Petition for Writ of Certiorari — Jacqueline Avery, Petitioner v. Sedgwick Claims Management Services, Inc., et al.

Supreme Court briefNov 22, 2023

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------JACQUELINE AVERY,

Petitioner,

SEDGWICK CLAIMS MANAGEMENT SERVICES, INC.

and FCA US LLC LONG-TERM

DISABILITY BENEFIT PLAN,

Respondents.

---------------------------------♦--------------------------------On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

---------------------------------♦--------------------------------PETITION FOR WRIT OF CERTIORARI

---------------------------------♦--------------------------------ROBERT B. JUNE

Counsel of Record

LAW OFFICES OF ROBERT JUNE, P.C.

415 Detroit Street, 2nd Floor

Ann Arbor, MI 48104-1117

(734) 481-1000

bobjune@junelaw.com

Counsel for Petitioner

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

QUESTION PRESENTED

Under Section 503 of the Employee Retirement

Income Security Act of 1974 (ERISA), 29 U.S.C. § 1133,

employee benefit plans must, in accordance with the

regulations of the Secretary of Labor:

provide adequate notice in writing to any participant or beneficiary whose claim for benefits under the plan has been denied, setting

forth the specific reasons for such denial, written in a manner calculated to be understood

by the participant, and

afford a reasonable opportunity to any participant whose claim for benefits has been

denied for a full and fair review by the appropriate named fiduciary of the decision denying

the claim.

In turn, the Secretary of Labor’s claims procedure

regulations, 29 C.F.R. § 2560.503-1, precisely detail the

minimum performance standards necessary to comply

with the statute. However, the Sixth Circuit has ruled

that violations of the claims procedure regulations may

be excused under the judicial “substantial compliance”

doctrine if a judge determines that plan procedures satisfy the “essential purpose” of Section 503. App. 10-12.

The question presented is: Whether the Sixth Circuit erred in holding – in conflict with the Second and

Seventh Circuits – that violations of the claims procedure regulations, 29 C.F.R. § 2560.503-1, may be excused under the judicial “substantial compliance”

doctrine if a judge determines that plan procedures

satisfy the “essential purpose” of Section 503.

RELATED CASES

Avery v. Sedgwick Claims Management Services, No.

20-11810, U.S. District Court for the Eastern District

of Michigan. Judgment entered September 21, 2022.

Avery v. Sedgwick Claims Management Services, No.

22-1960, U.S. Court of Appeals for the Sixth Circuit.

Judgment entered July 24, 2023.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED...................................

RELATED CASES ...............................................

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

iii

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

INTRODUCTION ................................................

OPINIONS BELOW .............................................

JURISDICTION ...................................................

STATUTORY AND REGULATORY PROVISIONS

INVOLVED .......................................................

STATEMENT OF THE CASE ............................... 15

Factual Background .................................. 17

Proceedings Below .......................................

REASONS FOR GRANTING THE WRIT ............. 29

The Question Presented Has Divided the

Circuits ...................................................... 29

The Question Presented is Exceptionally

Important to ERISA Jurisprudence and

Requires a Uniform National Answer ....... 33

This Case Presents an Appropriate Vehicle

for Deciding the Question Presented .......... 35

CONCLUSION..................................................... 36

TABLE OF CONTENTS – Continued

Page

APPENDIX

Sixth Circuit Court of Appeals, Opinion, dated

July 24, 2023 .................................................... App. 1

Sixth Circuit Court of Appeals, Judgment, dated

July 24, 2023 .................................................. App. 32

United States District Court for the Eastern

District of Michigan, Southern Division, Opinion and Order, dated September 21, 2022 ..... App. 34

United States District Court for the Eastern

District of Michigan, Southern Division, Opinion and Order, dated September 14, 2021 ..... App. 73

Sixth Circuit Court of Appeals, Order, dated

August 24, 2023.............................................. App. 88

29 U.S.C. § 1133 ................................................. App. 90

29 C.F.R. § 2560.503-1 ....................................... App. 91

Email from Barry Whiteside, dated June 11,

2014 .............................................................. App. 121

Email from Craig Banasiak, dated June 25,

2014 .............................................................. App. 124

Letter from Chrysler Groups Service Center,

dated July 21, 2014 ...................................... App. 129

Letter to Patsy Ball-Johnson, dated July 28,

2014 .............................................................. App. 131

Letter from Chrysler Groups Service Center,

dated August 20, 2014 ................................. App. 137

Letter from Chrysler Groups Service Center,

dated September 12, 2014 ........................ App. 140

TABLE OF CONTENTS – Continued

Page

Letter from Sedgwick Appeals Unit, dated July

8, 2015 .......................................................... App. 143

Letter from Sedgwick Appeals Unit, dated September 30, 2015 ............................................ App. 144

TABLE OF AUTHORITIES

Page

CASES

Becknell v. Severance Pay Plan of Johnson &

Johnson, 644 F. App’x 205 (3d Cir. 2016) ................31

Bustetter v. Standard Ins. Co., 529 F. Supp. 3d

693 (E.D. Ky. 2021) ..................................................24

Bustetter v. Standard Ins. Co., No. 21-5441, 2021

WL 5873159 (6th Cir. Dec. 13, 2021) ......................24

Fessenden v. Reliance Standard Life Ins. Co.,

927 F.3d 998 (7th Cir. 2019) .............................. 31, 32

Gilbertson v. Allied Signal, Inc., 328 F.3d 625

(10th Cir. 2003).................................................. 31, 32

Gilewski v. Provident Life and Accident Ins. Co.,

683 F. App’x 399 (6th Cir. 2017) ..............................35

Halo v. Yale Health Plan, 819 F.3d 42 (2d Cir.

2016) ...................................................... 28, 29, 31, 32

Heimeshoff v. Hartford Life & Accident Ins. Co.,

571 U.S. 99, 134 S. Ct. 604 (2013) ...........................34

Hurse v. Hartford Life & Accident Ins. Co., 77 F.

App’x 310 (6th Cir. 2003) ........................................35

Jebian v. Hewlett-Packard Co. Emp. Benefits

Org. Income Prot. Plan, 349 F.3d 1098 (9th Cir.

2003) ........................................................................31

Kent v. United of Omaha Life Ins. Co., 96 F.3d

803 (6th Cir. 1996)....................................... 21, 22, 27

Leffew v. Ford Motor Co., 258 F. App’x 772 (6th

Cir. 2007) .................................................................35

vii

TABLE OF AUTHORITIES – Continued

Page

Morris v. Am. Elec. Power Long-Term Disability

Plan, 399 F. App’x 978 (6th Cir. 2010) ....................35

Myers v. Iron Workers Dist. Council of S. Ohio &

Vicinity Pension Tr., 217 F. App’x 526 (6th Cir.

2007) ........................................................................24

Myers v. Iron Workers Dist. Council of S. Ohio &

Vicinity Pension Tr., No. 2:04-CV-966, 2005

WL 2979472 (S.D. Ohio Nov. 7, 2005) .....................24

Putney v. Med. Mut. of Ohio, 111 F. App’x 803

(6th Cir. 2004).............................................. 22, 27, 35

Wenner v. Sun Life Assurance Co. of Can., 482

F.3d 878 (6th Cir. 2007) ..................................... 26, 27

STATUTES

28 U.S.C. § 1254(1) ........................................................2

28 U.S.C. § 1331 ..........................................................20

29 U.S.C. § 1001(b) ......................................................25

29 U.S.C. § 1104(a)(1) .................................................25

29 U.S.C. § 1132(a)(1)(B) ............................................20

29 U.S.C. § 1132(e)(1) ..................................................20

29 U.S.C. § 1133 ................................ 1, 3, 16, 25, 26, 35

29 U.S.C. § 1135 ..........................................................25

29 C.F.R. § 2520.104b-1(c)(1)(i) .............................. 7, 12

29 C.F.R. § 2520.104b-1(c)(1)(iii) ............................ 7, 12

29 C.F.R. § 2520.104b-1(c)(1)(iv) ............................ 7, 12

viii

TABLE OF AUTHORITIES – Continued

Page

29 C.F.R. § 2560.403-1(h) ............................................28

29 C.F.R. § 2560.503-1 ...................... 1, 3, 15, 16, 29, 33

29 C.F.R. § 2560.503-1(f )(3) ........................................33

29 C.F.R. § 2560.503-1(f )(4) ........................................33

29 C.F.R. § 2560.503-1(g) ............................................21

29 C.F.R. § 2560.503-1(h) ............................................27

29 C.F.R. § 2560.503-1(h)(3)(i) .............................. 16, 33

29 C.F.R. § 2560.503-1(h)(4) ................................. 16, 33

29 C.F.R. § 2560.503-1(i)(1)(i) .....................................34

29 C.F.R. § 2560.503-1(i)(3)(i) .....................................34

29 C.F.R. § 2560.503-1(i)(4) ........................................34

29 C.F.R. § 2560.503-1(l) .............................................34

RULES

Sup. Ct. R. 10(a) ............................................................2

Sup. Ct. R. 10(c) ............................................................2

INTRODUCTION

This petition presents an isolated question central

to ERISA jurisprudence: Whether the Sixth Circuit

erred in holding – in conflict with the Second and Seventh Circuits – that violations of the claims procedure

regulations, 29 C.F.R. § 2560.503-1, may be excused

under the judicial “substantial compliance” doctrine if

a judge determines that plan procedures satisfy the

“essential purpose” of Section 503 of ERISA, 29 U.S.C.

§ 1133. The claims procedure regulations are mandated by Section 503 and impose specific requirements

on ERISA benefit administrators regarding the timing

and content of employee benefit notices, as well as

specific procedures designed to ensure participants

that their claims will receive “a full and fair review.”

Under the Sixth Circuit “substantial compliance” test,

however, a court considers all communications between a claimant and administrator to decide whether

they combine “to notify the claimant of the specific

reasons for a claim denial” and “to provide the claimant with an opportunity to have that decision reviewed

by the fiduciary.” If so, the administrator is excused

from complying with the requirements of the claims

procedure regulations, which are supplanted by a

judge’s general assessment of the purpose of ERISA.

Here, the courts below determined that a claimant’s

letter complaining about a medical examination and

an administrator’s subsequent letter denying benefits

incongruously combined to satisfy the “essential purpose” of Section 503, effectively denying the claimant a

reasonable opportunity to appeal the adverse decision

and obtain a full and fair review. Several other circuits

have addressed the propriety of the “substantial compliance” doctrine, and the Second and Seventh Circuits

have rejected it in similar circumstances involving

violation of the claims procedure regulations. This

Court’s review is now needed to provide a uniform answer to this exceptionally important question regarding ERISA jurisprudence. Sup. Ct. R. 10(a); Sup. Ct. R.

10(c).

---------------------------------♦---------------------------------

OPINIONS BELOW

The opinion of the court of appeals (App. 1-33) is

unreported but available electronically at 2023 WL

4703865 and 2023 U.S. App. Lexis 18860. The district

court decision (App. 34-72) is unreported but available

electronically at 2022 WL 4365707 and 2022 U.S. Dist.

Lexis 170697.

---------------------------------♦---------------------------------

JURISDICTION

The opinion and order of the court of appeals affirming the district court was entered on July 24, 2023.

App. 1. The order of the court of appeals denying the

petition for rehearing was entered on August 24, 2023.

App. 88. This Court has jurisdiction pursuant to 28

U.S.C. § 1254(1).

---------------------------------♦---------------------------------

STATUTORY AND REGULATORY

PROVISIONS INVOLVED

Section 503 of the of the Employee Retirement

Income Security Act of 1974, 29 U.S.C. § 1133 states:

29 U.S.C. § 1133

In accordance with regulations of the Secretary, every employee benefit plan shall –

(1) provide adequate notice in writing to any

participant or beneficiary whose claim for

benefits under the plan has been denied,

setting forth the specific reasons for such

denial, written in a manner calculated to

be understood by the participant, and

(2) afford a reasonable opportunity to any

participant whose claim for benefits has

been denied for a full and fair review by

the appropriate named fiduciary of the

decision denying the claim.

***

The claims procedure regulations of the Secretary

of Labor, 29 C.F.R. § 2560.503-1 (2000), state in relevant part:

29 C.F.R. § 2560.503-1 Claims procedure.

(a) Scope and purpose. In accordance with the authority of sections 503 and 505 of the Employee

Retirement Income Security Act of 1974 (ERISA

or the Act), 29 U.S.C. 1133, 1135, this section sets

forth minimum requirements for employee benefit

plan procedures pertaining to claims for benefits

by participants and beneficiaries (hereinafter

referred to as claimants). Except as otherwise

specifically provided in this section, these requirements apply to every employee benefit plan described in section 4(a) and not exempted under

section 4(b) of the Act.

(b) Obligation to establish and maintain reasonable claims procedures. Every employee benefit

plan shall establish and maintain reasonable procedures governing the filing of benefit claims, notification of benefit determinations, and appeal of

adverse benefit determinations (hereinafter collectively referred to as claims procedures). The

claims procedures for a plan will be deemed to be

reasonable only if –

(1) The claims procedures comply with the requirements of paragraphs (c), (d), (e), (f ), (g), (h),

(i), and (j) of this section, as appropriate, except to

the extent that the claims procedures are deemed

to comply with some or all of such provisions pursuant to paragraph (b)(6) of this section;

***

(d) Plans providing disability benefits. The

claims procedures of a plan that provides disability benefits will be deemed to be reasonable only if

the claims procedures comply, with respect to

claims for disability benefits, with the requirements of paragraphs (b), (c)(2), (c)(3), and (c)(4) of

this section.

(e) Claim for benefits. For purposes of this section,

a claim for benefits is a request for a plan benefit

or benefits made by a claimant in accordance with

a plan’s reasonable procedure for filing benefit

claims. In the case of a group health plan, a claim

for benefits includes any pre-service claims within

the meaning of paragraph (m)(2) of this section

and any post-service claims within the meaning of

paragraph (m)(3) of this section.

(f ) Timing of notification of benefit determination.

(1) In general. Except as provided in paragraphs

(f )(2) and (f )(3) of this section, if a claim is wholly

or partially denied, the plan administrator shall

notify the claimant, in accordance with paragraph

(g) of this section, of the plan’s adverse benefit determination within a reasonable period of time,

but not later than 90 days after receipt of the claim

by the plan, unless the plan administrator determines that special circumstances require an extension of time for processing the claim. If the plan

administrator determines that an extension of

time for processing is required, written notice of

the extension shall be furnished to the claimant

prior to the termination of the initial 90-day period. In no event shall such extension exceed a period of 90 days from the end of such initial period.

The extension notice shall indicate the special circumstances requiring an extension of time and the

date by which the plan expects to render the benefit determination.

***

(3) Disability claims. In the case of a claim for

disability benefits, the plan administrator shall

notify the claimant, in accordance with paragraph

(g) of this section, of the plan’s adverse benefit determination within a reasonable period of time,

but not later than 45 days after receipt of the claim

by the plan. This period may be extended by the

plan for up to 30 days, provided that the plan administrator both determines that such an extension is necessary due to matters beyond the

control of the plan and notifies the claimant, prior

to the expiration of the initial 45-day period, of the

circumstances requiring the extension of time and

the date by which the plan expects to render a decision. If, prior to the end of the first 30-day extension period, the administrator determines that,

due to matters beyond the control of the plan, a

decision cannot be rendered within that extension

period, the period for making the determination

may be extended for up to an additional 30 days,

provided that the plan administrator notifies the

claimant, prior to the expiration of the first 30-day

extension period, of the circumstances requiring

the extension and the date as of which the plan

expects to render a decision. In the case of any extension under this paragraph (f )(3), the notice of

extension shall specifically explain the standards

on which entitlement to a benefit is based, the unresolved issues that prevent a decision on the

claim, and the additional information needed to

resolve those issues, and the claimant shall be afforded at least 45 days within which to provide the

specified information.

(g) Manner and content of notification of benefit

determination.

(1) Except as provided in paragraph (g)(2) of this

section, the plan administrator shall provide a

claimant with written or electronic notification of

any adverse benefit determination. Any electronic

notification shall comply with the standards imposed by 29 CFR 2520.104b-1(c)(1)(i), (iii), and (iv).

The notification shall set forth, in a manner calculated to be understood by the claimant –

(i) The specific reason or reasons for the adverse determination;

(ii) Reference to the specific plan provisions

on which the determination is based;

(iii) A description of any additional material

or information necessary for the claimant to perfect the claim and an explanation of why such material or information is necessary;

(iv) A description of the plan’s review procedures and the time limits applicable to such procedures, including a statement of the claimant’s

right to bring a civil action under section 502(a) of

the Act following an adverse benefit determination

on review;

(v) In the case of an adverse benefit determination by a group health plan or a plan providing

disability benefits,

(A) If an internal rule, guideline, protocol, or other similar criterion was relied upon in

making the adverse determination, either the specific rule, guideline, protocol, or other similar criterion; or a statement that such a rule, guideline,

protocol, or other similar criterion was relied upon

in making the adverse determination and that a

copy of such rule, guideline, protocol, or other criterion will be provided free of charge to the claimant upon request; or

(B) If the adverse benefit determination

is based on a medical necessity or experimental

treatment or similar exclusion or limit, either an

explanation of the scientific or clinical judgment

for the determination, applying the terms of the

plan to the claimant’s medical circumstances, or a

statement that such explanation will be provided

free of charge upon request.

***

(h) Appeal of adverse benefit determinations.

(1) In general. Every employee benefit plan shall

establish and maintain a procedure by which a

claimant shall have a reasonable opportunity to

appeal an adverse benefit determination to an appropriate named fiduciary of the plan, and under

which there will be a full and fair review of the

claim and the adverse benefit determination.

(2) Full and fair review. Except as provided in

paragraphs (h)(3) and (h)(4) of this section, the

claims procedures of a plan will not be deemed to

provide a claimant with a reasonable opportunity

for a full and fair review of a claim and adverse

benefit determination unless the claims procedures –

(i) Provide claimants at least 60 days following receipt of a notification of an adverse benefit

determination within which to appeal the determination;

(ii) Provide claimants the opportunity to

submit written comments, documents, records,

and other information relating to the claim for

benefits;

(iii) Provide that a claimant shall be provided, upon request and free of charge, reasonable

access to, and copies of, all documents, records, and

other information relevant to the claimant’s claim

for benefits. Whether a document, record, or other

information is relevant to a claim for benefits shall

be determined by reference to paragraph (m)(8) of

this section;

(iv) Provide for a review that takes into account all comments, documents, records, and other

information submitted by the claimant relating to

the claim, without regard to whether such information was submitted or considered in the initial

benefit determination.

(3) Group health plans. The claims procedures of

a group health plan will not be deemed to provide

a claimant with a reasonable opportunity for a full

and fair review of a claim and adverse benefit determination unless, in addition to complying with

the requirements of paragraphs (h)(2)(ii) through

(iv) of this section, the claims procedures –

(i) Provide claimants at least 180 days following receipt of a notification of an adverse benefit determination within which to appeal the

determination;

(ii) Provide for a review that does not afford

deference to the initial adverse benefit determination and that is conducted by an appropriate

named fiduciary of the plan who is neither the individual who made the adverse benefit determination that is the subject of the appeal, nor the

subordinate of such individual;

(iii) Provide that, in deciding an appeal of

any adverse benefit determination that is based in

whole or in part on a medical judgment, including

determinations with regard to whether a particular treatment, drug, or other item is experimental,

investigational, or not medically necessary or appropriate, the appropriate named fiduciary shall

consult with a health care professional who has

appropriate training and experience in the field of

medicine involved in the medical judgment;

(iv) Provide for the identification of medical

or vocational experts whose advice was obtained

on behalf of the plan in connection with a claimant’s adverse benefit determination, without regard to whether the advice was relied upon in

making the benefit determination;

(v) Provide that the health care professional

engaged for purposes of a consultation under paragraph (h)(3)(iii) of this section shall be an individual who is neither an individual who was

consulted in connection with the adverse benefit

determination that is the subject of the appeal, nor

the subordinate of any such individual;

***

(4) Plans providing disability benefits. The

claims procedures of a plan providing disability

benefits will not, with respect to claims for such

benefits, be deemed to provide a claimant with a

reasonable opportunity for a full and fair review of

a claim and adverse benefit determination unless

the claims procedures comply with the requirements of paragraphs (h)(2)(ii) through (iv) and

(h)(3)(i) through (v) of this section.

(i)

Timing of notification of benefit determination on review.

(1)

In general.

(i) Except as provided in paragraphs

(i)(1)(ii), (i)(2), and (i)(3) of this section, the plan

administrator shall notify a claimant in accordance with paragraph (j) of this section of the plan’s

benefit determination on review within a reasonable period of time, but not later than 60 days after

receipt of the claimant’s request for review by the

plan, unless the plan administrator determines

that special circumstances (such as the need to

hold a hearing, if the plan’s procedures provide for

a hearing) require an extension of time for processing the claim. If the plan administrator determines that an extension of time for processing is

required, written notice of the extension shall be

furnished to the claimant prior to the termination

of the initial 60-day period. In no event shall such

extension exceed a period of 60 days from the end

of the initial period. The extension notice shall indicate the special circumstances requiring an extension of time and the date by which the plan

expects to render the determination on review.

***

(3)

Disability claims.

(i) Except as provided in paragraph (i)(3)(ii)

of this section, claims involving disability benefits

(whether the plan provides for one or two appeals)

shall be governed by paragraph (i)(1) of this section, except that a period of 45 days shall apply

instead of 60 days for purposes of that paragraph.

***

(4) Calculating time periods. For purposes of paragraph (i) of this section, the period of time within

which a benefit determination on review is required to be made shall begin at the time an appeal is filed in accordance with the reasonable

procedures of a plan, without regard to whether all

the information necessary to make a benefit determination on review accompanies the filing. In the

event that a period of time is extended as permitted pursuant to paragraph (i)(1), (i)(2)(iii)(B), or

(i)(3) of this section due to a claimant’s failure to

submit information necessary to decide a claim,

the period for making the benefit determination

on review shall be tolled from the date on which

the notification of the extension is sent to the

claimant until the date on which the claimant responds to the request for additional information.

(5) Furnishing documents. In the case of an adverse benefit determination on review, the plan administrator shall provide such access to, and

copies of, documents, records, and other information described in paragraphs (j)(3), (j)(4), and

(j)(5) of this section as is appropriate.

(j)

Manner and content of notification of benefit

determination on review. The plan administrator shall provide a claimant with written or

electronic notification of a plan’s benefit determination on review. Any electronic notification shall

comply with the standards imposed by 29 CFR

2520.104b-1(c)(1)(i), (iii), and (iv). In the case of an

adverse benefit determination, the notification

shall set forth, in a manner calculated to be understood by the claimant –

(1) The specific reason or reasons for the adverse

determination;

(2) Reference to the specific plan provisions on

which the benefit determination is based;

(3) A statement that the claimant is entitled to

receive, upon request and free of charge, reasonable access to, and copies of, all documents, records,

and other information relevant to the claimant’s

claim for benefits. Whether a document, record, or

other information is relevant to a claim for benefits shall be determined by reference to paragraph

(m)(8) of this section;

4) A statement describing any voluntary appeal

procedures offered by the plan and the claimant’s

right to obtain the information about such procedures described in paragraph (c)(3)(iv) of this section, and a statement of the claimant’s right to

bring an action under section 502(a) of the Act;

and

(5) In the case of a group health plan or a plan

providing disability benefits –

(i) If an internal rule, guideline, protocol, or

other similar criterion was relied upon in making

the adverse determination, either the specific rule,

guideline, protocol, or other similar criterion; or a

statement that such rule, guideline, protocol, or

other similar criterion was relied upon in making

the adverse determination and that a copy of the

rule, guideline, protocol, or other similar criterion

will be provided free of charge to the claimant

upon request;

(ii) If the adverse benefit determination is

based on a medical necessity or experimental

treatment or similar exclusion or limit, either an

explanation of the scientific or clinical judgment

for the determination, applying the terms of the

plan to the claimant’s medical circumstances, or a

statement that such explanation will be provided

free of charge upon request; and

(iii) The following statement: “You and your

plan may have other voluntary alternative dispute

resolution options, such as mediation. One way to

find out what may be available is to contact your

local U.S. Department of Labor Office and your

State insurance regulatory agency.’’

***

(l) Failure to establish and follow reasonable

claims procedures. In the case of the failure of a

plan to establish or follow claims procedures consistent with the requirements of this section, a

claimant shall be deemed to have exhausted the

administrative remedies available under the plan

and shall be entitled to pursue any available remedies under section 502(a) of the Act on the basis

that the plan has failed to provide a reasonable

claims procedure that would yield a decision on

the merits of the claim.

***

(m) Definitions. The following terms shall have the

meaning ascribed to such terms in this paragraph

(m) whenever such term is used in this section:

***

(8) A document, record, or other information

shall be considered “relevant” to a claimant’s claim

if such document, record, or other information

(i) Was relied upon in making the benefit determination;

(ii) Was submitted, considered, or generated

in the course of making the benefit determination,

without regard to whether such document, record,

or other information was relied upon in making

the benefit determination;

(iii) Demonstrates compliance with the administrative processes and safeguards required

pursuant to paragraph (b)(5) of this section in

making the benefit determination; or

(iv) In the case of a group health plan or a

plan providing disability benefits, constitutes a

statement of policy or guidance with respect to the

plan concerning the denied treatment option or

benefit for the claimant’s diagnosis, without regard to whether such advice or statement was relied upon in making the benefit determination.

***

---------------------------------♦---------------------------------

STATEMENT OF THE CASE

This petition presents an isolated question central

to ERISA jurisprudence: Whether the Sixth Circuit

erred in holding – in conflict with the Second and Seventh Circuits – that violations of the claims procedure

regulations, 29 C.F.R. § 2560.503-1, may be excused

under the judicial “substantial compliance” doctrine if

a judge determines that plan procedures satisfy the

“essential purpose” of Section 503 of ERISA, 29 U.S.C.

§ 1133. The facts necessary for the Court’s decision are

not in dispute, and there can be no doubt that Respondent Sedgwick Claims Management Services violated

the claims procedure regulations in the course of processing Petitioner Jacqueline Avery’s claim. Ms. Avery

was not provided 180 days to appeal her adverse claim

decision as promised in the regulation, and Sedgwick

issued a “final decision” of Ms. Avery’s “appeal” without

actually receiving an appeal from Ms. Avery.

However, the courts below looked at whether they

believed Sedgwick was in “substantial compliance”

with the “essential purpose” of Section 503 rather than

requiring adherence the detailed procedures established as minimum performance standards in 29 C.F.R.

§ 2560.503-1. To accomplish this, the court of appeals

construed Ms. Avery’s July 28, 2014 letter protesting a

medical examination, App. 131-36, as though it was an

appeal of Sedgwick’s subsequent August 20, 2014 benefit denial letter. App. 137-39. As incongruous as this

may seem, it permitted the court of appeals to approve

Sedgwick’s September 12, 2014 “final decision” denying Ms. Avery’s appeal without affording her the 180

day appeal period mandated by 29 CFR § 2560.5031(h)(3)(i), (h)(4).

The question of whether this judicial “substantial

compliance” doctrine may excuse violations of the

claims procedure regulations is crucial to maintaining

the integrity of ERISA’s remedial scheme. The Sixth

Circuit decision conflicts with decisions of the Second

and Seventh Circuits, and this case presents an appropriate vehicle for deciding the issue. Therefore, it

would be appropriate for the Court to grant the writ at

this time.

A. Factual Background

The facts necessary for the Court’s decision are

not in dispute. Ms. Avery was a participant in the FCA

US LLC Long-Term Disability Benefit Plan, for which

Sedgwick serves as claims administrator, when she

first became disabled on July 15, 2011. App. 2. Sedgwick approved Ms. Avery’s claim for disability on the

basis of “totally disabling condition(s) of Right Lower

Extremity Neuropathy & reflex sympathetic dystrophy lower extremity” as confirmed in clinical examinations with two independent neurologists. App. 3.

Ms. Avery continuously furnished medical records

from her treating physicians to substantiate her disability, and Sedgwick repeatedly approved Ms. Avery’s

long-term disability benefits through early 2014. App.

Beginning on April 14, 2014, however, Chrysler’s

corporate investigations unit conducted surveillance

on Ms. Avery on five occasions, mistakenly drawing the

conclusion that, “[a]lthough not confirmed, it appears

that she may be running some sort of business out of

her home.” App. 121-22. The surveillance apparently

spotted a “woman who shows up at Avery’s home the

same time every day,” and rather than identifying

this woman as one of Ms. Avery’s medical caregivers,

the investigation unit surmised that she may be running a business. Id. Chrysler and Sedgwick then came

up with a plan to coordinate additional surveillance

with an independent medical examination to be scheduled for Ms. Avery with Dr. Joel Shavell. App. 124-28.

Dr. Shavell is not a neurologist, the specialty appropriate for evaluating Ms. Avery’s condition, but he nonetheless determined that Ms. Avery could return to

work. App. 4-5. Based on Dr. Shavell’s opinion, Sedgwick sent a letter on July 21, 2014 requesting Ms.

Avery to “report to your plant medical department for

a determination of your ability to return to work.” App.

129.

Ms. Avery obtained a copy of Dr. Shavell’s report,

and on July 28, 2014, she wrote a letter to Sedgwick “to

appeal my recent return to work decision.” App. 13136. Ms. Avery provided a detailed refutation of the assertions contained in Dr. Shavell’s report and requested Sedgwick “to reverse the return to work

authorization.” App. 136. Sedgwick subsequently sent

a letter dated August 20, 2014 to Ms. Avery that cited

“the results of your recent IME examination, in which

you were found able to work,” and stated:

Based upon this information we are requesting that you report to your Human Resource

for a determination of your ability to return to

work. Your benefits may be terminated effective July 21, 2014 pending the outcome of the

ability to work examination.

App. 137. The August 20, 2014 letter also explained

that Ms. Avery could “appeal this decision by sending

a written request within 180 calendar days of the date

you receive this letter.” App. 138. Nevertheless, Sedgwick did not wait for the 180-day appeal period to expire before sending Ms. Avery its September 12, 2014

letter stating Sedgwick had “completed our review of

your claim and appeal under your employer’s LongTerm Disability Benefit Plan.” App. 140. Ms. Avery had

not submitted an appeal of the August 20, 2014 decision, and there was no communication with Ms. Avery

between sending the August 20, 2014 letter and issuing the September 12, 2014 appeal decision. Still,

Sedgwick informed Ms. Avery: “The decision is the

Claim Administrator’s final decision. You have the

right to bring a civil action under ERISA 502(a).” App.

141.

During the district court proceedings, it came to

light that Sedgwick had sent a letter nearly a year

later to Ms. Avery’s former address (she had moved after her benefits were stopped and never received the

letter) after Ms. Avery consulted with a local attorney

who scolded Sedgwick for terminating Ms. Avery’s

benefits. App. 143. The July 8, 2015 letter stated in

full:

Your file is under re-review. If you have any

additional medical information for the rereview, the deadline to submit additional

medical information is July 28, 2015.

App. 143. The letter was sent solely to Ms. Avery’s former address, not to the attorney who had scolded Sedgwick. Id. The letter clearly did not comply with the

notice requirements of the claims procedure regulations, did not explain the “re-review” process, and did

not offer the required 180-day period to submit an appeal. Id. On September 30, 2015, Sedgwick completed

its “re-review” and upheld the termination of Ms.

Avery’s benefits.

B. Proceedings Below

Ms. Avery filed this action in the district court for

the Eastern District of Michigan, which had jurisdiction pursuant to 29 U.S.C. § 1132(e)(1) and 28 § U.S.C.

§ 1331, seeking recovery of her long term disability

benefits pursuant to Section 502(a)(1)(B) of ERISA, 29

U.S.C. § 1132(a)(1)(B). Understanding that Sedgwick’s

July 21, 2014 letter was being treated as a benefit determination letter, Ms. Avery filed a procedural challenge in district court complaining that the July 21,

2014 letter did not comply with the requirements of

the claims procedure regulations. This procedural

challenge was rejected by the district court, which

noted:

It is undisputed that the July 21 letter did

not provide a detailed determination of Defendants’ decision to deny Plaintiff further

disability benefits and did not include any

information on how an appeal could be filed.

Defendants factually dispute whether this

letter constituted a benefits determination or

merely communicated the findings of Dr.

Shavell’s IME. And Defendants point to

Sedgwick’s detailed August 20, 2014 letter –

which more closely hewed to the requirements

of 29 C.F.R. § 2560.503-1(g) – as the document

meant to notify Plaintiff of final benefits determination.

App. 82 (citations to record omitted). Obviously, if

Sedgwick’s admittedly defective July 21, 2014 letter

did not constitute a benefits determination, then Ms.

Avery’s July 28, 2014 letter protesting Sedgwick’s “return to work decision” could not constitute an appeal

of a benefits determination. App. 131-36. The district

court avoided this anomaly by reasoning:

The court need not wade into this factual

dispute because the Sixth Circuit found in

Kent v. United of Omaha Life Ins. Co. that

an insurer “substantially complied with

E.R.I.S.A.’s procedural requirements” when

the claimant was provided with two consecutive letters that collectively complied with

ERISA’s notification requirement. 96 F.3d

803, 807 (6th Cir. 1996) (emphasis added). In

Kent, the insurer’s notification procedures

“were technically deficient because the [contents of the] first letter did not meet the requirements of the statute and regulation, and

the second letter was untimely (it being issued more than 90 days after the decision to

deny the claim).” Id. But the court determined that “when viewed in light of the myriad of communications between claimant, her

counsel and the insurer, [the letters] were sufficient to meet the purposes of Section 1133 in

insuring that the claimant understood the

reasons for the denial of the claim as well as

her rights to review of the decision.” Id.

In the present case, Defendants’ substantial

compliance with the notification requirements is even more readily apparent, because

unlike in Kent, even if the court assumes that,

as Plaintiff alleges, both letters were attempts

at notifying Plaintiff of a final benefit determination, Sedgwick’s second letter provided a

timely correction undisputedly within the

ninety-day notification window required by

the regulation. Therefore, any alleged “procedural failures” with regards to the notification

letters cannot plausibly said to be “substantial” under Sixth Circuit case law because the

alleged procedural violations “did not prevent

[Plaintiff ] from gaining information necessary to contest [her] denial of benefits.” Putney

[v. Med. Mut. of Ohio, 111 F. App’x 803, 807

(6th Cir. 2004)].

App. 82-83. Here, the district court viewed it as Ms.

Avery’s duty to obtain the information necessary to

contest her denial of benefits, rather than recognizing Sedgwick’s duty to provide her with proper notice

in compliance with Section 503 and the claims procedure regulations. Notably, neither the July 21, 2014

letter nor the August 20, 2014 letter actually notified

Ms. Avery that her benefits were terminated. The

July 21, 2014 letter notified Ms. Avery that her “benefits may be suspended effective July 22, 2014 pending

the outcome of the ability to work examination.” App.

129-30. The August 20, 2014 letter similarly instructed

Ms. Avery to report “for a determination of your ability

to return to work,” and notified Ms. Avery that: “Your

benefits may be terminated effective July 21, 2014

pending the outcome of the ability to work examination.” App. 137. Ms. Avery was not properly put on notice that her benefits were terminated, and although

she was promised that she could “appeal this decision

by sending a written request within 180 calendar days

of the date you receive this letter,” App. 138, Sedgwick

did not grant Ms. Avery that appeal period, instead issuing its final decision terminating her benefits on

September 12, 2014. App. 140. As a result, Ms. Avery

was not provided with a reasonable opportunity to respond to the August 20, 2014 letter with comments or

additional records, but the district court rejected Ms.

Avery’s procedural challenge based on the “substantial

compliance” doctrine and its view that Ms. Avery’s

July 28, 2014 letter constituted an appeal of Sedgwick’s August 20, 2014 adverse benefit decision. App.

82-83.

The district court granted defendants’ motion for

judgment on the administrative record, and denied

plaintiff ’s motion for judgment, despite the myriad

procedural irregularities in the case. App. 34-72.

Among other things, Ms. Avery argued that the de

novo standard of review should be applied because

Sedgwick failed to comply with the Department of Labor claims procedure regulations. App. 54. The district

court noted that “the Sixth Circuit has not issued a

clear guidance on whether the de novo standard applies in a case involving procedural deficiencies, but at

least two district courts’ opinions, which were highly

regarded on appeal, have adopted this rule,” elaborating in a footnote:

In Bustetter v. Standard Ins. Co., 529 F. Supp.

3d 693 (E.D. Ky. 2021), the Eastern District of

Kentucky noted the lack of clear guidance

from the Sixth Circuit and said that “until the

Sixth Circuit provides additional guidance,

. . . [it] will follow the prevailing view in the

circuits and apply de novo review for violation

of the 2002 version of the regulations.” Id. at

703. The Sixth Circuit affirmed Bustetter and

applauded it as a “notably thorough and wellreasoned opinion.” Bustetter v. Standard Ins.

Co., No. 21-5441, 2021 WL 5873159, at *1 (6th

Cir. Dec. 13, 2021). In Myers v. Iron Workers

Dist. Council of S. Ohio & Vicinity Pension Tr.,

No. 2:04-CV-966, 2005 WL 2979472, at *6

(S.D. Ohio Nov. 7, 2005), the Southern District

of Ohio also applied the de novo standard of

review “[c]onsidering the conflicting and potentially changing law on the subject of what

standard of review applies in a case involving

the procedural deficiencies.” Id. at *6. The

Sixth Circuit adopted the reasoning in Myers’

“comprehensive and well-reasoned opinion.”

Myers v. Iron Workers Dist. Council of S. Ohio

& Vicinity Pension Tr., 217 F. App’x 526 (6th

Cir. 2007).

App. 54-55. Nevertheless, the district court engaged

in an analysis of the law-of-the-case doctrine and

concluded that, because Ms. Avery had not prevailed in

her procedural challenge seeking discovery, she could

not now assert procedural errors as a basis for seeking

de novo review. App. 55-56. Reviewing the case under

the arbitrary and capricious standard of review, the

district court granted judgment in favor of defendants

on September 21, 2022. App. 59-72.

The court of appeals affirmed in a decision issued

on July 24, 2023. App. 1-33. The court of appeals concluded that “Sedgwick substantially complied with

ERISA claims procedures,” and provided this summary of the judicial “substantial compliance” doctrine

in the context of the claims procedure regulations:

ERISA Procedural Requirements

We begin with a brief overview of the ERISA

regulations that govern employee benefit

claims procedures. ERISA ensures that fiduciaries administer employee benefit plans

“solely in the interest of the participants and

beneficiaries.” 29 U.S.C. §§ 1104(a)(1), 1001(b).

Under ERISA, the Secretary of Labor has the

authority to enact regulations that govern the

administration of employee benefit claims.

Id. §§ 1133, 1135. Section 1133 provides that

every employee benefit plan must:

(1) provide adequate notice in writing

to any participant or beneficiary whose

claim for benefits under the plan has been

denied, setting forth the specific reasons

for such denial, written in a manner

calculated to be understood by the participant, and

(2) afford a reasonable opportunity to

any participant whose claim for benefits

has been denied for a full and fair review

by the appropriate named fiduciary of the

decision denying the claim.

Id. § 1133. We have held that the “essential

purpose” of these requirements is twofold:

“(1) to notify the claimant of the specific reasons for a claim denial, and (2) to provide the

claimant with an opportunity to have that

decision reviewed by the fiduciary.” Wenner v.

Sun Life Assurance Co. of Can., 482 F.3d 878,

882 (6th Cir. 2007) (emphasis and citation

omitted).

In deciding whether a plan has satisfied

the requirements of § 1133, we employ a “substantial compliance” test. Id. Under this test,

all communications between the claimant

and the administrator are considered. “If the

communications between the administrator

and participant as a whole fulfill the twin

purposes of § 1133, the administrator’s decision will be upheld even where the particular

communication does not meet those requirements.” Id. (internal quotation marks omitted).

App. 10-12. The court of appeals then applied the “substantial compliance” doctrine to excuse Sedgwick’s procedural violations:

We need not resolve whether Sedgwick’s July

21, 2014, letter was in fact a formal benefit

determination, because Sedgwick’s collective

communications with Avery substantially

complied with ERISA’s procedural requirements. See Kent, 96 F.3d at 807 (holding that,

despite technical deficiencies in the insurer’s

denial letters, “when viewed in light of the

myriad of communications between claimant,

her counsel and the insurer, [the letters] were

sufficient to meet the purposes of Section

1133 in insuring that the claimant understood the reasons for the denial of the claim

as well as her rights to review of the decision”). Although Sedgwick’s July 21, 2014, letter undoubtedly fell short of meeting the

requirements articulated in § 2560.503-1(h),

its August 20, 2014, denial letter corrected

any deficiencies. Avery was made aware of

the reasons for Sedgwick’s benefits denial

(i.e., the results of Dr. Shavell’s independent

medical examination) and of her appeal

rights. Collectively, therefore, Sedgwick’s

communications with Avery satisfied the dual

purposes behind (and plain text of ) Section

1133. See Wenner, 482 F.3d at 882; Putney v.

Med. Mut. of Ohio, 111 F. App’x 803, 807 (6th

Cir. 2004) (finding that an administrator’s

failure to satisfy ERISA notice requirements

was “neither significant nor outcome determinative” where the “procedural failures did not

prevent [the claimant] from gaining information necessary to contest his denial of benefits”).

App. 14-15. Thus, the court of appeals incongruously

viewed Ms. Avery’s July 28, 2014 letter as the appeal

of Sedgwick’s subsequent August 20, 2014 adverse

benefit decision. App. 15. The court of appeals coupled

this with the fact that Sedgwick “effectively afforded

Avery a second appeal by voluntarily re-reviewing her

claim in 2015.” App. 15. In essence, although Sedgwick

“undoubtedly fell short of meeting the requirements

articulated in § 2560.403-1(h),” the “substantial compliance” doctrine acted to excuse these regulatory violations. It did not matter that Sedgwick’s so-called rereview itself violated the regulations, so long as judge

could conclude the combination of the communications

met the court of appeals view of Section 503’s essential

purpose. App. 11-12.

Ms. Avery also contended once again that Sedgwick’s procedural violations should result in having

the claim reviewed de novo, citing Halo v. Yale Health

Plan, 819 F.3d 42 (2d Cir. 2016), but the court of appeals expressly rejected the Halo analysis in a footnote:

Relying on the Second Circuit’s opinion in

Halo v. Yale Health Plan, 819 F.3d 42 (2d Cir.

2016), Avery argues that the de novo standard

of review should apply to our review of the

administrator’s decision to terminate benefits

because Sedgwick allegedly failed to comply

with the claims procedure regulation. Appellant’s Br. at 25. In Halo, the Second Circuit

held that “a plan’s failure to comply with

the Department of Labor’s claims procedure

regulation, 29 C.F.R. § 2560.503-1, will result

in that claim being reviewed de novo in federal court, unless the plan has otherwise established procedures in full conformity with

the regulation and can show that its failure to

comply with the regulation in the processing

of a particular claim was inadvertent and

harmless.” 819 F.3d at 45. However, this circuit has yet to adopt such a rule, and we decline to do so here.

App. 9-10. After the court of appeals issued its opinion,

Ms. Avery sought rehearing, but the petition for rehearing was denied on August 24, 2023. App. 88.

---------------------------------♦---------------------------------

REASONS FOR GRANTING THE WRIT

The question presented is narrow but exceptionally important to ERISA jurisprudence, and it would

be appropriate for the Court to grant the writ at this

time for the following reasons.

a. The Question Presented Has Divided

the Circuits

While the court of appeals applied a very broad

rendering of the “substantial compliance” doctrine in

this case, other circuits have taken a different path.

As acknowledged by the court of appeals, the Second

Circuit has required stricter compliance with the

specific terms of the claims procedure regulation, and

failure to comply will result in having the claim reviewed de novo by the court:

As the Department [of Labor] explained in the

preamble to the 2000 regulation, “[i]nasmuch

as the regulation makes substantial revisions

in the severity of the standards imposed on

plans, we believe that plans should be held to

the articulated standards as representing the

minimum procedural regularity that warrants imposing an exhaustion requirement on

claimants.” 65 Fed. Reg. at 70,256.

In other words, if plans comply with the regulation, which is designed to protect employees,

the plans get the benefit of both an exhaustion

requirement and a deferential standard of review when a claimant files suit in federal

court – protections that will likely encourage

employers to continue to voluntarily provide

employee benefits. But if plans do not comply

with the regulation, they are not entitled to

these protections. That result is not unnecessarily harsh, as those in favor of the substantial compliance doctrine have contended. The

failure to comply does not result in any oppressive consequence; plans will have to pay

the claim only if it is a meritorious claim,

which they are already contractually obligated to do. They will simply lose the benefit

of the great deference afforded by the arbitrary and capricious standard. In short, this

regulatory approach balances the competing

interests of employers and employees and, accordingly, ERISA’s dual congressional purposes.

Halo, 819 F.3d at 56. The Seventh Circuit, while not

expressly adopting the Halo analysis, has recognized

that a court that excused violations of deadlines contained in the claims procedure regulations “would upset the careful balance that the regulations strike

between the competing interests of administrators and

claimants.” Fessenden v. Reliance Standard Life Ins.

Co., 927 F.3d 998, 1004 (7th Cir. 2019). The Seventh

Circuit specifically addressed the “substantial compliance” doctrine as follows:

We acknowledge that some of our sister circuits have been willing to apply the substantial compliance exception to blown deadlines.

See Gilbertson [v. Allied Signal, Inc., 328 F.3d

625, 634-35 (10th Cir. 2003)] (applying the

substantial compliance doctrine to an administrator’s untimely decision under the pre2002 regulation); Jebian [v. Hewlett-Packard

Co. Emp. Benefits Org. Income Prot. Plan, 349

F.3d 1098, 1108 (9th Cir. 2003)] (“Absent unusual circumstances, an administrator engaged

in a genuine, productive, ongoing dialogue

that substantially complies with a plan’s and

the regulations’ timelines should remain entitled to whatever discretion the plan documentation gives it.”); see also Becknell v. Severance

Pay Plan of Johnson & Johnson, 644 F. App’x

205, 213 (3d Cir. 2016) (conducting deferential

review because “[the plan administrator’s]

late decision does not rise to the level of a

severe procedural violation”). These circuits

have seen no difference between forgiving

tardiness and forgiving violations of other

procedural requirements.

We disagree. As an initial matter, it is worth

noting that many of the circuits currently applying the exception to missed deadlines have

relied on precedent that predates the 2002

version of the regulations. The earlier version

offered a much less nuanced approach to

balancing the competing interests at stake,

which subjected the goals of ERISA to different kinds of gamesmanship and perverse incentives. See Gilbertson, 328 F.3d at 634-35;

see id. at 629 n.3, 631 n.4. For example, because the old regulations did not include tolling provisions to stop the clock while the

administrator was waiting on information

from the claimant, “claimants might [have

been] encouraged to delay a final decision by

suggesting that they intend[ed] to produce additional information, only to pull the plug and

demand de novo review in federal court on the

[last] day.” Id. at 635. The substantial compliance doctrine allowed courts the flexibility to

police such gamesmanship and avoid results

that would be “antithetical to the aims of

ERISA.” Id. But the amendments reflected in

the 2002 regulations address the incentives

concern head-on by including more detailed

and balanced provisions on timing and tolling.

Thus, the oft-invoked rationale for applying

the exception to missed deadlines no longer

exists.

Fessenden, 927 F.3d at 1005-06. The holdings of Halo

and Fessenden differ starkly from the Sixth Circuit

in this case. Therefore, it would be appropriate for the

Court to grant the writ to resolve the district split at

this time.

b. The Question Presented is Exceptionally Important to ERISA Jurisprudence

and Requires a Uniform National Answer

This Court has previously explained the importance of complying with the claims procedure regulations as part of ERISA’s two-tiered remedial scheme:

The first tier of ERISA’s remedial scheme is

the internal review process required for all

ERISA disability-benefit plans. 29 CFR

§ 2560.503-1. After the participant files a

claim for disability benefits, the plan has 45

days to make an “adverse benefit determination.” § 2560.503-1(f )(3). Two 30-day extensions are available for “matters beyond the

control of the plan,” giving the plan a total of

up to 105 days to make that determination.

Ibid. The plan’s time for making a benefit determination may be tolled “due to a claimant’s

failure to submit information necessary to

decide a claim.” § 2560.503-1(f )(4).

Following denial, the plan must provide the

participant with “at least 180 days . . .

within which to appeal the determination.”

§§ 2560.503-1(h)(3)(i), (h)(4). The plan has

45 days to resolve that appeal, with one 45day extension available for “special circumstances (such as the need to hold a hearing).”

§§ 2560.503-1(i)(1)(i), (i)(3)(i). The plan’s time

for resolving an appeal can be tolled again if

the participant fails to submit necessary information. § 2560.503-1(i)(4). In the ordinary

course, the regulations contemplate an internal review process lasting about one year. Tr.

of Oral Arg. 22. If the plan fails to meet its own

deadlines under these procedures, the participant “shall be deemed to have exhausted

the administrative remedies.” § 2560.503-1(l).

Upon exhaustion of the internal review process, the participant is entitled to proceed immediately to judicial review, the second tier of

ERISA’s remedial scheme.

Heimeshoff v. Hartford Life & Accident Ins. Co., 571

U.S. 99, 110-11, 134 S. Ct. 604, 613 (2013). Sedgwick

did not provide “at least 180 days . . . within which to

appeal the determination.” Id. The court of appeals’

application of the judicial “substantial compliance”

doctrine simply obviates the regulatory requirements

altogether, supplanting them with the determination

of a judge as to whether communications as a satisfied

the “essential purpose” of Section 503, which itself is

a reduction of the requirements of the statute. App.

11 (“the ‘essential purpose’ of these requirements is

twofold: ‘(1) to notify the claimant of the specific reasons for a claim denial, and (2) to provide the claimant with an opportunity to have that decision

reviewed by the fiduciary.’ ”). But Section 503 requires more, and the best evidence of the essential

purpose of a statute should be the text of the statute.

Section 503 also mandates the Secretary of Labor to

adopt implementing regulations, 29 U.S.C. § 1133, and

those regulations should be followed by the courts.

Therefore, to ensure the integrity of the two-tiered

ERISA remedial scheme, the Court should grant the

writ in this case.

c. This Case Presents an Appropriate Vehicle for Deciding the Question Presented

Despite the fact that the court of appeals’ decision

is unreported, this case presents an excellent vehicle

for deciding the question presented. The regulatory

violations at issue and the circuit court split are clear.

The issue is narrow but essential to ERISA jurisprudence. Moreover, the distinction between reported and

unreported decisions has been blurred in recent years.

For example, the court of appeals’ decision below cites

several unreported decisions as authority for its conclusions. App. 15, citing Putney v. Med. Mut. of Ohio,

111 F. App’x 803, 807 (6th Cir. 2004); App. 24, citing

Gilewski v. Provident Life and Accident Ins. Co., 683 F.

App’x 399, 406 (6th Cir. 2017); App. 27-28, citing Morris

v. Am. Elec. Power Long-Term Disability Plan, 399 F.

App’x 978, 986 (6th Cir. 2010) and Leffew v. Ford Motor

Co., 258 F. App’x 772, 779 (6th Cir. 2007); App. 29, citing

Hurse v. Hartford Life & Accident Ins. Co., 77 F. App’x

310, 318 (6th Cir. 2003).

Particularly given the broad application of the judicial “substantial compliance” doctrine announced in

the court of appeals’ decision, there can be no doubt

that this analysis will serve as authority for future

decisions. Therefore, the Court should grant the writ

in this case to provide a uniform answer to the question presented.

---------------------------------♦---------------------------------

CONCLUSION

For all of these reasons, Petitioner Jacqueline

Avery requests this Honorable Court to grant her a

writ of certiorari in this case.

Respectfully submitted,

ROBERT B. JUNE

Counsel of Record

LAW OFFICES OF ROBERT JUNE, P.C.

415 Detroit Street, 2nd Floor

Ann Arbor, MI 48104-1117

(734) 481-1000

bobjune@junelaw.com

Counsel for Petitioner

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.