Foster v. Sedgwick Claims Management Services, Inc.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 19, 2016 Decided November 29, 2016

No. 15-7150

KELLY FOSTER,

APPELLANT

v.

SEDGWICK CLAIMS MANAGEMENT SERVICES, INC., AND SUN

TRUST BANK SHORT AND LONG TERM DISABILITY PLANS,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:14-cv-01241)

Denise M. Clark argued the cause and filed the briefs for

Appellant.

Gregory L. Arbogast argued the cause for Appellees.

With him on the brief was James T. Heidelbach.

Before: ROGERS and TATEL, Circuit Judges, and

EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

EDWARDS.

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EDWARDS, Senior Circuit Judge: This appeal raises two

issues regarding the reach and application of the Employee

Retirement Income Security Act of 1974 (“ERISA”), 29

U.S.C. § 1001 et seq., with respect to private benefit plans.

The first issue concerns the definition of “payroll practices”

that are exempt from ERISA. The second addresses whether

terms of the ERISA plan at issue in this case grant discretion

to the plan administrator sufficient to warrant deferential

review of the administrator’s benefit determinations.

In July 2014, Appellant, Kelly Foster, sued Sedgwick

Claims Management Services, Inc. (“Sedgwick”) and Sun

Trust Bank Short and Long Term Disability Plans (together

“Appellees”) under ERISA, 29 U.S.C. § 1132(a), to enforce

her rights under short-term and long-term disability benefit

plans that had been adopted by her employer, Sun Trust Bank

(“SunTrust”). The District Court found that the short-term

plan was a “payroll practice” exempted from ERISA’s ambit

by a Department of Labor regulation. Appellant initially

conceded this point. Foster v. Sedgwick Claims Mgmt. Servs.,

Inc., 125 F. Supp. 3d 200, 205 (D.D.C. 2015). Because

Appellant’s sole cause of action with respect to the short-term

plan rested on ERISA, the District Court rejected Appellant’s

claim. The District Court additionally found that the long-

term plan gave Sedgwick, the plan administrator, sole

discretion to “evaluate” an employee’s medical evidence and

“determine” if the employee’s condition meets the plan’s

definition of disability. Id. at 206–07. The District Court

accordingly applied a deferential standard of review to

Sedgwick’s denial of long-term disability benefits sought by

Appellant and concluded that the administrator had neither

abused its discretion nor acted arbitrarily or capriciously in

assessing Appellant’s claim for benefits. Id. at 206–11. The

District Court granted summary judgment to Appellees and

dismissed Appellant’s complaint. Id. at 211.

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Appellant filed a motion for reconsideration. She

admitted she had conceded that the short-term disability plan

was exempt from ERISA during summary judgment, but

argued that the District Court’s embrace of this position

constituted an error of law. The District Court rejected

Appellant’s attempt to raise a new legal theory in a motion for

reconsideration when the same claim could have been

asserted during summary judgment. The District Court denied

the motion for reconsideration. Foster v. Sedgwick Claims

Mgmt. Servs., Inc., 159 F. Supp. 3d 11, 13–16 (D.D.C. 2015).

We affirm the District Court at each turn. First, we affirm

the District Court’s finding that the short-term disability plan

is an ERISA-exempt “payroll practice” under Department of

Labor regulations. Second, we hold that the District Court

appropriately applied a deferential standard of review to the

administrator’s denial of benefits under the long-term

disability plan because the terms of the plan unambiguously

grant the administrator, and the administrator alone, the power

to construe critical terms of the plan and to decide an

employee’s eligibility for benefits. Finally, we hold that the

District Court did not abuse its discretion in denying

Appellant’s motion for reconsideration.

I. BACKGROUND

A. Statutory and Regulatory Background

Congress enacted ERISA to “promote the interests of

employees and their beneficiaries in employee benefit plans

and to protect contractually defined benefits.” Firestone Tire

& Rubber Co. v. Bruch, 489 U.S. 101, 113 (1989) (citations

and internal quotation marks omitted). It found that employee

benefit plans “affect[] the stability of employment and the

successful development of industrial relations . . . [and are] an

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important factor in commerce because of the interstate

character of their activities.” 29 U.S.C. § 1001(a). Under

ERISA, a benefit plan participant may sue “to recover

benefits due to him under the terms of his plan, [or] to enforce

his rights under the terms of the plan.” 29 U.S.C. §

1132(a)(1)(B). Overall, ERISA represents a “‘careful

balancing’ between ensuring fair and prompt enforcement of

rights under a plan” and encouraging the creation of such

plans. Conkright v. Frommert, 559 U.S. 506, 517 (2010)

(citation and internal quotation marks omitted).

Under 29 U.S.C. § 1135, the Secretary of Labor is

authorized to prescribe regulations deemed necessary or

appropriate to carry out the provisions of ERISA. Pursuant to

this authority, Department of Labor regulations exempt

certain “payroll practices” from ERISA’s ambit. An exempt

payroll practice includes “[p]ayment of an employee’s normal

compensation, out of the employer’s general assets, on

account of periods of time during which the employee is

physically or mentally unable to perform his or her duties, or

is otherwise absent for medical reasons.” 29 C.F.R. § 2510.3-

1(b)(2).

B. Factual and Procedural Background

We review de novo the District Court’s order granting

summary judgment. See Lopez v. Council on Am.-Islamic

Relations Action Network, Inc., 826 F.3d 492, 496 (D.C. Cir.

2016). In doing so, we view the evidence and draw all

reasonable inferences in favor of the non-moving party. See

id. The material facts in this case, which are undisputed, are

summarized below.

SunTrust provides its employees with both short-term

and long-term disability benefit plans. Appellee Sedgwick

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administers both plans on behalf of SunTrust. According to

SunTrust’s Health and Welfare Benefits Handbook (“Benefits

Handbook”), Joint Appendix (“JA”) 19–36, 45–59,

SunTrust’s short-term disability plan “provides benefits if an

eligible employee is unable to work because of an approved

disability.” Id. at 25. Benefits are paid from SunTrust’s

“general assets.” Id. “Full-time employees receive a

combination of [short-term] benefits paid at 100% and 60% of

base pay for their first illness/injury occurrence in each

calendar year.” Short-Term Disability Summary, JA 38.

Employees are deemed to have an approved disability if they

are “not able, solely because of disease or injury to perform

the material duties of their own occupation.” Id. at 39.

Employees’ claims for short-term disability must be

supported by “objective medical documentation.” Id. The

claims administrator determines whether employee claimants

meet the definition of “disability” and whether their medical

documentation is sufficient to support a claim for benefits. Id.

at 38.

SunTrust’s long-term disability plan, which is part of a

larger Employee Benefit Plan and funded through a trust,

“provides financial assistance to eligible employees who are

totally unable to work, as determined by the claims

administrator, due to an illness or injury after 180 days.”

Benefits Handbook, JA 46. The long-term plan uses

substantially the same definition of disability as the short-term

plan, but requires an employee to be “totally disabled as

determined by the claims administrator” for 180 days. Id. To

make this determination, the “claims administrator will

evaluate the medical documentation submitted on [the

employee’s] behalf and determine if [his/her] condition meets

the Plan’s definition of Total Disability.” Id. at 48. Sedgwick

approves a claim for long-term disability benefits “[o]nce

satisfactory proof that [the employee] ha[s] been Totally

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Disabled for 180 calendar days has been provided to the

claims administrator.” Id. at 56. If Sedgwick denies a claim, it

must give the specific reason for denial and the “specific Plan

or policy provisions on which the denial is based.” Id.

Employees have a right to appeal Sedgwick’s initial denial of

a claim to a different decision-maker at Sedgwick, who makes

a final decision. See id. at 56–57.

SunTrust employed Appellant Kelly Foster as a Mortgage

Loan Closer until September 2012. In January and August

2012, Appellant submitted claims for short-term disability

benefits for missing work due to a variety of ailments.

Sedgwick denied her claims, citing Appellant’s failure to

provide sufficient “objective medical documentation” in

support of her claims. SunTrust terminated Appellant on

September 25, 2012, because of her absences from work.

Appellant appealed Sedgwick’s denial of her short-term

disability benefits claim. Sedgwick upheld its denial on

March 29, 2013. In October 2013, Appellant submitted a

claim for long-term disability benefits. Sedgwick denied this

claim, as well, and Appellant appealed again. Sedgwick

upheld this denial on January 27, 2014.

In July 2014, Appellant sued Appellees under ERISA, 29

U.S.C. § 1132(a), to enforce her rights under both the short-

term and long-term disability benefit plans. Appellees moved

for summary judgment. Appellees argued, and Appellant

conceded, that the short-term disability plan was an ERISA-

exempt payroll practice and thus Appellant could not seek

review of her denial under ERISA. The District Court

independently found that since the short-term disability plan

was paid from SunTrust’s general assets and was “entirely

separate” from the Employee Benefits Plan, it was “properly

characterized as a payroll practice” and exempt from ERISA.

Foster, 125 F. Supp. 3d at 205. Since Appellant’s “Complaint

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expressly invoke[d] ERISA alone,” id., the District Court had

no alternative cause of action to adjudicate, and it granted

Appellees summary judgment as to the short-term disability

plan, see id. at 205–06.

As to the long-term disability plan, the District Court

found the plan documents vested Sedgwick with broad

discretionary authority, triggering a deferential standard of

review under Firestone, 489 U.S. at 115. Foster, 125 F. Supp.

3d at 206–07. Applying that standard, the District Court found

Sedgwick had not abused its discretion nor acted arbitrarily or

capriciously in denying Appellant’s claim for long-term

disability given her failure to submit sufficient objective

medical documentation. Id. at 207–10. The District Court

granted Appellees’ motion for summary judgment in full on

August 28, 2015.

Appellant timely moved for reconsideration. Among

other arguments, she asserted that, in spite of her concession,

the District Court committed an error of law in finding that

the short-term disability plan was exempt from ERISA. The

District Court denied her motion for reconsideration on

December 1, 2015.

Appellant appealed to this court on December 3, 2015.

Appellant’s notice of appeal designated only the order

granting Appellees summary judgment and did not

specifically designate the order denying her motion for

reconsideration. However, based on Appellant’s electronic

submissions to the Clerk’s Office, the court’s docket entry on

December 3, 2015, identified Appellant’s notice of appeal “as

to 34 Order on Motion for Reconsideration . . . , [and] 28

Order on Motion for Summary Judgment.” The docket entry

references to “34” and “28” are hyperlinked to each appealed

order in the District Court docket. On January 13, 2016,

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Appellant submitted her civil docketing statement, Rulings

under Review certificate, statement of issues, and the

Underlying Decision in Case — each of which designated

both the order granting Appellees summary judgment and the

order denying Appellant’s motion for reconsideration. The

parties fully briefed both orders.

II. ANALYSIS

A. Scope of the Appeal

As a threshold matter, we reject Appellees’ claim that we

lack jurisdiction to consider Appellant’s challenge to the order

denying her motion for reconsideration because she failed to

designate it in her notice of appeal. The Court’s records

indicate that Appellant timely and properly gave notice that

she appealed from both orders.

We have jurisdiction to review a mistakenly undesignated

order where “the intent to appeal . . . can be fairly inferred

from appellant’s notice (and subsequent filings) and the

opposing party is not misled by the mistake.” Messina v.

Krakower, 439 F.3d 755, 759 (D.C. Cir. 2006) (internal

quotation marks omitted) (quoting Foretich v. ABC, 198 F.3d

270, 274 n.4 (D.C. Cir. 1999)); see Brookens v. White, 795

F.2d 178, 180–81 (D.C. Cir. 1986) (per curiam). Appellant

timely filed her notice of appeal on December 3, 2015, and

gave sufficient notice in five contemporaneous appellate

filings from December 3, 2015, through January 13, 2016,

that her appeal included a challenge to the District Court’s

denial of her motion for reconsideration, in addition to its

grant of Appellees’ motion for summary judgment. That

provided adequate notice to Appellees. See Messina, 439 F.3d

at 759 (holding that a Rule 28(a)(1) filing provided adequate

notice of the intent to appeal from an undesignated order);

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Sinclair Broad. Grp., Inc. v. FCC, 284 F.3d 148, 158 (D.C.

Cir. 2002) (deeming statement of issues filed thirty-four days

after the petition for review to be “contemporaneous,” but

motion for stay filed ninety-one days later not

“contemporaneous”). Appellees do not claim to have been

misled as to the scope of the appeal and fully briefed the

issues. Our jurisdiction therefore extends to the order denying

Appellant’s motion for reconsideration.

B. The District Court’s Finding that the Short-Term

Disability Plan is an Exempt “Payroll Practice”

The District Court found that SunTrust’s short-term

disability plan is a “payroll practice” exempt from ERISA.

We agree.

ERISA applies to private “employee benefit plans.” 29

U.S.C. § 1001. The statute defines an employee benefit plan

as “an employee welfare benefit plan” or “an employee

pension benefit plan.” 29 U.S.C. § 1002(3). An “employee

welfare benefit plan” includes:

any plan, fund, or program which was . . . established

or maintained by an employer . . . to the extent that

such plan, fund, or program was established or is

maintained for the purpose of providing for its

participants or their beneficiaries, through the

purchase of insurance or otherwise, (A) medical . . .

care or benefits, or benefits in the event of sickness,

accident, disability . . . .

29 U.S.C. § 1002(1).

There is no dispute that without the Department of

Labor’s regulatory exemption, SunTrust’s short-term

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disability benefit plan would constitute an “employee welfare

benefit plan” under ERISA. However, the Department of

Labor exempts from ERISA certain “payroll practices,”

including

[p]ayment of an employee’s normal compensation,

out of the employer’s general assets, on account of

periods of time during which the employee is

physically or mentally unable to perform his or her

duties, or is otherwise absent for medical reasons.

29 C.F.R. § 2510.3-1(b)(2). The Supreme Court has upheld

this “payroll practices” exemption, see Massachusetts v.

Morash, 490 U.S. 107, 116–19 (1989), and Appellant does

not contest the legality of the regulation.

In response to Appellees’ motion for summary judgment

in the District Court, Appellant conceded that the short-term

disability benefit plan was a payroll practice. The District

Court nevertheless independently evaluated the plan and

concluded that it was a payroll practice because it was paid

from SunTrust’s general assets and was “entirely separate”

from SunTrust’s ERISA-covered Employee Benefits Plan.

We have no basis to overturn the District Court’s judgment on

this point.

SunTrust’s short-term disability plan clearly fits within

the regulatory definition of “payroll practices.” It is payment

of an employee’s normal compensation; it is paid from the

employer’s general assets; and it is paid on account of time

during which the employee is absent for medical reasons. See

29 C.F.R. § 2510.3-1(b)(2). Indeed, it appears SunTrust

drafted its short-term disability plan to match the regulatory

exemption. Since the parties do not dispute these fundamental

aspects of the short-term disability plan, we might end our

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inquiry here. Appellant, however, reversed her position after

the District Court granted summary judgment for Appellees.

In her appeal to this court, Appellant now insists that

“[t]he record demonstrates that the relationship between

SunTrust and Sedgwick and the administration of the short-

term disability benefits establishes an on-going administrative

scheme which subjects the Plan to ERISA.” Br. for Appellant

at 5. There are two problems with this argument: First, the

argument comes too late because it was not properly raised

and preserved during the proceedings before the District

Court. See Singleton v. Wulff, 428 U.S. 106, 120–21 (1976)

(noting that appellate courts generally refrain from

considering an issue not passed upon below). Second, the

argument rests on a flawed assumption.

As noted above, before the District Court, Appellant

conceded that the short-term plan was exempt from ERISA.

And it would not matter that Appellant sought to raise the

issue in her motion for reconsideration because the District

Court properly rejected her claim as untimely. See infra Part

II.D. Therefore, the argument that she now raises was never

addressed by the District Court. That resolves the matter. And

in any case, Appellant’s belated claim is misguided. See

Singleton, 228 U.S. at 121 (noting that the “matter of what

questions may be taken up and resolved for the first time on

appeal is one left primarily to the discretion of the courts of

appeals”).

Appellant principally relies on Fort Halifax Packing Co.,

Inc. v. Coyne, 482 U.S. 1 (1987), in support of her contention

that the presence of an ongoing administrative scheme in

SunTrust’s short-term plan compels the conclusion that it is a

non-exempt ERISA plan. Neither Fort Halifax nor any of the

other cases cited by Appellant support this claim. The Court

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in Fort Halifax merely held that “a Maine statute requiring

employers to provide a one-time severance payment to

employees in the event of a plant closing” was not preempted

by ERISA. Id. at 3; see id. at 3–4. The Court noted that

because the state law at issue only governed a one-time

benefit provision, it did not constitute a “plan” potentially

governed by ERISA nor implicate the need for ERISA

preemption. Id. at 11–12, 14–15. The Court, however, did not

address plans that are exempt from ERISA pursuant to

Department of Labor regulations.

In Fort Halifax the issue was whether the provision of a

certain type of benefit should be construed as a plan that is

within the compass of ERISA. The question here is whether a

benefit program that clearly falls within the compass of

ERISA is nevertheless exempt from ERISA pursuant to

Department of Labor regulations. The answer here is yes.

SunTrust’s short-term disability benefit plan falls squarely

within the exemption under 29 C.F.R. § 2510.3-1(b)(2). See

Stern v. Int’l Bus. Machs. Corp., 326 F.3d 1367, 1373 (11th

Cir. 2003) (applying 29 C.F.R. § 2510.3-1(b) to a benefit

program that would “clearly qualify as an ERISA plan but for

its specific exemption by a reasonably justified regulation”).

Appellant also argues that the fact that a benefit is paid

from general assets does not necessarily exempt a plan from

ERISA. See, e.g., Fort Halifax, 482 U.S. at 7 n.5 (“[ERISA]

has been construed to include severance benefits paid out of

general assets, as well as out of a trust fund”). That may be

true, but it is irrelevant in this case. SunTrust’s short-term

plan presents a tri-fold match to the exemption under 29

C.F.R. § 2510.3-1(b)(2): paying normal wages, from general

assets, on account of work missed due to medical reasons. We

do not need to decide whether one factor is more important

than another, nor how many must be met in order for the

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exemption to apply. Here, all factors are met, including the

nature of the benefits and the source of the funds. See

Morash, 490 U.S. at 120.

In sum, the short-term disability plan is clearly exempt

from ERISA. Therefore, the District Court properly granted

Sedgwick summary judgment as to that plan.

C. The Deference Due to the Plan Administrator’s

Benefit Determinations Under the Long-Term

Disability Plan

The District Court applied a deferential standard of

review in assessing the plan administrator’s denial of benefits

to Appellant under the long-term disability plan. Appellant

asserts that the District Court should have undertaken de novo

review of her ERISA claim under 29 U.S.C. § 1132(a)(1)(B).

We disagree.

A claim under § 1132(a)(1)(B) is reviewed de novo

except where the plan vests the administrator with

“discretionary authority to determine eligibility for benefits or

to construe the terms of the plan.” Firestone, 489 U.S. at 115

(emphasis added). When the terms of a plan confer such

discretion, an administrator’s denial of benefits is reviewed

under an abuse of discretion or arbitrary and capricious

standard, a standard which, in this particular context, we have

referred to as “reasonableness.” Moore v. CapitalCare, Inc.,

461 F.3d 1, 11 (D.C. Cir. 2006). On the record before us, we

conclude that the District Court properly applied a deferential

standard of review because the long-term disability benefit

plan here vests Sedgwick with discretion to construe disputed

terms of the plan and determine eligibility for benefits.

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In reaching this conclusion, we have looked for guidance

from both Firestone and the Court’s later decisions in Metro.

Life Ins. Co. v. Glenn, 554 U.S. 105 (2008), and Conkright.

The Court’s later cases confirm that, in assessing a claim

under § 1132(a)(1)(B), a court must consider “trust law, the

terms of the plan at issue, and the principles of ERISA.”

Conkright, 559 U.S. at 512; see also Metro Life Ins. Co., 554

U.S. at 110–11. Having done this, we conclude that the

unambiguous grant of discretion to the administrator of the

SunTrust long-term disability plan triggers deferential review

of the administrator’s assessments of benefit claims under the

plan.

1. Principles of Trust Law

In looking to trust law, we “analogize a plan

administrator to the trustee of a common-law trust; and . . .

consider a benefit determination to be a fiduciary act.” Metro.

Life Ins., 554 U.S. at 111. In Firestone, the Supreme Court

concluded that deference was owed to plan administrators,

acting as trustees, “in the exercise of a discretion vested in

them by the instrument under which they act.” 489 U.S. at 111

(quoting Nichols v. Eaton, 91 U.S. 716, 724–25 (1875)). In

Conkright, the Supreme Court found trust law “unclear on the

narrow question” before it, whether an administrator’s prior

mistake overrode the necessity of deferential review, but

noted that “if the settlor who creates a trust grants discretion

to the trustee, it seems doubtful that the settlor would want the

trustee divested entirely of that discretion simply because of

one good-faith mistake.” 559 U.S. at 514.

Here, general principles of trust law support our

conclusion that the terms of SunTrust’s long-term disability

plan effectively limit judicial review of administrator

determinations to reasonableness, not de novo. The

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Restatement (Third) of Trusts recognizes that a trustee’s

powers may be express or implied. RESTATEMENT (THIRD) OF

TRUSTS § 85 reporter’s note cmt. a (2005). And leading

modern treatises “indicat[e] considerable flexibility” in

ascertaining the extent of a trustee’s power as implied by the

terms of a trust instrument. Id. cmt. a. For instance, “[i]f a

settlor has directed the trustee to accomplish a certain

objective, he must be deemed to have intended that the trustee

use the ordinary and natural means of obtaining that result.”

Id. reporter’s note cmt. a (quoting GEORGE G. BOGERT &

GEORGE T. BOGERT, THE LAW OF TRUSTS AND TRUSTEES

§ 551 (rev. 2d ed. 1980)). In other words, a reviewing court

may determine that the settlor intended for “the trustee to

have such power, although he did not in so many words grant

the authority.” Id. (quoting GEORGE T. BOGERT, TRUSTS § 88

(6th ed. 1987)). Likewise, an ERISA plan document may

show that the employer intended for the administrator to have

discretionary powers to construe terms or determine eligibility

if the terms of the plan direct the administrator to obtain

specified objectives of the plan without specifying the means

by which to achieve them.

2. The Terms of SunTrust’s Long-Term Disability

Plan

In assessing the terms of the SunTrust long-term

disability plan, we look first to the Summary Plan

Description. Although the Summary is not itself legally

binding, CIGNA Corp. v. Amara, 563 U.S. 421, 437–38

(2011), it provides important information for beneficiaries

about the plan. In Pettaway v. Teachers Ins. & Annuity Ass’n

of Am., we noted that a Summary Plan Description is an

“ERISA-mandated, plain-language document upon which

plan participants may rely to understand their benefits.” 644

F.3d 427, 433 (D.C. Cir. 2011). We therefore concluded that a

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Summary may “be examined to determine the appropriate

standard of review.” Id. Pettaway does not take account of the

Court’s decision in CIGNA Corp., but we do not view the

decision issued by this court to be at odds with the direction

given by the Supreme Court. A court may look at a Summary

for guidance, but it must remain mindful that the terms of a

Summary “do not themselves constitute the terms of the

plan.” CIGNA Corp., 563 U.S. at 438.

The Summary Plan Description covering the SunTrust

long-term disability benefit plan references the Health &

Welfare Benefits Handbook, which in turn details the terms of

the plan and explains the administrator’s authority. The

parties do not dispute that the terms of the Benefits Handbook

are binding. See Br. for Appellant at 7; Br. for Appellees at 3.

The Handbook makes it clear that Sedgwick — and

Sedgwick alone — has the power to construe disputed terms

of the plan and determine eligibility for benefits. For instance,

the plan states: “The claims administrator has 45 calendar

days in which to make a determination regarding whether

your medically-documented claim entitles you to a Long-

Term Disability benefit. . . . Once satisfactory proof that you

have been Totally Disabled for 180 calendar days has been

provided to the claims administrator and your application for

LTD benefits has been approved, you will receive a written

notice of the claim approval.” JA 55–56.

The plan elsewhere states:

• “If you are approved for LTD benefits, your

premiums . . . will be waived for as long as you

continue to be totally disabled as determined by the

claims administrator.” JA 46.

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• “The claims administrator will evaluate the medical

documentation submitted on your behalf and

determine if your condition meets the Plan’s

definition of Total Disability.” JA 48.

• “You are disabled if, due to injury, illness, or

pregnancy supported by objective medical

documentation, you meet the following definition of

disability as determined by the claims administrator:

o You are unable to perform each of the

material duties of the occupation you

regularly perform for SunTrust . . . .” JA 48.

• “[Benefits end on] [t]he date that you fail to provide

satisfactory proof of continuation of total disability.”

JA 52.

• “For purposes of receiving [long-term] benefits,

whether you are disabled will be determined based on

objective medical evidence provided to the claims

administrator about your condition.” JA 57.

Moreover, when the administrator denies a claim, it must

list the specific reason for the denial and the “specific Plan or

policy provisions on which the denial is based.” JA 56. In

exercising this authority, the administrator must of course

interpret and apply the terms of the plan.

Finally, under the long-term plan, any appeal of the

administrator’s denial of benefits is to the administrator. No

one but the administrator determines whether an employee is

eligible for benefits. And there is no detailed rubric by which

the administrator is constrained in determining whether the

definition of disability is met. Instead, the definition is broad,

leaving it to the administrator to construe critical terms and

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phrases such as “objective medical documentation,” “unable

to perform,” “material duties,” and “satisfactory proof.”

In our view, these unambiguous grants of discretion to

the administrator of the SunTrust long-term disability plan

compel deferential review of the administrator’s assessments

of benefit claims under the plan. Prevailing case law supports

this conclusion.

In Conkright, the plan granted the administrator “broad

discretion in making decisions relative to the Plan.” 559 U.S.

at 512 (internal quotation marks omitted). In Block v. Pitney

Bowes Inc., we surveyed similar “[e]mpowering language”

other courts had found to vest discretion in the administrator.

952 F.2d 1450, 1453 (D.C. Cir. 1992). This language included

statements such as: where “any construction [of the

agreement’s provisions] adopted by the Trustees in good faith

shall be binding,” Cent. States, Se. & Sw. Areas Pension Fund

v. Cent. Transp., Inc., 472 U.S. 559, 568 (1985) (citation and

internal quotation marks omitted); where trustees had “power

to construe [plan] provisions” and “any construction adopted

by the [t]rustees in good faith is binding,” Exbom v. Cent.

States, Se. & Sw. Areas Health & Welfare Fund, 900 F.2d

1138, 1141 (7th Cir. 1990); where administrators had power

“[t]o determine all benefits and resolve all questions

pertaining to the administration, interpretation and application

of Plan provisions,” De Nobel v. Vitro Corp., 885 F.2d 1180,

1186 (4th Cir. 1989); and where the plan charged

administrators to determine “‘which Employees are eligible to

participate in the Plan,’ and [to] ‘provide all parties dealing

with the Plan an interpretation of Plan provisions on

request,’” Curtis v. Noel, 877 F.2d 159, 161 (1st Cir. 1989).

See Block, 952 F.2d at 1453. The long-term disability plan at

issue here, when read as a whole, grants comparable authority

to the plan administrator.

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In Block itself we considered an explicit grant of

discretion: the administrator had all power “to interpret and

construe the Plan [and] to determine all questions of

eligibility and the status and rights of participants.” Id. at

1452. Nevertheless, we concluded, “[w]hat counts, in sum, is

the character of the authority exercised by the administrators

under the plan.” Id. at 1454 (emphasis added). In interpreting

Firestone we said the Supreme Court “surely did not suggest

that ‘discretionary authority’ hinges on incantation of the

word ‘discretion’ or any other ‘magic word.’” Id. at 1453.

Instead, Firestone “directed lower courts to focus on the

breadth of the administrators’ power,” id., and agreed with the

Fourth Circuit that it “need only appear on the face of the plan

documents that the fiduciary has been ‘given [the] power to

construe disputed or doubtful terms’—or to resolve disputes

over benefits eligibility,” id. (quoting De Nobel, 885 F.2d at

1187).

The grant of discretion to Sedgwick under the SunTrust

long-term disability plan is not as explicit as the language in

Block and the cases cited therein. Nonetheless, we find the

language here is more than sufficient to satisfy the standards

set forth by the Court in Firestone, Metro. Life Ins., and

Conkright. Furthermore, in Block we cited with approval the

First Circuit’s decision in Curtis. See 952 F.2d at 1453. In

Curtis, the court held that provisions stating that the plan

administrator shall determine “which Employees are eligible

to participate in the Plan,” and shall “provide all parties

dealing with the Plan an interpretation of Plan provisions on

request” were sufficient to justify deferential review of the

administrator’s determinations. Curtis, 877 F.2d at 161. Our

decision in Block also states:

Under Firestone, reasonableness review is in order if

the administrator has “discretionary authority to

20

determine eligibility for benefits or to construe the

terms of the plan.” 489 U.S. at 115. . . . Thus, . . .

power to “interpret and construe” the plan or . . .

power to make “final and binding” decisions . . .,

standing alone, would probably meet the Firestone

test for deferential review.

Block, 952 F.2d at 1453 n.4.

Block thus instructs that “discretionary authority” does

not “hinge[] on incantation of the word ‘discretion’ or any

other ‘magic word.’” Id. at 1453. In this case, we find that

SunTrust’s long-term disability plan vested Sedgwick with

discretion through multiple provisions of the plan sufficient to

limit review. We therefore conclude that, according to the

terms of the plan, the District Court correctly applied a

deferential standard of review in assessing the plan

administrator’s denial of benefits to Appellant under the long-

term disability plan.

3. Principles of ERISA

Lastly, we turn to the principles of ERISA to ensure that

the District Court appropriately applied a deferential standard

of review to the long-term disability plan. See Conkright, 559

U.S. at 512. “ERISA represents a careful balancing between

ensuring fair and prompt enforcement of rights under a plan

and the encouragement of the creation of such plans.” Id. at

517 (quoting Aetna Health Inc. v. Davila, 542 U.S. 200, 215

(2004)) (internal quotation marks omitted). Because

administrative and litigation costs can “unduly discourage

employers from offering [ERISA] plans in the first place,”

ERISA encourages the creation of benefit plans and

maintaining high levels of benefits in existing plans by

promoting efficiency and minimizing administrative and

21

litigation costs. Id. (citation and internal quotation marks

omitted). ERISA’s purposes include “assuring a predictable

set of liabilities” through uniform standards and a uniform

remedial scheme. Id. (citation and internal quotation marks

omitted).

“Firestone deference protects these interests and, by

permitting an employer to grant primary interpretive authority

over an ERISA plan to the plan administrator, preserves the

‘careful balancing’ on which ERISA is based.” Id. The

Supreme Court reasoned that Firestone deference promoted

ERISA’s goals of efficiency, predictability, and uniformity

“by encouraging resolution of benefits disputes through

internal administrative proceedings,” allowing the “employer

[to] rely on the expertise of the plan administrator rather than

worry about unexpected and inaccurate plan interpretations

that might result from de novo judicial review,” and “helping

to avoid a patchwork of different interpretations of a plan”

spanning multiple jurisdictions. Id. If employers could not

adopt plans that give administrators discretion, it “might lead

those employers with existing plans to reduce benefits, and

those without such plans to refrain from adopting them.” Id.

(quoting Fort Halifax, 482 U.S. at 11).

Firestone instructs us that when discretion is not clearly

granted to the administrator, de novo review is appropriate

because, in that case, deferential review “would afford less

protection to employees and their beneficiaries than they

enjoyed before ERISA was enacted.” 489 U.S. at 113–14.

However, the Court was equally clear in saying that “[n]either

general principles of trust law nor a concern for impartial

decisionmaking . . . forecloses parties from agreeing upon a

narrower standard of review.” Id. at 115.

22

We apply ordinary principles of contractual interpretation

in assessing the terms of an ERISA plan. See M & G

Polymers USA, LLC v. Tackett, 135 S. Ct. 926, 933 (2015);

Heimeshoff v. Hartford Life & Accident Ins. Co., 134 S. Ct.

604, 611–12 (2013); see also Cassidy v. Akzo Nobel Salt, Inc.,

308 F.3d 613, 615 (6th Cir. 2002). As we have already

indicated, the plan documents here evidence an intent on the

behalf of the settlor, SunTrust, to vest the trustee, Sedgwick,

with discretionary power to construe the terms of the plan and

determine eligibility for benefits. SunTrust obviously

intended to grant broad authority to Sedgwick and to rely on

Sedgwick’s expertise in administering the plan. Consequently,

reviewing Sedgwick’s denial of benefits to Appellant with

due deference, as the employer intended, preserves ERISA’s

careful balancing, provides SunTrust with efficiency in

relying on Sedgwick and predictability in uniform liability,

and preserves the incentive to continue providing ERISA

benefits to its employees.

By giving Sedgwick the power to “make a

determination” as to whether a claimant is “entitle[d]” to

benefits, “evaluate” the submitted “objective medical

documentation,” decide whether a claimant’s proof is

“satisfactory,” “determine[]” whether a claimant is “totally

disabled,” selecting which duties are “material” and

determining whether the claimant is “unable to perform

them,” and “approve[]” applications by claimants, SunTrust

unambiguously gave Sedgwick the power to interpret material

terms of the plan and determine eligibility for benefits. JA

46–48, 52. We therefore conclude that the District Court

properly applied a deferential standard of review because,

reading the plan as a whole, it plainly vests Sedgwick with

discretion to construe disputed terms of the plan and

determine eligibility for benefits. The District Court did not

err in reviewing the Sedgwick’s benefit determinations under

23

a deferential standard of review and in concluding that

Sedgwick had not abused its discretion or acted in an arbitrary

or capricious way in denying Appellant’s claim for long-term

disability benefits.

D. Denial of Motion for Reconsideration

We also affirm the District Court’s denial of Appellant’s

motion for reconsideration. A motion for reconsideration “is

discretionary and need not be granted unless the district court

finds that there is an intervening change of controlling law,

the availability of new evidence, or the need to correct a clear

error or prevent manifest injustice.” Firestone v. Firestone, 76

F.3d 1205, 1208 (D.C. Cir. 1996) (per curiam) (citations and

internal quotation marks omitted). None of these factors are

present here.

Appellant acknowledges that she conceded the short-term

disability plan was exempt from ERISA during summary

judgment proceedings. The only ground that Appellant

offered to support her motion for reconsideration was that her

concession was an error. When a party first argues an

unavailing theory of liability, and then attempts to argue an

alternative or contrary position in a motion for

reconsideration, this constitutes neither new evidence nor a

clear error of law sufficient to support a motion for

reconsideration. See Patton Boggs LLP v. Chevron Corp., 683

F.3d 397, 402–03 (D.C. Cir. 2012). Moreover, as discussed

above, the District Court independently and correctly found

that the short-term disability plan was exempt from ERISA.

Appellant argues in the alternative that even if the short-

term plan is not an ERISA plan, it “relates to” the long-term

plan, which is an ERISA plan. See Br. for Appellant at 15. As

a result, she contends ERISA relief must be available to her

24

because a state-law breach of contract claim would not

survive ERISA’s broad preemption. See id. (citing 29 U.S.C.

§ 1144). In other words, Appellant asserts that because

eligibility under the long-term — ERISA — plan is

intertwined with eligibility under the short-term — non-

ERISA — plan, the two are “related,” thereby preempting any

non-ERISA claims for relief. See id. at 16–18. However, as

the District Court noted, “the Supreme Court has been clear

that the ‘relate to’ language in ERISA’s preemption clause

only excludes state-law causes of action in which ‘the

existence of an ERISA plan . . . is a critical factor in

establishing liability.’ Yet that is not the case here, for nothing

in the [long-term plan] would have any bearing on the merits

of a breach-of-contract claim based on the denial of [short-

term] benefits.” 159 F. Supp. 3d at 14 (citation omitted)

(quoting Ingersoll–Rand Co. v. McClendon, 498 U.S. 133,

139–40 (1990)). The District Court correctly ruled that

“because eligibility for [short-term] benefits is not at all

affected by the [long-term plan], no state-law cause of action

based on the [short-term plan] ‘relates’ to the [long-term plan]

in such a way that it would be preempted by ERISA.” Id. at

15. The court thus concluded that, even if not waived,

Appellant’s new theories about the short-term plan provided

no basis for overturning the court’s dismissal.

Therefore, the District Court did not err in denying

Appellant’s motion for reconsideration. We affirm its denial.

III. CONCLUSION

For the foregoing reasons, we affirm the judgment of the

District Court.

So ordered.