Leahy v. Raytheon Corporation

United States Court of Appeals
For the First Circuit

No. 02-1215

DANIEL J. LEAHY,

Plaintiff, Appellant,

v.

RAYTHEON COMPANY ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Morris E. Lasker, Senior U.S. District Judge]

Before

Selya, Circuit Judge,

Coffin and B. Fletcher,* Senior Circuit Judges.

Robert O. Berger for appellant.
Stephen S. Churchill, with whom James F. Kavanaugh, Jr. and
Conn Kavanaugh Rosenthal Peisch & Ford, LLP were on brief, for
appellees.

December 17, 2002

___________
*Hon. Betty B. Fletcher, of the Ninth Circuit, sitting by
designation.
 SELYA, Circuit Judge. In this case, brought pursuant to

the Employee Retirement Income Security Act of 1974 (ERISA), 29

U.S.C. §§ 1001-1461 (2000), plaintiff-appellant Daniel J. Leahy

alleges that defendant-appellee Metropolitan Life Insurance Company

(MetLife), as the claims administrator for Raytheon Company's long-

term disability plan (the Plan), unreasonably denied his claim for

benefits. The district court granted summary judgment in the

defendants' favor.1 The plaintiff appeals. After addressing

certain questions raised by the plaintiff anent the standard of

review in ERISA benefit denial cases, we affirm.

I.

Background

The basic facts are uncontradicted. The Plan is an

employee benefit plan funded by employee contributions and governed

by ERISA. As the claims administrator, MetLife is responsible for

making benefit determinations. For a participant to receive

benefits, MetLife must determine that he is "fully disabled" as

defined by the Plan. To meet that criterion, a claimant must show

that by reason "of a sickness or an injury which is not covered by

an applicable workers' compensation statute . . . [he or she]

cannot perform the essential elements and substantially all of the

1
The named defendants, appellees here, include MetLife,
Raytheon, the Plan (formally known as the Raytheon Employees
Disability Trust), and the Plan's trustees. For ease in reference,
we treat the case as if MetLife were the sole defendant.

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duties of his or her job at Raytheon even with a reasonable

accommodation."

The plaintiff began working for Raytheon in 1969. He

eventually became a departmental administrator and a Plan

participant. On October 18, 1996, Raytheon furloughed him from

that essentially sedentary position. The plaintiff received a

severance benefit that included six months of salary continuation.

Over the years, the plaintiff has had more than his share

of serious health problems; among other things, he has undergone

three hip replacements and two knee replacements. In April of

1997, he applied for benefits under the Plan, claiming that he had

become fully disabled on or about October 19, 1996 (the day after

he was furloughed). The linchpin of his claim was an allegation

that chronic hip pain prevented him from sitting for any length of

time (and, therefore, prevented him from performing his job, even

with a reasonable accommodation).

MetLife denied the claim on the ground that the plaintiff

did not meet the Plan's definition of "fully disabled." In

embellishing its decision, MetLife wrote that, taking into account

available accommodations, the plaintiff had not established an

inability to perform substantially all the duties of his job.

After exhausting his administrative remedies, the

plaintiff filed suit in the United States District Court for the

District of Massachusetts. He asserted that MetLife had violated

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ERISA when it unreasonably denied his claim. In due season, the

parties cross-moved for summary judgment. The district court

granted the defendants' motion and denied the plaintiff's

counterpart motion. Leahy v. Raytheon Co., No. 00-CV-12093, slip

op. (D. Mass. Jan. 29, 2002) (unpublished). The court noted that

the Plan vested broad discretionary authority in MetLife to

determine eligibility for benefits and declared that while some

medical evidence supported the plaintiff's claim of disability,

other evidence supported MetLife's denial of benefits. On that

scumbled record, the court ruled that MetLife's determination was

neither arbitrary nor capricious. This timely appeal followed.

II.

Standard of Review

This denial-of-benefits claim arises under 29 U.S.C. §

1132(a)(1)(B).2 The Supreme Court has provided the ground rules

for determining the proper standard of review. In Firestone Tire

2
The statute provides in pertinent part:

A civil action may be brought—
(1) by a participant or beneficiary—

* * *

(B) to recover benefits due to him under the
terms of his plan, to enforce his rights under
the terms of the plan, or to clarify his
rights to future benefits under the terms of
the plan; . . . .

29 U.S.C. § 1132(a)(1)(B).

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& Rubber Co. v. Bruch, 489 U.S. 101 (1989), the Court stated that

when a denial of benefits is challenged under ERISA §

1132(a)(1)(B), the standard of review depends largely upon whether

"the benefit plan gives the administrator or fiduciary

discretionary authority to determine eligibility for benefits or to

construe the terms of the plan." Firestone, 489 U.S. at 115. If

so, "Firestone and its progeny mandate a deferential 'arbitrary and

capricious' standard of review." Recupero v. New Engl. Tel. & Tel.

Co., 118 F.3d 820, 827 (1st Cir. 1997) (quoting Firestone, 489 U.S.

at 115). The threshold question, then, is whether the provisions

of the employee benefit plan under which remediation is sought

reflect a clear grant of discretionary authority to determine

eligibility for benefits. Terry v. Bayer Corp., 145 F.3d 28, 37

(1st Cir. 1998); Rodriguez-Abreu v. Chase Manhattan Bank, 986 F.2d

580, 583 (1st Cir. 1993). We turn, therefore, to the text of the

Plan.

The Plan documents give MetLife "the exclusive right, in

[its] sole discretion, to interpret the Plan and decide all matters

arising thereunder . . . ." The documents further provide that any

decision by MetLife in the exercise of that authority "shall be

conclusive and binding on all persons unless it can be shown that

the . . . determination was arbitrary and capricious." This

discretionary grant hardly could be clearer. Consequently, the

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arbitrary and capricious standard applies to judicial review of

MetLife's determination.3

In an effort to blunt the force of this reasoning, the

plaintiff makes two points. First, he suggests that a less

deferential standard of review is appropriate in this case because

the plan administrator operated under a conflict of interest. As

a purely theoretical matter, this suggestion rests on a sound

foundation. It is well settled that when a plan administrator

labors under a conflict of interest, courts may cede a diminished

degree of deference — or no deference at all — to the

administrator's determinations. See, e.g., Doe v. Travelers Ins.

Co., 167 F.3d 53, 57 (1st Cir. 1999); Doyle v. Paul Revere Life

Ins. Co., 144 F.3d 181, 184 (1st Cir. 1998); Brown v. Blue Cross &

Blue Shield of Ala., Inc., 898 F.2d 1556, 1562-64 (11th Cir. 1990).

But there is no meaningful conflict here, and so this case does not

fit within that rubric. We explain briefly.

3
We note that, in this context, the terms "arbitrary and
capricious" and "abuse of discretion" have been used
interchangeably. Although at least one commentator has lamented
this usage, see Kathryn J. Kennedy, Judicial Standard of Review in
ERISA Benefit Claim Cases, 50 Am. U.L. Rev. 1083, 1130 (2001)
(positing that abuse of discretion signifies a less deferential
standard), the Firestone Court did not distinguish between the
terms. Compare Firestone, 489 U.S. at 109-11, with id. at 113-15.
We follow that example. See Terry, 145 F.3d at 37 n.6 ("We agree
with then-Judge Ruth Bader Ginsburg that 'there is no need to adopt
one phrase and avoid the other.'") (citing Block v. Pitney Bowes,
Inc., 952 F.2d 1450, 1454 (D.C. Cir. 1992)).

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 In the plaintiff's view, the ostensible conflict involves

MetLife's hiring of outside physicians to scrutinize the

plaintiff's medical records. To affect the standard of review,

however, a conflict of interest must be real. A chimerical,

imagined, or conjectural conflict will not strip the fiduciary's

determination of the deference that otherwise would be due. See

Doyle, 144 F.3d at 184; Mers v. Marriott Int'l Group Accid'l Death

& Dismemb. Plan, 144 F.3d 1014, 1020 (7th Cir. 1998). The conflict

that the plaintiff envisions does not pass through this screen.

Analyzing disability claims plainly requires expertise.

It is, therefore, difficult to fault a plan administrator for

seeking expert assistance (indeed, it probably would be easier to

fault a plan administrator for not seeking such assistance). We

are aware of no case holding that a plan administrator operates

under a conflict of interest simply by securing independent medical

advice to aid in the evaluation process.4 Nor do we view this as

an accident: common sense dictates that retaining outside

physicians to assist in evaluating disability claims, without more,

4
In point of fact, extrapolating from the available case law
suggests the opposite conclusion. See, e.g., Sweatman v.
Commercial Union Ins. Co., 39 F.3d 594, 603 (5th Cir. 1994)
(finding that reliance upon an independent medical record review
did not constitute an abuse of discretion); Chandler v. Raytheon
Employees Disab. Trust, 53 F. Supp. 2d 84, 90-91 (D. Mass. 1999)
(similar), aff'd, 229 F.3d 1133 (1st Cir. 2000) (table), cert.
denied, 531 U.S. 1114 (2001).

-7-
does not constitute a conflict of interest. Here, there is no

"more" (and, thus, there is no conflict).

This conclusion is reinforced by the nature of the Plan.

The Plan is a voluntary employee-funded entity, and market forces

are at work. If MetLife denies claims that Plan participants as a

group view as valid, those employees will be inclined to withdraw

from the Plan, thus reducing MetLife's role (and, presumably, its

compensation). By the same token, if MetLife awards benefits that

are viewed as undeserved, Plan participants will experience an

increase in their premiums and thus be inclined to withdraw from

the Plan (again reducing MetLife's role and remuneration). Either

way, the structure of the Plan furnishes an incentive for MetLife

to be unbiased in its handling of claims. This is telling, for

courts should not lightly presume that a plan administrator is

willing to cut off its nose to spite its face.

The plaintiff's second ground for questioning the

standard of review is more artful. He points to the usual rule

that appellate review of an order granting summary judgment is de

novo. E.g., Plumley v. S. Container, Inc., 303 F.3d 364, 369 (1st

Cir. 2002); Suarez v. Pueblo Int'l, Inc., 229 F.3d 49, 53 (1st Cir.

2000). This means that the court of appeals must decide for itself

whether "the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the

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moving party is entitled to a judgment as a matter of law." Fed.

R. Civ. P. 56(c). And in doing so, the court must take the record

"in the light most hospitable to the party opposing summary

judgment, indulging all reasonable inferences in that party's

favor." Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990).5

Because the district court decided this case on summary judgment,

the plaintiff suggests that the summary judgment standard displaces

the arbitrary and capricious standard for purposes of this appeal.

We reject this suggestion.

To be sure, there is an obvious discongruence between the

two standards. The arbitrary and capricious standard asks only

whether a factfinder's decision is plausible in light of the record

as a whole, see, e.g., Pari-Fasano v. ITT Hartford Life & Accid.

Ins. Co., 230 F.3d 415, 419 (1st Cir. 2000), or, put another way,

whether the decision is supported by substantial evidence in the

record, Doyle, 144 F.3d at 184. The summary judgment standard,

however, asks whether the factfinder's decision is inevitable even

when all the evidence is marshaled in the objecting party's favor

and all reasonable inferences therefrom are shaped to fit that

5
This approach is not altered by the incidence of cross-
motions for summary judgment. "The happenstance that both parties
move simultaneously for brevis disposition does not, in and of
itself, relax the taut line of inquiry that Rule 56 imposes."
Blackie v. Maine, 75 F.3d 716, 721 (1st Cir. 1996). Thus, in the
ordinary case, the trial court "must consider each motion
separately, drawing inferences against each movant in turn." EEOC
v. Steamship Clerks Union, Local 1066, 48 F.3d 594, 603 n.8 (1st
Cir. 1995).

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party's theory of the case. See Suarez, 229 F.3d at 53; Griggs-

Ryan, 904 F.2d at 115.

There are signs that, in ERISA cases, courts have found

this dichotomy baffling. Some have glossed over it, giving lip

service to the summary judgment standard but then proceeding to

examine the evidence under the arbitrary and capricious standard.

See, e.g., Terry, 145 F.3d at 34, 37; Woo v. Deluxe Corp., 144 F.3d

1157, 1160-63 (8th Cir. 1998); Nazay v. Miller 949 F.2d 1323, 1328,

1334 (3d Cir. 1991). More recently, some of these same courts have

tended simply to ignore the discongruence, omitting any mention of

the summary judgment paradigm and focusing exclusively on whether

the fiduciary's decision passes muster under the arbitrary and

capricious test. See, e.g., Gritzer v. CBS, Inc., 275 F.3d 291,

295 (3d Cir. 2002); Vlass v. Raytheon Employees Disab. Trust, 244

F.3d 27, 29-30 (1st Cir. 2001). One court has attempted to

integrate the two approaches. See Bergt v. Ret. Plan for Pilots

Employed by MarkAir, Inc., 293 F.3d 1139, 1142-43 (9th Cir. 2002)

("[W]e review de novo whether, viewing facts most favorable to [the

plaintiff], the district court correctly held that no genuine

issues of fact exist as to whether the Committee abused its

discretion by denying [the plaintiff] benefits under the retirement

plan."). We are reluctant to enter this thicket — and we see no

need to do so in an ERISA benefit denial case brought pursuant to

29 U.S.C. § 1132(a)(1)(B) because there cannot possibly be a

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conflict between the standard of review that federal courts must

apply on summary judgment and the degree of deference that such

courts ultimately owe to plan administrators. We pause to explain

this statement.

The degree of deference owed to a plan fiduciary is an

underlying legal issue that remains the same through all stages of

federal adjudication. See Firestone, 489 U.S. at 115. By

contrast, summary judgment is a procedural device designed to

screen out cases that present no trialworthy issues. See McCarthy

v. N.W. Airlines, Inc., 56 F.3d 313, 314-15 (1st Cir. 1995). In an

ERISA benefit denial case, trial is usually not an option: in a

very real sense, the district court sits more as an appellate

tribunal than as a trial court. It does not take evidence, but,

rather, evaluates the reasonableness of an administrative

determination in light of the record compiled before the plan

fiduciary.6 See Recupero, 118 F.3d at 831; Perry v. Simplicity

Eng'g, 900 F.2d 963, 967 (6th Cir. 1990). No jury is involved.

See Recupero, 118 F.3d at 831; Sullivan v. LTV Aero. & Defense Co.,

82 F.3d 1251, 1258-59 (2d Cir. 1996); Borst v. Chevron Corp., 36

F.3d 1308, 1323-24 (5th Cir. 1994). Given this adjudicative

6
We do not foreclose the possibility that, in special
circumstances, a district court might take evidence in an ERISA
case. Cf. Vlass, 244 F.3d at 31 n.6 (leaving the question open).
We express no opinion as to what effect (if any) such
supplementation might have on the standard of review. Those
questions are not before us, as the parties here have explicitly
disclaimed any desire to supplement the record.

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framework, the plaintiff's proposal to treat the summary judgment

standard as if it permitted us to review the ingredients of the

administrative record de novo, without deference to the plan

administrator's findings, distorts the law.

The fortuity that the parties chose to use cross-motions

for summary judgment as the procedural vehicle to bring the case

forward for judicial review of the plan administrator's

determination cannot be permitted either to dilute the teachings of

Firestone or to undercut the standard of review that the Firestone

Court decreed for use in ERISA benefit denial cases. Cf. S. Shore

Hosp., Inc. v. Thompson, 308 F.3d 91, 97-98 (1st Cir. 2002) (taking

an analogous approach with respect to judicial review of decisions

of the Provider Reimbursement Review Board). This respectful

standard requires deference to the findings of the plan

administrator, and, thus, even under Fed. R. Civ. P. 56, does not

permit a district court independently to weigh the proof. Rather,

the district court must ask whether the aggregate evidence, viewed

in the light most favorable to the non-moving party, could support

a rational determination that the plan administrator acted

arbitrarily in denying the claim for benefits. This is also the

question we must ask, and answer, on appeal (affording de novo

review to the district court's appraisal).

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 III.

Analysis

We turn now to the merits of the denial of benefits. The

Plan's definition of "fully disabled" controls. That definition,

quoted above, is clear and unambiguous. As in many such instances,

however, the devil is in the details.

The basis for MetLife's determination is summarized in

a letter to the plaintiff dated March 16, 1998. That letter

reveals that MetLife premised the denial of benefits on several

sources of information, including statements and reports from the

plaintiff's treating physicians, findings gleaned from an

independent medical examination, the outcome of a functional

capacity assessment, the conclusions of two retained physicians who

reviewed the plaintiff's medical records at MetLife's behest, the

timing of the plaintiff's claim, and the Social Security

Administration's determination that the plaintiff was not disabled.

The medical evidence is extensive, and it would serve no

useful purpose to rehearse it here. Disability, like beauty, is

sometimes in the eye of the beholder. This is such a case: we

have scrutinized the record with care and conclude, without serious

question, that it is capable of supporting competing inferences as

to the extent of the plaintiff's ability to work. That clash does

not suffice to satisfy the plaintiff's burden. We have held

before, and today reaffirm, that the mere existence of

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contradictory evidence does not render a plan fiduciary's

determination arbitrary and capricious. Vlass, 244 F.3d at 30;

Doyle, 144 F.3d at 184. Indeed, when the medical evidence is

sharply conflicted, the deference due to the plan administrator's

determination may be especially great. See Fletcher-Merrit v.

Noram Energy Corp., 250 F.3d 1174, 1180 (8th Cir. 2001) (warning,

in this context, that a reviewing court "may not simply substitute

its opinion for that of the plan administrator"); Terry, 145 F.3d

at 41 (similar). For the reasons that follow, we conclude that

MetLife's determination that the plaintiff was not fully disabled

rests on substantial evidence (and, therefore, that the

determination survives review under the arbitrary and capricious

standard).

Here, the relevant definition of "full disability" harks

back to the employee's job description. It is undisputed that the

plaintiff's white-collar job did not entail operose physical tasks,

but, rather, was essentially sedentary.7 The plaintiff had been

functioning in this position prior to the layoff. MetLife's view

that he remained able to perform this job is anchored in

independent medical record reviews conducted by Dr. Robert Petrie

and Dr. Mark Moyer, respectively. Each reviewer found insufficient

7
The record indicates that the job required the plaintiff
mainly to sit. It involved standing less than 20% of the time and
walking less than 20% of the time.

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evidence to sustain a conclusion that the plaintiff was fully

disabled.

The outside reviewers' shared conclusion was buttressed

by other medical evidence. Dr. Frank F. Davidson, Jr., a treating

physician, declined just months before the asserted date of

disability to say that the plaintiff was disabled. He classified

the plaintiff's impairment as a "[m]oderate limitation of

functional capacity" and declared him capable of performing

sedentary activity that involved a mixture of sitting, standing,

and walking. The limitations that Dr. Davidson placed on those

activities fell well within the parameters of the plaintiff's job

description.

By like token, Dr. John L. Doherty, an independent

medical examiner selected by the plaintiff, stated in December of

1997 that the plaintiff could do sedentary work if accommodated.

Dr. Doherty described an appropriate accommodation as one that

allowed the plaintiff to readjust himself as needed and to move

about from time to time. The plaintiff's position as a

departmental administrator permitted this accommodation, and

Raytheon was willing to allow it.

Finally, the record is replete with other telltales on

which MetLife was entitled to rely. We mention three of them.

First, the results of a functional capacity assessment tended to

show not only that the plaintiff had the physical ability to do the

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work but also that he appeared to be overstating his limitations.

Second, the timing of the plaintiff's claim was highly suspicious.

The plaintiff had been working up until the time that Raytheon laid

him off; he did not file a disability claim until almost six months

thereafter (when his salary continuation benefits were about to

expire); and he asserted, coincidentally, that the onset date of

his disability was the day after he was furloughed. Last — but far

from least — the record reflects that the plaintiff had applied

unsuccessfully for social security disability benefits. The

rejection of his claim by the Social Security Administration, while

not dispositive of his effort to secure disability benefits under

the Plan, is some evidence that he was not fully disabled. Pari-

Fasano, 230 F.3d at 420.

The plaintiff also argues that the plan administrator

gave insufficient weight to the views of his treating physicians,

especially his principal orthopedist, Dr. William H. Harris. He

suggests that MetLife should have assiduously adhered to the so-

called "treating physician" rule, and that its failure to do so was

arbitrary and capricious.

The treating physician rule originated in the social

security setting and has been formalized by regulation in that

context. See 20 C.F.R. §§ 404.1527(d)(2), 416. 927(d)(2). The

rule requires that the factfinder (there, the administrative law

judge) weigh more heavily the opinions of the claimant's treating

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physicians in determining his or her eligibility for benefits. The

rationale for the rule is said to be that treating physicians have

the best opportunity "to know and observe the patient as an

individual." Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595,

600 (9th Cir. 1999).

The calculus of decision in social security cases differs

significantly from that employed in ERISA cases. In the former

instance, Congress and the Secretary of Health and Human Services

have established a specific framework for determining disability.

See Shaw v. Chater, 221 F.3d 126, 132 (2d Cir. 2000) (summarizing

the five-step progression under 20 C.F.R. §§ 404.1520, 416.920).

Goodermote v. Sec. of HHS, 690 F.2d 5, 6-7 (1st Cir. 1982)

(similar). This framework entails specially promulgated standards,

a shifted burden of persuasion, restricted discretion, and agency

involvement. The treating physician rule addresses this peculiar

combination of factors and forces the agency to pay particular heed

to the medical professionals who are in charge of a particular

claimant's case. No comparable combination of factors exists in

ERISA cases: there is no specially promulgated set of criteria, no

shifted burden of persuasion, no restricted discretion, and no

agency involvement. The fiduciary's decision is constrained only

by the language of the particular plan at issue and by a judge-made

adjudicative standard.

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 Several other courts of appeals, when faced with the

question of whether the treating physician rule should be extended

to ERISA cases, have expressed grave doubt. See, e.g., Turner v.

Delta Family-Care Disab. & Survivorship Plan, 291 F.3d 1270, 1274

(11th Cir. 2002); Sheppard & Enoch Pratt Hosp., Inc. v. Travelers

Ins. Co., 32 F.3d 120, 126 (4th Cir. 1994); Salley v. E.I. DuPont

de Nemours & Co., 966 F.2d 1011, 1016 (5th Cir. 1992) (dictum).

There is, however, respectable authority to the contrary. See

Regula v. Delta Family-Care Disab. Survivorship Plan, 266 F.3d

1130, 1139 (9th Cir. 2001) (2-to-1 decision).

This court has not yet taken a definitive position as to

the applicability vel non of the treating physician rule in ERISA

cases,8 and we see no need to do so today. Even if we assume, for

argument's sake, that the opinions of the plaintiff's treating

physicians should be accorded special weight, the plaintiff cannot

prevail in this case. While some of his doctors (Dr. Harris, for

example) stated that he was fully disabled, others (Dr. Davidson,

for example) took a different view. Moreover, even Dr. Harris

wavered. Although he originally expressed an opinion that the

8
We note, however, that our decisions reflect at least a tacit
reluctance to apply the treating physician rule in the ERISA
context. See, e.g., Vlass, 244 F.3d at 30-32 (upholding summary
judgment for defendant even though treating physician's reports
supported a finding of disability); Doyle, 144 F.3d at 186-87
(reversing the entry of summary judgment for plaintiff
notwithstanding treating physician's opinion that plaintiff was
disabled). These cases, however, do not explicitly discuss (and,
thus, do not foreclose) the issue.

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plaintiff was fully disabled, he agreed, in a subsequent

conversation with Dr. Moyer, that it was possible for the plaintiff

to return to work so long as he could move about from time to time.

Given the contours of the plaintiff's job, this freedom easily

could have been arranged — and Raytheon was willing to make the

accommodation (in point of fact, the record contains evidence that

the plaintiff already had received permission to move about

freely).

We add, finally, that even where the treating physician

rule holds sway, it is not an absolute. When other evidence

sufficiently contradicts the view of a treating physician, that

view appropriately may be rejected. See Regula, 266 F.3d at 1140

(collecting cases). Here, the administrative file contains a

plenitude of evidence which, if credited, rebuts a conclusion of

full disability.

The short of it, then, is that the plan administrator's

determination, though not inevitable, was solidly grounded.

Whether or not the treating physician rule applies in ERISA cases

— a question that we expressly reserve — the denial of benefits

here passes muster.

IV.

Conclusion

We need go no further. Given the contents of the record,

MetLife's finding of no full disability cannot be labeled

-19-
unreasonable, unsupported, or contrary to the clear weight of the

medical evidence. The ensuing denial of benefits was, therefore,

neither arbitrary nor capricious.

Affirmed.

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