLRB, 846

F.3d 448 (1st Cir. 2017) (National Labor Relations Board). And in

those cases -- even without an intermediate level of review

comparable to that performed by the district court here -- we defer

to factual findings of the administrator, generally via the

substantial evidence standard. See, e.g., Santos-Guaman, 891 F.3d

at 16; Southcoast Hosps. Grp., 846 F.3d at 453. In an ERISA case

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like the one before us -- where our review is preceded by a district

court's independent de novo review -- there is even more reason to

accord some deference to the factual analysis conducted below.

Finally, clear error appellate review also aligns with

the approach our sister circuits have adopted in similar ERISA

cases. See Williams v. Int'l Paper Co., 227 F.3d 706, 714 (6th

Cir. 2000) ("Factual findings inherent in deciding an ERISA claim

are reviewed for clear error."); Bilheimer v. Fed. Exp. Corp. Long

Term Disability Plan, 605 F. App'x 172, 181 (4th Cir. 2015) (per

curiam) (unpublished) (reviewing the district court's finding that

claimant was totally disabled for clear error); see also Muller v.

First Unum Life Ins. Co., 341 F.3d 119, 124 (2d Cir. 2003)

(construing the district court's disposition of defendant's

"motion for judgment on the administrative record" as "essentially

a bench trial 'on the papers'"); EEOC v. Maricopa Cty. Cmty. Coll.

Dist., 736 F.2d 510, 513 (9th Cir. 1984) (applying clear error

review to a summary judgment decision issued on stipulated facts).

We therefore adopt clear error review here. And, as we have

explained, we cannot properly conduct such a deferential review in

this case until we first have the benefit of the district court's

views on the complete administrative record.

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 III.

For the foregoing reasons, we reverse the district

court's denial of Doe's motions to expand the scope of the

administrative record; we vacate its order granting summary

judgment for HPHC; and we remand for further proceedings consistent

with this opinion. Costs are awarded to plaintiff.

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