Petition for Writ of Certiorari — Jennifer Perkins, Petitioner v. US Airways, Inc., et al.

No. __________

In the Supreme Court of the United States

JENNIFER PERKINS ,

Petitioner,

v.

US AIRWAYS, INC..; U.S. AIRWAYS GROUP;

AMERICAN AIRLINES GROUP, successor by merger to

U.S. AIRWAYS, INC.; and US AIRWAYS HEALTH

BENEFIT PLAN,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

NEKKI SHUTT

Counsel of Record

JACQUELINE M. PAVLICEK

BURNETTE SHUTT & MCDANIEL, P.A.

912 LADY STREET, SUITE 200

COLUMBIA, SOUTH CAROLINA 29201

(803) 904-7912

NS HUTT@BURNETTESHUTT.L AW

Attorneys for Petitioner

QUESTIONS PRESENTED

Petitioner has been continuously employed as a

flight attendant with Respondent US Airways, Inc.

(US Air), a member of the flight attendants’ union,

and a participant in the US Airways Health Benefit

Plan (the Plan) since 1992.

Lightning struck

Petitioner on a jetway while she was working for US

Air. Petitioner continued working for US Air without

taking a leave of absence after she was struck.

Petitioner’s condition worsened considerably, and she

has been on approved medical leave of absence since

October 2001. Petitioner began receiving long-term

disability benefits from US Air in February 2002, and

she began receiving Medicare disability benefits in

September 2003.

As a result of her current

employment status with US Air and her membership

in the union, Petitioner is entitled to continue

receiving benefits, including retirement benefits,

health benefits, and seniority through US Air. While

on approved medical leave, Petitioner has experienced

several issues with Respondents improperly

determining its payer status as secondary to

Medicare. During all relevant times, Petitioner has

timely paid the full amount of her health insurance

premium in order to maintain the high-quality

coverage offered by the Plan. Petitioner successfully

appealed those determinations through 2010;

however, in 2011, Respondents refused to correct its

erroneous payer status determination and denied

Petitioners’ claims for health benefits. In connection

with Respondents’ denials in 2010 and 2011,

Petitioner requested copies of certain Plan documents

in order to assist her in appealing the denials.

Respondents repeatedly failed to timely provide

i

Petitioner with copies of the Plan documents she

requested.

The questions presented are:

1)

Did the Court of Appeals err in affirming

the District Court’s dismissal of Petitioner’s claims

based on alleged violations of subsection (b) of the

Medicare as Secondary Payer Act when the dismissal

was not based on the unambiguous statutory

definition of “current employment status” provided by

Congress in that subsection and instead was based

upon a regulatory definition for that same term, see

Chevron, U.S.A., Inc. v. Natural Res. Def. Council,

Inc., 467 U.S. 837 (1984); when Petitioner’s Complaint

established Petitioner’s status as a current employee

and union member; and when Petitioner’s Complaint

alleged Medicare had already determined its payer

status was secondary to Petitioner’s employersponsored health benefits claims?

2)

Did the Court of Appeals err in affirming

the dismissal of Petitioner’s claim alleging a violation

of the Employee Retirement Income Security Act of

1974 for unreasonable denial of benefits when the

terms of Petitioner’s employer-sponsored health

benefit plan forming the basis for Respondents’ denial

of Petitioner’s employer-sponsored health benefit

claims pertaining to Medicare payment priority alter

the express and unambiguous definition of “current

employment status” set forth by Congress in the

Medicare as Secondary Payer Act; when precedent

from the Courts of Appeals for the D.C. and the Sixth

Circuits indicates that plan provisions violating

federal statutes, including the Medicare as Secondary

ii

Payer Act, are void for violating federal law and denial

of benefits claims; when Medicare previously

determined its payer status was secondary to

Petitioner’s employer-sponsored health benefits; and

when an independent third-party reviewer selected

and paid by Respondents determined Respondents’

payment priority was primary to Medicare?

3)

Did the Court of Appeals err in affirming

the District Court’s grant of summary judgment

against Petitioner on her claim for failure to timely

provide plan documents, as required by ERISA, when

Respondent US Airways, Inc. did not timely provide

Petitioner with the documents she requested on

multiple occasions, as required by ERISA; when the

District Court’s grant of summary judgment was

based on clear errors of law; and when the evidence in

the record before the District Court supported the

assessment of a monetary penalty against US

Airways, Inc.?

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................ i

TABLE OF CONTENTS ............................................ iv

TABLE OF AUTHORITIES .................................... viii

PETITION FOR WRIT OF CERTIORARI ................ 1

OPINIONS BELOW ................................................... 1

JURISDICTION.......................................................... 2

STATUTORY PROVISIONS INVOLVED ................. 2

STATEMENT OF THE CASE .................................... 2

A. Factual Background ...................................... 3

B. Procedural History......................................... 8

I.

The lower court erred by affirming the dismissal

of Petitioner’s claims for violation of the MSP statute

and for unreasonable denial of health insurance

benefits in violation of ERISA pursuant to rule

12(b)(6), Fed.R.Civ.P. ................................................ 11

a. The District Court improperly disregarded

the MSP statute’s definition of “current

employment status” in finding the Complaint did

not state a claim under the MSP statute. ......... 13

iv

b. The District Court erred in finding the

relevant provisions of the Plan do not violate the

MSP statute. ....................................................... 16

II.

The District Court erred by granting summary

judgment against Petitioner on her claim for failure to

timely provide plan documents because, taken in the

light most favorable to Petitioner, a reasonable jury

could conclude US Air did not timely provide Plaintiff

with the plan documents she requested on September

30 and December 13, 2011........................................ 21

a. US Air was required to timely provide

Petitioner with a copy of the 1993 SPD, the 2008

SPD, and all “other instruments under which the

[P]lan [was] established or operated” in response

to Petitioner’s September 30 and December 13,

2011 written requests, which it did not do........ 24

b. ERISA does not relieve a plan administrator

of its duty to provide plan documents within 30

days of receiving a written request for plan

documents if the plan administrator previously

provided said documents.................................... 26

c. The District Court erred in declining to

assess a monetary penalty against US Air for

failure to timely provide Petitioner with the plan

documents she requested from US Air on

numerous occasions. ........................................... 27

v

III. This case presents a recurring question of

exceptional importance warranting the Court’s

immediate resolution. ............................................... 33

CONCLUSION.......................................................... 34

APPENDIX

APPENDIX A……………………………………………1a

i.) Feb. 26, 2018, Order denying Petition for

Rehearing, Fourth Circuit Court of

Appeals…………………………………...1a

APPENDIX B……………………………………………2a

ii.) Jan. 19, 2018, Unpublished Opinion,

Fourth Circuit Court of Appeals.....….2a

APPENDIX C……………………………………………4a

iii.) Mar. 31, 2017, Opinion and Order

granting Motion for Summary

Judgment………………………………...4a

APPENDIX D………………………………………….33a

iv.) Aug. 10, 2016, Order and Opinion denying

Motion for Reconsideration re Order on

Motion to Dismiss for Failure to State a

Claim…………………………………….33a

APPENDIX E…………………………………………..43a

v.) Sept. 30, 2015, Order granting in part and

denying in part Motion to Dismiss for

Failure to State a Claim……………...43a

vi

APPENDIX F…………………………………………..75a

Federal Statutes and Regulatory

Materials………………………………………..75a

Federal Statutes………………………75a

28 U.S.C. § 1291……………….75a

28 U.S.C. § 1331……………….75a

29 U.S.C. § 1024……………….75a

29 U.S.C. § 1132……………….76a

29 U.S.C. § 1133……………….78a

29 U.S.C. § 1395y……………...79a

Omnibus Budget Reconciliation Act of

1989, 103 Stat. 2229, 2230 (Dec.

19, 1989) (Amendments to

Medicare as Secondary Payer

Act)………………………………...84a

Amendments to Medicare as Secondary

Payer Act, 107 Stat. 593, 595 (Aug.

10, 1993)…………….…………….84a

Federal Regulatory Authority and

Materials………………………………………..85a

29 C.F.R. § 2575.502c-1………………85a

42 C.F.R. § 411.104……………………85a

60 Fed. Reg. 45344-01, 45346 (Aug. 31,

1995)………………………………87a

vii

TABLE OF AUTHORITIES

Federal Case Law

Bailey v. United States, 516 U.S. 137 (1995) ......... 14

Carroll v. Continental Auto., Inc., 685 Fed.Appx. 272

(4th Cir. 2017) ........................................................... 29

Chevron, U.S.A., Inc. v. Natural Res. Def. Council,

Inc., 467 U.S. 837 (1984) ...................................... 1, 15

Consumer Product Safety Comm'n v. GTE Sylvania,

Inc., 447 U.S. 102 (1980) .......................................... 14

Curry v. Contract Fabricators Inc. Profit Sharing

Plan, 891 F.2d 842 (11th Cir. 1990) ........................ 29

Davis v. Featherstone, 97 F.3d 734

(4th Cir. 1998) .............................................. 28, 29, 30

Dickerson v. New Banner Institute, Inc., 460 U.S.

103 (1983) ................................................................. 14

Faircloth v. Lundy Packing Co., 91 F.3d 648 (4th Cir.

1996) .................................................................. 30, 32

Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101

(1989) .................................................................. 23, 28

Fox v. Vice, 563 U.S. 826 (2011) .............................. 30

Hartman v. Dana Holding Corp., 978 F.Supp.2d 957

(N.D. Ind. 2013) ..................................... 23, 24, 25, 26

Health Ins. Ass’n of Am., Inc. v. Shalala, 23 F.3d 412

(D.C. Cir. 1994) ........................................................ 13

Izzo v. ING Life Ins. and Annuity Co., 235 F.R.D. 177

(E.D.N.Y. 2005) .................................................. 23, 24

Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d

562 (4th Cir. 2015) ................................................... 15

Lawson v. Suwannee Fruit & S.S. Co., 69 S.Ct. 503

(1949) ........................................................................ 15

viii

Libertarian Party of Va. v. Judd, 718 F.3d 308

(4th Cir. 2013) .......................................................... 21

McDonald v. Pension Plan of the Nysa-Ila Pension

Trust Fund, 320 F.3d 151 (2d Cir. 2003) ................ 29

Mercantile Peninsula Bank v. French (In re French),

499 F.3d 345 (4th Cir.2007) ..................................... 22

New York Life Ins. Co. v. United States, 190 F.3d

1372 (Fed. Cir. 1999) ............................................... 12

Romero v. Smith Kline Beecham, 309 F.3d 113 (3d

Cir.2002) ................................................................... 29

Santana v. Deluxe Corp, 12 F. Supp. 2d 162 (D.

Mass. 1998) .............................................................. 12

Stenberg v. Carhart, 530 U.S. 914 (2000) ............... 15

United States v. Turkette, 452 U.S., 576 (1981) .... 14

Federal Statutes

28 U.S.C. § 1254 ......................................................... 2

28 U.S.C. § 1291 ......................................................... 2

28 U.S.C. § 1331 ......................................................... 2

29 U.S.C. § 1001 ......................................................... 2

29 U.S.C. § 1024 ................................. 2, 24, 25, 27, 31

29 U.S.C. § 1132 ........ 2, 3, 9, 20, 21, 22, 23, 24, 26, 27

29 U.S.C. § 1133 ..................................................... 2, 9

29 U.S.C. § 1395y ................................2, 12, 13, 15, 19

Amendments to Medicare as Secondary Payer Act,

103 Stat. 2229, 2230 (Dec. 19, 1989) .............. 2, 11, 19

Amendments to Medicare as Secondary Payer Act,

107 Stat. 593, 595 (Aug. 10, 1993) ....................... 2, 11

ix

Federal Regulatory Authority and Materials

29 C.F.R. § 2575.502c-1 ............................................. 2

42 C.F.R. § 411.104 ........................................ 2, 14, 16

60 Fed. Reg. 45344-01, 45346 (Aug. 31, 1995) .... 2, 11

x

PETITION FOR WRIT OF CERTIORARI

This case is an ideal vehicle for resolving the

deference federal courts give to administrative

definitions of terms for which Congress has provided

a statutory definition. Chevron deference in many

respects can provide a helpful and relevant

mechanism for courts to ascertain legislative intent;

however, where agency interpretations or regulations

limit the scope of unambiguous statutory provisions,

particularly statutory definitions crafted by Congress,

such deference is improper and impermissibly

infringes upon Congress’s lawmaking power.

OPINIONS BELOW

The unreported opinion of the Court of Appeals

is produced at App. 2a to 3a. 709 Fed. Appx. 188 (4th

Cir.2018). The Court of Appeals’ unreported order

denying Petitioner’s Petition for Rehearing is

produced at App. 1a.

The unreported order of the District Court

granting summary judgment against Petitioner is

produced at App. 4a to 32a. 2017 WL 1196805 (Mar.

31, 2017). The unreported order of the District Court

denying Petitioner’s Motion to Alter or Amend as to

the District Court’s order dismissing certain of

Petitioner’s causes of action is produced at App. 33a to

42a.

2016 WL 420899 (Aug. 10, 2016).

The

unreported order of the District Court denying

Petitioner’s Motion to Alter or Amend as to the

District Court’s order dismissing certain of

Petitioner’s causes of action is produced at App. 43a to

74a. 2015 WL 5783561 (Sept. 30, 2015).

1

JURISDICTION

The judgment of the District Court was entered

on March 31, 2017. A notice of appeal to the Fourth

Circuit Court of Appeals was filed on April 28, 2017,

and the case was docketed in the court of appeals on

May 2, 2017 (4th Cir., No. 17-1565). The Fourth

Circuit Court of Appeals issued its decision on

January 19, 2018. The Fourth Circuit Court of

Appeals denied a petition for rehearing on February

26, 2018. The jurisdiction of this Court is thereby

invoked under 28 U.S.C. 1254(1).

STATUTORY PROVISIONS INVOLVED

The text of the relevant sections of the

Employment Retirement Security Act of 1974 and the

Medicare as Secondary Payer Act is reproduced in the

Appendix, along with the relevant regulations. See 28

U.S.C. §§ 1291, 1331; 29 U.S.C. §§ 1001, 1024, 1132,

1133, 1395y(b); 103 Stat. 2229, 2230 (Dec. 19, 1989);

107 Stat. 593, 595 (Aug. 10, 1993); 29 C.F.R.

§ 2575.502c-1; 42 C.F.R. § 411.104; 60 Fed. Reg.

45344-01, 45346 (Aug. 31, 1995).

STATEMENT OF THE CASE

This case involves a dispute regarding US

Airways, Inc.’s (“US Air”) wrongful denial of

Petitioner Jennifer Perkins’ 2011 health benefits

claims, in violation of the Medicare Secondary Payer

Act (MSP statute), 42 U.S.C. § 1395y(b), and the

Employee Retirement Income Security Act of 1974

(ERISA), 29 U.S.C. § 1113(a)(1)(B) and (g). This case

also involves a dispute regarding US Air’s repeated

2

failures to timely provide requested plan documents,

in violation of ERISA. 29 U.S.C. § 1132(c)(1).

A. Factual Background

Petitioner has continuously been an employee

of US Air, a member of the Association of Flight

Attendants, AFL-CIO (“the Union”), and a participant

in the US Airways Health Benefit Plan (“the Plan”)

since 1992.

After being struck by lightning on the jetway

while working for US Air, Petitioner has suffered from

a variety of serious health problems. In 2001 her

condition worsened to the point that she became

physically unable to perform her duties—she has been

on an approved medical leave of absence since October

2001, and in February 2002, Petitioner began

receiving long-term disability (LTD) benefits from US

Air. Petitioner began receiving Medicare benefits in

September 2003. Notwithstanding the fact that

Petitioner receives Medicare benefits while on

approved medical leave, Petitioner is entitled to

continue receiving benefits, including retirement

benefits, health benefits, and seniority through US

Air as a result of her current employment status and

her status as a member of the union.

In 2010, Petitioner experienced an issue when

US Air improperly determined its payer status was

secondary to Medicare.

In connection with

Petitioner’s attempts to get US Air to reverse its 2010

determination, Petitioner wrote US Air requesting

certain summary plan descriptions (SPD) on October

18, 2010. On October 27, 2010, US Air provided

3

Petitioner with some, but not all, of the SPDs she

requested. After receiving the documents provided by

US Air in October 2010, Petitioner opened the

envelope, wrote down the name of four different

documents provided by US Air, put them back in the

envelope, and gave them to her former attorney when

she retained him in January 2011.

On November 4, 2010, Petitioner wrote US Air,

noting she still had not received all of the SPDs she

requested and identifying the SPDs she still needed.

Petitioner’s letter specifically noted US Air had

provided copies of the SPDs for the 1993 Health

Benefit Plan, 2001 LTD Benefit Plan, 2003 Health

Benefit Plan, and the 2004 LTD Benefit Plan. That

letter again requested Health Benefit Plan SPDs for

2000, 2001, and 2010, and LTD Benefit Plan SPDs for

2000, 2003, and 2010. US Air responded to

Petitioner’s letter on November 8, 2010, stating it had

provided Petitioner with the only SPDs that there

were.

On January 25, 2011, Petitioner’s former

attorney wrote US Air regarding its erroneous 2010

payer status determination and to obtain copies of the

plan documents Petitioner requested from US Air on

October 18 and November 4, 2010. On February 11,

2011, US Air responded to Petitioner’s former

attorney, citing the Plan and certain amendments

thereto, and the Plan’s 1993, 2003, and 2008 SPDs.

US Air’s letter to Petitioner’s former attorney

specifically cited to pages 120-122 of the 1993 SPD.

The letter purported to provide copies of certain

documents; however, copies of those documents were

not provided to Petitioner. Further, the letter claimed

4

US Air had sent Petitioner the Plan’s SPDs for 1993,

2003, and 2008, as well as the LTD Plan’s plan

document and its current SPD on October 25, 2010.

Petitioner’s

former

attorney

ceased

representing her in May 2011, after successfully

resolving Petitioner’s issue with US Air’s erroneous

2010 payer status determination. In April 2011,

Petitioner requested all of the documentation

pertaining to her file from her former counsel’s

paralegal.

Petitioner reviewed the documents

provided, “and the only thing [she] was given was the

1993 [SPD],” and it was only during this review that

Petitioner discovered the 1993 SPD was missing

pages 121 through 125—which were the key pages

addressing the primary versus secondary payer issue.

When Petitioner met with her former attorney in May

2011, she requested all of her documents and inquired

about the pages missing from the 1993 SPD; however,

after a diligent search, neither her former attorney

nor his paralegal were able to locate the missing pages

nor could they confirm they had ever received those

pages.

In July 2011, Petitioner began appealing US

Air’s denial of her 2011 health benefit claims after US

Air, once again, erroneously determined its payer

status was secondary to Medicare, resulting in

Petitioner’s 2011 health benefit claims, which total

$10,848.00, being unpaid. Petitioner timely appealed

US Air’s denials. However, despite an external

reviewer—a benefit specialist and health plan

manager who was selected and paid by US Air—

determining US Air was required to cover Petitioner’s

claims as primary payer under the Plan, and despite

5

Medicare denying being primary for Petitioner’s 2011

claims, US Air continued to deny Petitioner’s claims

for benefits. In 2011 alone, Petitioner paid 100% of

her monthly insurance premiums, totaling $7,757.52,

for the privilege of participating in the Plan so that

she would have high-quality insurance coverage.

It was during the time that Petitioner was

pursuing her appeal of US Air’s denial of her 2011

health benefit claims that, on September 30, 2011,

Petitioner sent US Air a written request for “all the

documents required under ERISA, including all

records and supporting information that was in your

possession at the time you made the decision to

unilaterally name yourself the secondary pay[e]r of

my medical benefits for 2011.”1

Petitioner’s

September 30, 2011 request specifically requested

copies of “the relevant Summary Plan D[e]scriptions,

all relevant amendments to Summary Plan

D[e]scriptions, . . . and other documents relied upon

by BCBSNC, U.S. Airways, Inc., and any other claims

fiduciaries.” Petitioner closed her September 30, 2011

letter to US Air with this simple request, “If you could

please expedite my request it would be greatly

appreciated . . . .”

It was not until December 2, 2011, that US Air

responded to Petitioner’s September 30, 2011 letter,

acknowledging Petitioner’s September 30, 2011

document request and her question regarding the

issues with the payer status for her 2011 medical

benefits. Nevertheless, US Air’s letter stated “we

1 Petitioner’s September 30, 2011 letter to US Air was delivered

to US Air on October 4, 2011.

6

have already provided all relevant plan documents,

summary plan descriptions and collective bargaining

agreements that govern the terms of your medical

coverage,” referring her to its February 2011 letter.

(emphasis added). US Air’s letter did not specify

which of the “relevant” documents “govern[ing] the

terms of [her] medical coverage” it had previously

provided nor did it enclose any of the materials

Petitioner requested with its December 2, 2011 letter.

On December 13, 2011, Petitioner sent US Air

a letter to follow up on her unfulfilled September 30,

2011 request for plan documents.

Petitioner

acknowledged US Air’s explanation that it had

previously sent certain documents to her former

attorney; however, Petitioner reiterated her request

for plan documents, noting it was her right under

ERISA to request those documents. Additionally,

Petitioner’s letter specifically requested “[a]ll

Summary Plan D[e]scriptions in FULL (my copy and

Attorney Adams’ copy of the 1993 Health Benefit Plan

were missing pages 121 thru 125), all relevant

amendments to the Summary Plan D[e]scriptions,

and all collective bargaining agreements.” Petitioner

wanted the plan documents to provide her new

attorney with “anything pertaining to ERISA,

anything that an attorney would need to go over my

case.” This was because Petitioner “did not know

exactly what all was needed”—so she requested “the

entire administrative record,” including the plan

documents referenced in her September and

December 2011 letters to US Air. Petitioner’s letter

reminded US Air that ERISA required it to provide

her with the requested materials within 30 days after

7

such request. US Air never responded to Petitioner’s

December 13, 2011 letter.

After Petitioner’s efforts to resolve the issues

regarding US Air’s 2011 payer status determination

and obtain copies of the plan documents relevant to

US Air’s 2011 determination proved unfruitful,

Petitioner engaged a new attorney to assist her with

resolving those issues.

On January 25, 2012,

Petitioner’s new counsel wrote to US Air, highlighting

US Air’s failure to provide Petitioner with the plan

documents requested on September 30 and December

13, 2011.

Petitioner’s new counsel reiterated

Petitioner’s request for plan documents, asking US

Air to provide them, including the document that was

missing pages 121 through 125 that Petitioner wrote

about in her December 13, 2011 letter, “without

further delay.”

On February 14, 2012, Petitioner’s new counsel

received US Air’s letter dated January 31, 2012,

acknowledging receipt of the January 25, 2012 letter

and enclosing copies of the 1993 and 2008 SPDs for

the Plan. US Air’s letter did not enclose any of the

other documents Petitioner requested from US Air in

her September 30 and December 13, 2011 letters.

B. Procedural History

On June 24, 2014, Petitioner brought an action

against US Air and the Plan in the District Court

alleging four causes of action: unreasonable denial of

health insurance benefits, improper claims procedure,

failure to timely provide plan documents, and

violation of the MSP statute. The District Court

8

denied Defendants–Respondents’ motion to dismiss

Petitioner’s ERISA claim for failure to timely provide

plan documents, but granted the motions to dismiss

Petitioner’s remaining claims for failure to state a

claim. (App.43a-74a.) As to Petitioner’s claim for

unreasonable denial of health benefits, the District

Court found the terms of the Plan provided that

Medicare was the primary payer on Petitioner’s

claims. (App.43a-74a.) As to Petitioner’s second cause

of action for improper claims procedure, the District

Court found the Complaint’s factual allegations were

not sufficiently specific to show how US Air violated

the procedural requirements of 29 U.S.C. § 1133.

(App.43a-74a.) Finally, the District Court found

Petitioner did not state a claim for violation of the

MSP statute because under the terms of the Plan,

Medicare, and not the Plan, was the primary payer for

Petitioner’s claims. (App.43a-74a.)

Petitioner moved for the District Court to

reconsider its order dismissing her claims, asserting

the District Court’s decision in dismissing her claims

was based on clear errors of law and amendment was

necessary to prevent manifest injustice. The District

Court denied Petitioner’s motion. (App.33a-42a.)

Later, the District Court granted summary

judgment in favor of US Air on Petitioner’s only

remaining claim against US Air for failure to timely

provide plan documents. (App.4a-32a.) In granting

summary judgment against Petitioner on her claim

pursuant to 29 U.S.C. §1132(c)(1), the District Court

found there was no genuine issue of material fact

regarding the completeness of the 1993 SPD that

Petitioner received in October 2010 because Petitioner

9

did not sufficiently rebut US Air’s contention that the

1993 SPD mailed to Petitioner in October 2010 was

not missing pages 121 through 125 when she first

received the document. (App.4a-32a.) As to the 2008

SPD, the District Court found that there was no

genuine issue of material fact regarding when US Air

provided the document to Petitioner as US Air

provided evidence showing it timely provided the

document to Petitioner because, regardless of whether

it was provided to Petitioner in October 2010, US Air

provided a copy of the 2008 SPD to Petitioner’s former

attorney in February 2011. (App.4a-32a.) As to

Petitioner’s separate requests for plan documents

from September 30 and December 13, 2011, the

District Court found there was no genuine issue of

material fact because, regardless of whether US Air

was required to provide Plaintiff with historical copies

of plan documents (i.e. the 1993 SPD), ERISA did not

require US Air to provide Petitioner with copies of

plan documents it had already provided in response to

Petitioner’s October 2010 request for plan documents.

(App.4a-32a.) Finally, the District Court found that

even if US Air violated ERISA by failing to timely

provide Petitioner with plan documents, no penalty

against US Air was warranted because Petitioner was

not prejudice prejudiced by such violations. (App.4a32a.)

Petitioner appealed the District Court’s ruling

to the Fourth Circuit Court of Appeals on April 28,

2017. The court of appeals dispensed with oral

argument and affirmed the district court’s ruling “for

the reasons stated by the district court.” (App.2a-3a.)

Thereafter, Petitioner sought rehearing from the

10

Court of Appeals, which the Court of Appeals denied.

(App. 1a.)

As soon as the Fourth Circuit denied

Petitioner’s appeal, US Air began attempting to

terminate Petitioner’s health insurance even though

she is still US Air’s employee, still a member of the

Union, and still pays the full amount of her premium

each month with no subsidy from US Air.

Petitioner now seeks a writ of certiorari from

this Court on the three important questions presented

in this case.

REASONS FOR GRANTING CERTIORARI

I.

The lower court erred by affirming the

dismissal of Petitioner’s claims for violation of

the MSP statute and for unreasonable denial of

health insurance benefits in violation of ERISA

pursuant to rule 12(b)(6), Fed.R.Civ.P.

The MSP statute, which Congress has amended

various times,2 prohibits a large group health plan

(LGHP) from considering a disabled individual’s

entitlement to Medicare benefits based on disability

when the LGHP covers that individual because of

2 Prior versions of the MSP statute’s prohibition only applied to

“disabled active individuals.” (103 Stat. 2229, 2230 (Dec. 19,

1989, P.L. 101-239, Title VI, Subtitle A, Part 1, Subpart A, § 6202

(b)(1))); however, in 1993, Congress eliminated the concept of

“active individual” from the MSP statute. 107 Stat. 593, 595

(Aug. 10, 1993, P.L. 103-66, Title XII, Ch. 2, Subch A, Part III,

§§ 13561(e)(1)(E)–(F)); see also 60 Fed. Reg. 45344-01, 45346

(Aug. 31, 1995).

11

their “current employment status with an employer.”

42 U.S.C. § 1395y(b)(1)(B)(i).

The MSP statute

provides its own definition for the term “current

employment status,” which Congress instructed is to

be used for purposes subsection (b) of the MSP

statute.3 As used in subsection (b), “[a]n individual

has ‘current employment status’ with an employer if

the individual is an employee, is the employer, or is

associated with the employer in a business

relationship.”

42 U.S.C. §1395y(b)(1)(E)(ii).

“Congress intended that the term ‘current

employment status’ be given the broadest application

possible.” Santana v. Deluxe Corp, 12 F. Supp. 2d 162,

172 (D. Mass. 1998) (finding the MSP statute did not

apply to former employees because former employees

do not have current employment status).

To state a claim for violation of the MSP

statute, a plaintiff must plead sufficient factual

matter, accepted as true, to show a primary plan failed

to provide for primary payment in accordance with 42

U.S.C. §1395y(b)(3)(A). A large group health plan

(LGHP) that insists Medicare pay for claims as

primary payer when an individual has coverage under

the LGHP because of their “current employment

In creating the concept of “current employment status” for

subsection (b) of the MSP statute, Congress sought to prevent

private plans from shifting costs to the public fisc and to

ameliorate the problems of escalating healthcare costs and

private plans providing inferior benefits or coverage for medical

treatment that is also covered by Medicare. Bio-Med.

3

Applications of Tenn., Inc. v. Cent. States Se. & Sw. Areas Health

& Welfare Fund, (hereinafter, “Bio-Med”), 656 F.3d 277, 282 (6th

Cir.2011) (citing Fanning v. United States, 346 F.3d 386, 388 (3d

Cir.2003)); New York Life Ins. Co. v. United States, 190 F.3d

1372, 1373 (Fed. Cir.1999).

12

status” violates the MSP statute in the most selfserving manner. 42 U.S.C. § 1395y(b)(1)(B)(i). Under

the express language of the MSP statute, an

individual has “current employment status” if the

individual is “an employee… or is associated with the

employer in a business relationship.” 42 U.S.C.

§ 1395y(b)(1)(E)(ii).

When an LGHP’s provisions alter the payment

priority scheme set forth in the MSP statute, those

provisions are “void for violating federal law” because

they violate the MSP statute. Bio-Med., 656 F.3d at

283–84. In such a case, “[t]he effect of [the MSP

statute] is to nullify any plan provision that would

‘carve out’ expenses covered by Medicare and thus, in

effect, make the plan’s coverage secondary to

Medicare.” Health Ins. Ass’n of Am., Inc. v. Shalala,

23 F.3d 412, 418 (D.C. Cir. 1994). Under ERISA, the

denial of benefits based on void plan provisions is

unreasonable, an abuse of discretion, and in violation

of ERISA because adherence to those provisions

results in a violation of federal law (i.e. the MSP

statute). Id.

a.

The District Court improperly disregarded the

MSP

statute’s

definition

of

“current

employment status” in finding the Complaint

did not state a claim under the MSP statute.

In dismissing Petitioner’s claim under the MSP

statute, which also serves as the foundation for her

claim for unreasonable denial of benefits under

ERISA, the District Court did not reference or even

cite to the MSP statute’s definition of “current

employment status.” (App.43a-74a.) Instead, in

13

dismissing

Petitioner’s

claims

and

denying

Petitioner’s motion to reconsider, the District Court’s

relied on a narrower, more restrictive definition of the

term set forth in regulations in finding Petitioner

failed to state a claim under the MSP statute.

(App.43a-74a.) 42 C.F.R. § 411.104. Because the MSP

statute includes an explicit definition for “current

employment status,” which Congress expressly

provided for purposes of subsection (b) of the MSP

statute, the District Court committed a clear error of

law in disregarding that definition and concluding the

Complaint did not state a claim under the MSP

statute.

In construing the terms of a statute, courts

should read statutory terms, including any statutorily

provided definitions for such terms, according to their

plain meaning. See Bailey v. United States, 516 U.S.

137, 144–45 (1995); United States v. Missouri Pac.

R.R. Co., 278 U.S. 269, 278 (1929). When those terms

are clear and unambiguous, the court assigns them

their “ordinary and natural” meaning. Bailey, 516

U.S. at 145. So long as the statutory language is

reasonably definite, that language must be regarded

as conclusive—at least in the absence of an

unmistakable

Congressional

intent

to

the

contrary. Dickerson v. New Banner Institute,

Inc., 460 U.S. 103, 110 (1983); United States v.

Turkette, 452 U.S., 576, 580 (1981); Consumer

Product Safety Comm'n v. GTE Sylvania, Inc., 447

U.S. 102, 108 (1980). “When a statute includes an

explicit definition, [courts] must follow that

definition.” Stenberg v. Carhart, 530 U.S. 914, 942

(2000). “Statutory definitions control the meaning of

statutory words.” Lawson v. Suwannee Fruit & S.S.

14

Co., 69 S.Ct. 503, 504 (1949). Courts need not to delve

into a complicated analysis when Congress “has

directly spoken to the precise question.” Jacobs v.

N.C. Admin. Office of the Courts, 780 F.3d 562, 573

(4th Cir. 2015) (citing Chevron, U.S.A., Inc. v. Natural

Res. Def. Council, Inc., 467 U.S. 837 (1984)).

Under section (b) of the MSP statute, “[a]n

individual has ‘current employment status’ with an

employer if the individual is an employee, is the

employer, or is associated with the employer in a

business relationship.” 42 U.S.C. §1395y(b)(1)(E)(ii)

(emphasis added). If any of these three statutory

criteria are satisfied, an individual has “current

employment status” under subsection (b) of the MSP

statute and an LGHP is prohibited from considering a

disabled individual’s entitlement to Medicare

benefits. 42 U.S.C. §1395y(b)(1)(B)(i).

It is undisputed that Petitioner is and has been

an employee of US Air since 1992 and that all relevant

times, Petitioner has been a member of the Union.

However, under a narrower, more restrictive

regulatory definition of “current employment status”

adopted after Congress amended the MSP statute—

the application of which would certainly run afoul of

Congress’s intent4 in amending subsection (b) of the

MSP statute to provide its own statutory definition of

“current employment status”— Petitioner would

technically not have current employment status as an

employee, even though she is a long-time employee of

US Air, because she has been receiving LTD benefits

through her employer for longer than 6 months. 42

4

See note 3 supra. (addressing congressional intent.)

15

C.F.R. § 411.104. However, Medicare has consistently

denied being primary payer for Petitioner’s claims.

Accordingly, an application of the MSP statute’s

definition of “current employment status” to the

allegations in the Complaint yields but one

conclusion—the Complaint states a claim for violation

of subsection (b) of the MSP statute because it alleges

that Petitioner is an employee of US Air and a

member of the Union that has been covered under the

Plan by virtue of her current employment status and

US Air made its 2011 payment priority determination

based on Petitioner’s entitlement to Medicare

benefits. Thus, the District Court erred in finding the

Complaint did not state a claim under subsection (b)

of the MSP statute.

b.

The District Court erred in finding the relevant

provisions of the Plan do not violate the MSP

statute.

The District Court’s determination that the

Complaint did not state a claim for unreasonable

denial of benefits relied on the language of the Plan’s

“Disability” provision in concluding the Plan was not

the primary payer for Petitioner’s 2011 health care

claims.5 However, the “Disability” provision of the

Plan relied on by the District Court violates

subsection (b) of the MSP statute because it illegally

restricts the payment priority set forth in the MSP

5 Petitioner’s Complaint referenced the Plan’s 2011 Summary of

Material Modifications, but did not reference the “Disability”

provision of the Plan. However, as addressed herein, because the

terms of the “Disability” provision violate subsection (b) of the

MSP statute, they are void for violating federal law. Under the

remaining terms of the Plan, Medicare is secondary payer.

16

statute by distinguishing between classes of

employees when Congress’s definition provides for no

such distinction and because the Plan’s provisions

improperly dictate when the Plan will pay as primary.

The Plan also does not take into account an

individual’s status as a Union member.

Section 4.5 of the 1992 iteration of the Plan

addresses the Plan’s coordination with Medicare

regarding payment priority. Section 4.5 explains that,

except were an employee is still “active . . . [w]hen a

Participant is eligible for Medicare . . . this Plan will

pay benefits only after Medicare has paid its benefits;

provided, however, that the Plan will only pay benefits

before or after Medicare has paid benefits, as

applicable, if the Participant has enrolled for

Medicare Parts A and B.” Section 3.1 of the Plan

states, “An ‘inactive’ Employee is an Employee who is

on leave from employment with his Employer.” The

Plan’s 2003 Amendment to Section 4.5 also provides

the same payment priority, with immaterial

alterations.

The Plan’s 2011 Summary of Material

Modifications (2011 SMM), portions of which

Petitioner cited in her Complaint, provides:

Coordination With Medicare for Disabled

Individuals (SPD, Page 36)

****

If you . . . are enrolled in Medicare while

you are actively employed, participation

in this Plan will continue as long as you

are an active employee and remain

enrolled. This Plan will be the primary

17

carrier and Medicare

secondary carrier.

will

be

the

If you are on a leave of absence or you are

receiving disability benefits, please note

the following important rules regarding

coverage under Medicare:

Leave of Absence: If you take a leave of

absence and retain coverage under the

Plan, the Plan will continue to pay

primary for as long as you retain your

right to return to active employment, i.e.,

your employment is not terminated by

the company. If your employment is

terminated by the company, Medicare

will become primary.

Disability: If you take a medical leave of

absence, retain coverage under the Plan,

and start receiving disability benefits

from the company, the Plan will continue

to pay primary for the first 6 months of

your disability coverage, i.e., while

disability benefits are subject to FICA

tax. After this 6 month period, Medicare

will become primary for you and/or any

covered dependents.

When Medicare becomes primary, the

Plan assumes you are enrolled in both

Medicare Part A and B, so review your

options when you become eligible for

Medicare (either due to age or disability).

18

Although inapplicable to Petitioner’s 2011 benefit

claims, the 2013 iteration of the Plan incorporates the

“Disability” provision from the 2011 SMM in all

relevant respects.

In its 1993 amendments to subsection (b) of the

MSP statute, Congress eliminated the concept of an

“active individual.”6 103 Stat. 2230. Since 1993,

subsection (b) of the MSP statute has prohibited

LGHPs from considering an individual’s entitlement

to Medicare benefits based on “current employment

status,” which subsection (b) of the MSP statute has

expressly defined since 1993.

42 U.S.C.

§1395y(b)(1)(E)(ii). Notwithstanding these important

amendments to the MSP statute, US Air violated the

MSP statute by basing its 2011 payment priority

determination on Plan provisions incorporating

restrictive concepts that Congress expressly removed

from the MSP statute over twenty years ago. Those

antiquated and illegally restrictive plan provisions

are “void for violating federal law” because they

violate the MSP statute. Bio-Med., 656 F.3d at 283–

84; Shalala, 23 F.3d at 414. Moreover, US Air’s 2011

payment priority decision denying Petitioner’s health

benefits claims based on the void “disability” provision

6 The prior version of the MSP statute did not include the concept

of “current employment status,” and instead used the noweliminated concept of “active individual,” which the prior version

of the MSP statute defined, in relevant part, as “an employee (as

may be defined in regulations) . . . .” 103 Stat. 2230. The MSP

statute no longer references definitions set forth in the

regulations, and instead, it contains its own definitions or it

specifically references definitions set forth elsewhere in the U.S.

Code.

19

is unreasonable and an abuse of discretion because

adherence to that provision results in a violation of

federal law—subsection (b) of the MSP statute. Id.

Construed in a light most favorable to

Petitioner, the Complaint alleges sufficient factual

matter to plausibly state a claim for relief under

ERISA, 29 U.S.C. § 1132(a)(1)(B), for unreasonable

denial of benefits.

The Complaint alleges that US Air

unreasonably denied Petitioner benefits under the

Plan in violation of ERISA, 29 U.S.C. § 1132(a)(1(B).

More particularly, the Complaint alleges that

Petitioner, a long-time employee of US Air Union

member, has been a continuously enrolled participant

in the Plan at all times relevant to her claim for health

benefits. It further alleges Petitioner began receiving

Medicare benefits in 2003, but asserts that the Plan

should be primary and Medicare should be secondary.

Further factual basis for Petitioner’s claim is

grounded upon: the terms of the Plan (which violate

subsection (b) of the MSP statute); her allegation that

US Air unilaterally ceased paying as primary in 2011,

insisting that Medicare was primary, even despite the

determination by the external reviewer that US Air

was required to pay as primary; the fact that Medicare

denied being primary in 2011; and her allegation that

before 2011, US Air had tried to deny responsibility as

primary payer, which Petitioner contends has been

US Air’s pattern and practice in dealing with her

claims for benefits under the Plan.

Accordingly, the District Court erred in

dismissing Petitioner’s claim for unreasonable denial

20

of benefits in violation of 29 U.S.C. § 1132(a)(1)(B)

because the Complaint’s factual allegations, taken in

the light most favorable to Petitioner, set forth a

plausible claim for relief.

II.

The District Court erred by granting summary

judgment against Petitioner on her claim for

failure to timely provide plan documents

because, taken in the light most favorable to

Petitioner, a reasonable jury could conclude US

Air did not timely provide Plaintiff with the

plan documents she requested on September 30

and December 13, 2011.

This Court should hold that the District Court

erred in granting summary judgment against

Petitioner on her claim for failure to timely provide

plan documents because ERISA required US Air, as

plan administrator, to provide Petitioner with the

documents she requested in writing on September 30

and December 13, 2011, within thirty days of her

requests, which US Air undisputedly did not do.

A district court “shall grant summary judgment

if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed.R.Civ.P. 56(a). “A

dispute is genuine if ‘a reasonable jury could return a

verdict for the nonmoving party.’” Libertarian Party

of Va. v. Judd, 718 F.3d 308, 313 (4th Cir.2013)

(quoting Dulaney v. Packaging Corp. of Am., 673 F.3d

323, 330 (4th Cir.2012)). “A fact is material if it ‘might

affect the outcome of the suit under the governing

law.’” Id. (quoting Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986)).

21

In considering a motion for summary judgment,

the district court must “view the evidence ‘in the light

most favorable to the’” nonmoving party. Tolan v.

Cotton, 134 S.Ct. 1861, 1866 (2014) (quoting Adickes

v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)).

“Summary judgment cannot be granted merely

because the court believes that the movant will

prevail if the action is tried on the merits.” 10A

Charles Alan Wright & Arthur R. Miller et

al., Federal Practice & Procedure § 2728 (3d

ed.1998). The court therefore cannot weigh the

evidence or make credibility determinations. Tolan,

134 S. Ct. at 1866-67; Mercantile Peninsula Bank v.

French (In re French), 499 F.3d 345, 352 (4th

Cir.2007) (citing Anderson, 477 U.S. at 255); see

also Fed.R.Civ.P. 56 Advisory Committee's Note

(1963) (“Where an issue as to a material fact cannot

be resolved without observation of the demeanor of

witnesses in order to evaluate their credibility,

summary judgment is not appropriate.”).

29 U.S.C. § 1132(c)(1) provides, in relevant

part:

Any administrator . . . (B) who fails or

refuses to comply with a request for any

information which such administrator is

required by this subchapter to furnish to

a participant or beneficiary . . . by

mailing the material requested to the

last known address of the requesting

participant or beneficiary within 30 days

after such request may in the court’s

discretion be personally liable to such

22

participant or beneficiary in the amount

of up to [$110] a day from the date of

such failure or refusal, and the court may

in its discretion order such other relief as

it deems proper. For purposes of this

paragraph, . . . each violation described

in subparagraph B with respect to any

single participant or beneficiary, shall be

treated as a separate violation.

29 U.S.C. § 1132(c)(1).7

ERISA

contains

stringent

disclosure

requirements, which help to ensure an individual

participant “knows exactly where [s]he stands with

respect to the plan,” Firestone Tire & Rubber Co. v.

Bruch, 489 U.S. 101, 118 (1989), “which includes

having the information necessary to determine her

eligibility and understand her rights under the plan

and to ascertain the procedures she must follow to

obtain benefits.” Hartman v. Dana Holding Corp., 978

F.Supp.2d 957, 968-69 (N.D. Ind. 2013) (citing Mondry

v. Am. Family Mut. Ins., 557 F.3d 781, 793 (7th Cir.

2009)); see also Izzo v. ING Life Ins. and Annuity Co.,

235 F.R.D. 177, 187 (E.D.N.Y. 2005) (quoting

Firestone, 489 U.S. at 118).

These disclosure

provisions, require a plan administrator to, “upon

written request of any participant or beneficiary,

furnish a copy of the latest updated summary[] plan

description, and the latest annual report, any

terminal report, the bargaining agreement, trust

agreement, contract, or other instruments under

7 29 C.F.R. § 2575.502c-1 (increasing the per diem penalty from

$100 to $110).

23

which the plan is established or operated.” 29 U.S.C.

§ 1024(b)(4). Courts have interpreted this section as

requiring the plan administrator to “furnish copies of

the actual plan documents (including amendments)

under which the plan is operated.” Izzo, 235 F.R.D. at

178 (quoting McFaul v. Lowes Corp., 1993 WL 541778,

at *2 (S.D.N.Y. Dec. 30, 1993)).

a.

US Air was required to timely provide

Petitioner with a copy of the 1993 SPD, the

2008 SPD, and all “other instruments under

which the [P]lan [was] established or operated”

in response to Petitioner’s September 30 and

December 13, 2011 written requests, which it

did not do.

In addition to ERISA’s requirement that plan

administrators “furnish a copy of the latest updated

summary[] plan description” within 30 days of a

participant’s written request, 29 U.S.C. §§ 1024(b)(4),

1132(c)(1), the plan administrator must also furnish

“the latest annual report, any terminal report, the

bargaining agreement, trust agreement, contract, or

other instruments under which the plan is established

or operated,” 29 U.S.C. § 1024(b)(4), and the plan

administrator must provide historical documents to

plan participants if they contain information that will

allow the participant to understand and assert her

rights under the plan. Hartman v. Dana Holding

Corp., 978 F.Supp.2d 957, 968 (N.D. Ind. 2013) (citing

Hakim v. Accenture U.S. Pension Plan, 656 F.Supp.2d

801, 824 (N.D. Ill. 2009) and Mondry v. Am. Family

Mut. Ins., 557 F.3d 781, 800 (7th Cir.2009)). When

historical plan documents control a participant’s

claim for benefits, those historical documents are

24

undoubtedly an instrument under which the plan was

established or operated and are therefore subject to §

1024(b)(4)’s disclosure obligation. Hartman v. Dana

Holding Corp., 978 F.Supp.2d 957, 968 (N.D. Ind.

2013) (citing Huss v. IBM Med. & Dental Plan, 418

Fed.Appx. 498, 509 (7th Cir. 2011) and Bilello v.

JPMorgan Chase Ret. Plan, 649 F.Supp.2d 142, 170

(S.D.N.Y. 2009)).

On September 30, 2011, Petitioner submitted a

written request for copies of various plan documents.

This written request specifically asked US Air for

copies of “the relevant [SPDs]” and other plan

documents required to be provided pursuant to

ERISA, such as “all relevant amendments.” Almost

sixty days later, US Air sent Petitioner a letter stating

it had “already provided all relevant plan documents,

summary plan descriptions and collective bargaining

agreements that govern the terms of your medical

coverage,” referencing its February 2011 letter to

Petitioner’s former counsel.8 In a separate written

request dated December 13, 2011, Petitioner

reiterated her unfulfilled September 30, 2011 request

and again requested that US Air provide her with “all

relevant plan documents” that US Air had at the time

it decided to name itself as secondary payer of her

2011 medical benefits. Petitioner’s December 13, 2011

request also noted that her copy of the 1993 SPD that

US Air had previously provided was missing pages

121 thru 125. US Air ignored that separate request.

The February 2011 letter to Petitioner’s former counsel

specifically referenced the SPDs for 1993 and 2008, certain

amendments to the Plan, and the collective bargaining

agreement in addressing its basis for US Air’s 2010 payer status

determination.

8

25

The evidence in the record shows that the 1993

SPD was a “relevant,” moreover, key document

because it contained information that would have

helped Petitioner to understand her rights under the

Plan. See Hartman, 978 F.Supp.2d at 968. In fact,

US Air’s February 2011 letter to Petitioner

specifically referenced the 1993 SPD in providing US

Air’s basis for its 2010 payer status determination,

which is highly indicative of the relevance of that

document in evaluating Petitioner’s issues with US

Air’s 2011 payer status determination. Accordingly,

US Air was required to timely provide Petitioner with

a copy of the 1993 SPD upon receiving Petitioner’s

written requests for plan documents, which the

evidence in the record shows US Air did not do until

February 2012, when it provided copies of the 1993

and 2008 SPDs, but none of the other documents

Petitioner had requested in September and December

2011, in response to Petitioner’s new attorney’s

January 25, 2012 written request. Thus, the evidence

in the record shows that US Air violated § 1132(c)(1)

when it failed and refused to comply with Petitioner’s

requests for plan documents within 30 days of her

such written requests.

b.

ERISA does not relieve a plan administrator of

its duty to provide plan documents within 30

days of receiving a written request for plan

documents if the plan administrator previously

provided said documents.

The District Court’s conclusion that ERISA

does not require plan administrators to provide

participants with copies of plan documents if the

26

administrator has previously provided a copy of such

documents is based on a flawed construction of 29

U.S.C. § 1132(c)(1). Simply put, § 1132(c)(1) does not

provide for such a one-and-done approach. Dogs eat

homework, catastrophes strike, and sometimes

documents get misplaced—the statute accommodates

for these contingencies and does not prohibit

participants or beneficiaries from submitting multiple

requests for plan documents. 29 U.S.C. §§ 1024(b)(4),

1132(c)(1). Moreover, the statute specifically takes

into account the costs of providing plan documents, so

it allows plan administrators to make a reasonable

charge to cover the cost of furnishing such documents.

29 U.S.C. § 1024(b)(4). In fact, section 1132(c)(1)

specifically indicates that “each violation . . . with

respect to any single participant or beneficiary[] shall

be treated as a separate violation.” Thus, where

multiple requests for plan documents go unfulfilled,

as in this case, the statute treats each of those

requests as separate violations, each of which is

subject to the daily penalties provided for by section

1132(c)(1). Accordingly, because the evidence in the

record shows that US Air failed and refused to timely

provide Petitioner’s written requests for plan

documents, the District Court erred in granting

summary judgment against Petitioner on this claim.

c.

The District Court erred in declining to assess

a monetary penalty against US Air for failure

to timely provide Petitioner with the plan

documents she requested from US Air on

numerous occasions.

The District Court abused its discretion when it

found that, even if there was a genuine issue of

27

material fact as to whether US Air violated 29 U.S.C.

§ 1132(c)(1), no monetary penalty should be assessed

against US Air. (App.4a-22a.) The District Court’s

finding is based on an error of law—that prejudice or

bad faith are required before a penalty is warranted

for violations of § 1132(c)(1). This finding is also based

on the Court’s erroneous interpretation of the facts

pertaining to Petitioner’s request for plan documents.

A plan administrator “may in the court’s

discretion be personally liable to [a] participant . . . in

the amount of up to [$110] a day from the date of such

failure or refusal, and the court may in its discretion

order such other relief as it deems proper. . . . [E]ach

violation . . . with respect to any single participant . .

. shall be treated as a separate violation.” 29 U.S.C.

§ 1132(c)(1). When there is some doubt about whether

a someone is entitled to plan documents under

§1132(c)(1), “the Supreme Court has suggested that

an administrator should err on the side of caution:

‘Faced with the possibility of . . . [monetary] penalties.

. . , a rational plan administrator . . . would likely opt

to provide . . . the information requested, . . especially

when the reasonable costs of producing the

information can be recovered.’” Davis v. Featherstone,

97 F.3d 734, 738 (4th Cir.1998) (quoting Firestone

Tire & Rubber Co. v. Bruch, 489 U.S. 101, 118 (1989)).

In determining whether to assess a penalty

against a plan administrator that violates §

1132(c)(1), “two factors generally guide a district

court's discretion: prejudice to the plaintiff and the

nature of the administrator's conduct in responding to

the participant's request for plan documents.

Although prejudice is a pertinent factor for the district

28

court to consider, it is not a prerequisite to imposing a

penalty.”9 Davis, 97 F.3d at 738 (emphasis added)

(citations to cases from the 11th and 7th Circuit

Courts of Appeals omitted); see also, Carroll v.

Continental Auto., Inc., 685 Fed.Appx. 272, 276-77

(4th Cir. 2017) (“Although findings of prejudice maybe

relevant to a penalty determination, courts analyzing

ERISA do not condition the imposition of penalties on

the existence of such findings.”). “[F]rustration,

trouble, and expense are relevant factors for a district

court to consider in deciding whether to impose a

penalty.” Id. at 738. It is proper for the district court

to consider whether a participant has had to go to the

trouble and expense of engaging an attorney to obtain

plan documents she has requested but not received.

Id. at 738-39. “The purpose of the penalty provision is

to provide plan administrators with an incentive to

meet requests for information in a timely fashion.” Id.

at 738.

The Fourth Circuit evaluates a district court’s

decision regarding imposition of monetary penalties

pursuant to 29 U.S.C. § 1132(c)(1) under the abuse-ofdiscretion standard of review. Faircloth v. Lundy

Packing Co., 91 F.3d 648, 659 (4th Cir.1996);

Other circuit courts have used five factors in determining

whether to assess penalties under § 1132(c)(1): “(1) bad faith or

intentional conduct of the plan administrator, (2) length of delay,

(3) number of requests made, (4) documents withheld, and (5)

prejudice to the participant.” Romero v. Smith Kline Beecham,

309 F.3d 113, 120 (3d Cir.2002); see also McDonald v. Pension

Plan of the Nysa-Ila Pension Trust Fund, 320 F.3d 151, 163 (2d

Cir.2003); Curry v. Contract Fabricators Inc. Profit Sharing

Plan, 891 F.2d 842, 847 (11th Cir. 1990) (citing five factors, but

noting they are not prerequisites for imposing penalties against

a plan administrator).

9

29

Highmark, Inc. v. Allcare Health Management

Systems, Inc, 134 S. Ct. 1744, 1748 (2014)

(“Traditionally, . . . decisions on ‘matters of discretion’

are ‘reviewable for abuse of discretion.’” (quoting

Pierce v. Underwood, 487 U.S. 552, 558 (1988))). “The

abuse-of-discretion standard does not preclude an

appellate court's correction of a district court’s legal or

factual error: ‘A district court would necessarily abuse

its discretion if it based its ruling on an erroneous

view of the law or on a clearly erroneous assessment

of the evidence’.” Highmark, 134 S. Ct. at 1748 n.2

(quoting Cooter & Gell v. Hartmarx Corp., 496 U.S.

384, 405 (1990)). In decisions reviewable under the

abuse of discretion standard, a district court “has wide

discretion when, but only when, it calls the game by

the right rules.” Fox v. Vice, 563 U.S. 826, 839 (2011).

“‘A district court by definition abuses its discretion

when it makes an error of law.’” Davis 97 F.3d at 738

(quoting Koon v. United States, 518 U.S. 81, 100

(1996)).

The evidence in the record shows that

Petitioner sent US Air multiple, unfulfilled written

requests for plan documents in 2011. Petitioner’s

September 30, 2011 request for plan documents

specifically asked US Air to expedite the request.

Although US Air acknowledged Petitioner’s

September 30, 2011 request—almost 60 days after she

sent it—it did not provide Petitioner with any plan

documents. Instead, US Air stated it had already

provided Petitioner with “all relevant plan documents,

summary plan descriptions and collective bargaining

agreements that govern the terms of your medical

coverage,” without specifying which of the “relevant

plan documents” specifically governed the terms of

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her medical coverage, particularly her pending issue

with US Air’s 2011 payer status determination.

Moreover, the evidence in the record shows US

Air ignored Petitioner’s December 13, 2011 request, as

US Air never responded to Petitioner’s December 13,

2011 letter. Regardless of whether US Air was

required to provide Petitioner with a copy of the 1993

SPD in October 2010 and regardless of when US Air

first asserts it provided Petitioner with a copy of the

2008 SPD, US Air did not provide Petitioner with any

SPDs in response to her September and December

2011 requests for plan documents. Further, after

Petitioner was forced to get an attorney to help her get

copies of the plan documents she had already tried to

obtain on her own and after US Air finally responded

to Petitioner’s new counsel’s January 25, 2012 letter

reiterating Petitioner’s requests for plan documents,

US Air only sent the 1993 and 2008 SPDs. Notably,

US Air’s response to the January 25, 2012 letter did

not provide any of the previously requested “relevant

group insurance policies”, “relevant amendments” to

the plans, nor did it provide copies of the collective

bargaining agreements despite US Air’s clear

obligation to provide such documents, as provided by

29 U.S.C. § 1024(b)(4). In fact, US Air did not submit

any evidence suggesting when, if ever, it provided

Petitioner with those documents following Petitioner’s

written requests for the plan documents on September

30, 2011, December 13, 2011, and January 25, 2012.

Furthermore, US Air did not provide Petitioner

with the complete 1993 SPD within 30 days of

Petitioner’s December 13, 2011 letter alerting them to

the fact that her copy of said document was missing

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pages. That alone is sufficient for the imposition of

penalties against US Air. Faircloth, 91 F.3d at 659.

Moreover, US Air did not so much as acknowledge

Petitioner’s September 30, 2011 request for plan

documents until almost 60 days after receiving said

request, and Petitioner was unable to obtain copies of

any of the plan documents she requested, beginning

on September 30, 2011, until she hired her new

attorney to help her get copies of the requested plan

documents and enforce her rights as provided by

ERISA.

Notwithstanding the foregoing, the District

Court found Petitioner did not establish she was

prejudiced by US Air’s failure to timely provide her

with plan documents, in part because certain of these

documents had apparently been provided in 2010.

(App.4a-22a.)

Although the specific statutory

“Prejudice to the party requesting the documents is

not a prerequisite to the imposition of penalties.”

Faircloth, 91 F.3d at 659 (emphasis added). Instead,

it is merely one of several factors that the court may

consider in determining whether and to what extent

it should impose penalties for the violation of section

1132(c)(1). Id.

Moreover, although the District Court found

Petitioner failed to establish prejudice, the evidence in

the record indicates otherwise. In fact, US Air did not

provide Petitioner with the copies of the documents

she requested in advance of her administrative

appeals—it took Petitioner’s hiring of her new

attorney, after she had already initiated the

administrative appeals, for Petitioner to get copies of

the 1993 and 2008 SPDs, and even then, US Air still

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did not provide Petitioner with all of the documents

she requested in September and December 2011. 10

This is more than sufficient to show Petitioner was, in

fact, prejudiced by US Air’s failure to comply with

§1132(c)(1) and that US Air’s conduct in responding to

Petitioner’s requests for plan documents was not

reasonable.

III.

This case presents a recurring question of

exceptional importance warranting the Court’s

immediate resolution.

This case raises a question of vital importance

to disabled employees in regard to their right to

continue receiving highlights health benefits and to

taxpayers, who should not bear the financial burden

of insurance plans being held as secondary when an

employee is receiving Medicare.

The consequences of the Fourth Circuit’s

decision are significant for Petitioner and for others in

a similar position. If precedent is allowed to stand

which allows a company to craft its own definition of

when Medicare is to be held secondary, in violation of

the MSP statute, the MSP statute will be rendered

toothless. In disregarding this consequence, the

Fourth Circuit has opened a door to allow private

companies to circumvent important statutory

protections for employees who would otherwise

10 Petitioner’s 2010 and 2011 requests for plan documents asked

for different documents. Although US Air maintained it had

already provided Petitioner with the requested documents in

2010, the evidence in the record simply does not support that

assertion because US Air only provided copies of the 1993 and

2008 SPDs to Petitioner in February 2012.

33

receive the full benefit of private insurance coverage

that they have earned through their “current

employment status.”

CONCLUSION

The petition for writ of certiorari should be

granted.

s/ Nekki Shutt

Nekki Shutt, Esq.

Counsel of Record

Jacqueline M. Pavlicek, Esq.

BURNETTE SHUTT &

MCDANIEL, P.A.

912 Lady Street, Second Floor

Columbia, South Carolina 29201

(803) 850-0912 (Telephone)

NShutt@BurnetteShutt.Law

Attorneys for Petitioner

Jennifer Perkins

Columbia, South Carolina

July 20, 2018

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