Amicus Curiae Brief — Michael Cloud, Petitioner v. The Bert Bell/Pete Rozelle NFL Player Retirement Plan

Supreme Court briefAug 19, 2024

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No. 24-61

In the

Supreme Court of the United States

MICHAEL CLOUD,

Petitioner,

THE BERT BELL/PETE ROZELLE

NFL PLAYER RETIREMENT PLAN,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

BRIEF OF PROFESSIONAL FOOTBALL WIVES

FOR CHANGE AS AMICUS CURIAE IN SUPPORT

OF PETITIONER

Katari D. Buck

Counsel of Record

ASIATICO & ASSOCIATES, PLLC

5801 Headquarters Drive, Suite 700

Plano, Texas 75024

(214) 570-0700

katari@baalegal.com

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TABLE OF CONTENTS

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

INTEREST OF AMICUS CURIAE ............................1

SUMMARY OF THE ARGUMENT ............................3

ARGUMENT ...............................................................4

1. The Court Should Grant the Petition to Resolve

the Inconsistent Application of the Standard of

Review to ERISA Procedural Violations by the

U.S. Circuit Courts of Appeal................................ 4

A. The Fifth Circuit Applies the “Substantial

Compliance” Standard. ................................... 5

B. The Second, Ninth, and Eleventh Circuits

Apply a Heightened Standard of Review to

ERISA Procedural Violations. ........................ 6

C. Other Circuits Apply the Abuse of Discretion

or Arbitrary and Capricious Standard and

May Reduce the Level of Deference if

Procedural Violations are Significant. ........... 7

D. The First and Sixth Circuits Do Not Follow

the Other Circuits’ Varied Approaches. ......... 9

2. The Court Should Grant the Petition Because the

Fifth Circuit’s Opinion Does Not Honor ERISA’s

Stated Purposes. .................................................. 11

CONCLUSION ..........................................................12

CASES

TABLE OF AUTHORITIES

Abatie v. Alta Health & Life Ins. Co.,

458 F.3d 955 (9th Cir. 2006) .................................. 6

Atkins v. Bert Bell/Pete Rozelle NFL Player Ret.

Plan, 694 F.3d 557 (5th Cir. 2012) ......................... 6

Bard v. Boston Ship. Ass’n,

471 F.3d 229 (1st Cir. 2006) ................................... 9

Booth v. Wal–Mart Stores, Inc. Associates Health &

Welfare Plan, 201 F.3d 335 (4th Cir. 2000) ........... 8

Boysen v. Illinois Tool Works, Inc.,

767 F. App’x 799 (11th Cir. 2019) .......................... 6

Buttram v. Cent. States, Se. & Sw. Areas Health

& Welfare Fund, 76 F.3d 896 (8th Cir. 1996) ........ 8

Conkright v. Frommert,

559 U.S. 506 (2010) .................................... 5, 10, 11

Firestone Tire & Rubber Co. v. Bruch,

489 U.S. 101 (1989) .......................................... 4, 10

Fort Halifax Packing Co. v. Coyne,

482 U.S. 1 (1987) .................................................. 10

George v. Reliance Standard Life Ins. Co.,

776 F.3d 349 (5th Cir. 2015) .................................. 5

Halo v. Yale Health Plan, Dir. of Benefits &

Records Yale Univ., 819 F.3d 42 (2d Cir. 2016) .... 6

Hancock v. Metro. Life Ins. Co.,

590 F.3d 1141 (10th Cir. 2009) .............................. 9

James v. Intl. Painters and Allied Trades Indus.

Pension Plan, 738 F.3d 282 (D.C. Cir. 2013) ......... 9

LaAsmar v. Phelps Dodge Corp. Life, Accidental

Death & Dismemberment & Dependent Life

Ins. Plan, 605 F.3d 789 (10th Cir. 2010) ............... 9

iii

Lafleur v. Louisiana Health Service & Indemnity

Co., 563 F.3d 148 (5th Cir. 2009) ........................... 5

M.K. v. Visa Cigna Network POS Plan,

628 Fed. Appx. 585 (10th Cir. 2015) ...................... 8

McIntyre v. Reliance Stand. Life Ins. Co.,

73 F.4th 993 (8th Cir. 2023) ................................... 8

Metropolitan Life Insurance Company v. Glenn,

554 U.S. 105 (2008) ................................................ 4

Miller v. American Airlines, Inc.,

632 F.3d 837 (3d Cir. 2011) .................................... 7

Nichols v. Prudential Ins. Co. of Am.,

406 F.3d 98 (2d Cir. 2005) ...................................... 9

Solomon v. Bert Bell/Pete Rozelle NFL Player

Ret. Plan, 860 F.3d 259 (4th Cir. 2017) ................. 7

Thompson v. Life Ins. Co. of N.A.,

30 Fed. Appx. 160 (4th Cir. 2002) ........................ 11

Weitzenkamp v. Unum Life Ins. Co. of Am.,

661 F.3d 323 (7th Cir. 2011) .................................. 8

Wenner v. Sun Life Assur. Co. of Canada,

482 F.3d 878 (6th Cir. 2007) ............................ 9, 10

STATUTES AND RULES

29 U.S.C. §§ 1001(b), 1104(a)(1) .............................. 11

29 U.S.C. §§ 1023(a)(4), (d) ...................................... 11

29 U.S.C. § 1133 ......................................................... 5

S. Ct. Rule 37.6........................................................... 1

REGULATIONS

29 C.F.R. § 2560.503-1 ............................................... 5

INTEREST OF AMICUS CURIAE 1

Professional Football Wives for Change

(“PFWC”) is an unincorporated association formed by

the spouses and families of current and retired

National Football League (NFL) players in the early

2000s. The organization was established with a clear

and urgent purpose: to advocate for the rights and

welfare of these players in connection with the NFL’s

collective bargaining agreement and retirement plan.

Over the years, the members of PFWC have borne

witness to the profound and often devastating impact

that participation in the NFL has had on their

husbands’ health and well-being. These women, who

have supported their husbands through the highs and

lows of their professional careers, have also stood by

them as they faced the physical and emotional

consequences of years spent in one of the most

demanding and dangerous sports.

Many of these men, including the Petitioner in

this case, have suffered severe and debilitating

injuries directly related to their careers in

professional football. These injuries range from

chronic pain and mobility issues to traumatic brain

injuries and other long-term health conditions that

profoundly affect their quality of life. Despite the

1 Pursuant to S. Ct. Rule 37.6, no counsel for a party

authored this brief in whole or in part or made a monetary

contribution to fund its preparation or submission. Amicus

Curiae Advocacy for Fairness in Sports made a monetary

contribution to fund the submission of the brief.

clear and undeniable link between their injuries and

their time in the league, these players have

encountered significant challenges in securing the

disability benefits they need and deserve under the

NFL’s retirement plan.

These dedicated athletes, who once thrilled

fans with their prowess on the field and contributed

to the sport’s rich history, now find themselves

grappling with the lasting physical and emotional

scars that affect their daily lives. Yet, when they turn

to the NFL’s retirement plan for support, they often

face an array of roadblocks and denials that leave

their essential needs unmet. This denial of benefits

not only exacerbates their suffering but also

undermines the promises made by the league’s

benefit system—a system that was designed, at least

in theory, to provide for these men in their postplaying years.

PFWC stands firmly with these families,

advocating tirelessly for fair and just access to the

benefits that are rightfully owed. The denial of

benefits to plan participants, despite the clear

connection to their NFL careers, underscores a

critical issue in ensuring that former players receive

the support they require for their long-term health

and welfare. The NFL’s retirement plan is not merely

a contractual obligation; it represents a moral

commitment to the men who sacrificed their bodies

and health for the game.

This case presents a question of extreme

importance to PFWC, as its members continue to

advocate for their husbands to receive the benefits

they have earned and to which they are entitled. The

outcome of this case will not only affect the lives of

Petitioner and similarly situated former players but

will also set a precedent for how the NFL and its

retirement plan address the needs of those who have

given so much to the sport. PFWC is committed to

ensuring that the voices of these families are heard

and that the rights of former players are upheld in

accordance with the principles of fairness, justice, and

respect for their contributions to the game.

SUMMARY OF THE ARGUMENT

The U.S. Circuit Courts of Appeal currently

apply different standards of review to ERISA

procedural violations, leading to inconsistent

outcomes based on jurisdiction. The Supreme Court

has established that the “de novo” standard applies to

ERISA benefit denial challenges unless the plan

grants discretionary authority, in which case “abuse

of discretion” applies. However, the Court has not

clarified the standard for procedural violations,

causing disparities among circuits. For instance, the

Fifth Circuit uses a “substantial compliance”

standard, while the Second, Ninth, and Eleventh

Circuits apply a heightened or de novo review in

certain cases. Other circuits vary in their approach,

often considering procedural violations as a factor in

applying abuse of discretion review. Contrary to this

Court’s previous guidance, this inconsistency creates

uncertainty for claimants and plan administrators,

necessitating a Court ruling to establish the standard

of review for procedural violations to ensure fairness

and uniform protection.

The Fifth Circuit’s decision in this case did not

honor ERISA’s purpose of protecting employees and

beneficiaries in employee benefit plans. The court

failed to ensure that the claimant was afforded a full

and fair review as required by ERISA, thereby

undermining the statutory safeguards designed to

protect plan participants.

ARGUMENT

1. The Court Should Grant the Petition to Resolve

the Inconsistent Application of the Standard of

Review to ERISA Procedural Violations by the

U.S. Circuit Courts of Appeal.

Currently, U.S. Circuit Courts of Appeal apply

different standards of review to ERISA procedural

violations, leading to inconsistent outcomes

depending on the jurisdiction. This Court has

previously held that the de novo standard of review

applies to a challenge to a denial of benefits under the

Employee Retirement Income Security Act (“ERISA”)

unless the plan document grants the administrator or

fiduciary discretionary authority to interpret plan

terms or determine benefits, in which case a

reviewing court should apply the “abuse of discretion”

standard. Firestone Tire & Rubber Co. v. Bruch, 489

U.S. 101, 115 (1989). This is true even if there is a

conflict of interest of the plan administrator, though

the conflict should be considered a factor in

determining the appropriate standard of review.

Metropolitan Life Insurance Company v. Glenn, 554

U.S. 105, 115-16 (2008) (discussing Firestone, 489

U.S. at 115). The Court also clarified that deference is

given to a plan administrator’s reasonable

interpretation of plan terms, even if a court has

previously determined that the administrator’s initial

interpretation was incorrect. Conkright v. Frommert,

559 U.S. 506, 509 (2010). However, the Court has not

resolved the question of which standard applies to

procedural violations of ERISA and related

regulations, 2 and the various U.S. Circuit Courts of

Appeal apply different standards, leaving claimants

in some circuits at a disadvantage.

A. The Fifth Circuit Applies the “Substantial

Compliance” Standard.

The Fifth Circuit applies a “substantial

compliance” standard, where minor procedural errors

that do not result in prejudice to the claimant do not

alter the deferential abuse of discretion standard of

review. Lafleur v. Louisiana Health Service &

Indemnity Co., 563 F.3d 148, 154 (5th Cir. 2009). As

both the Fifth Circuit and the district court noted in

their opinions below, in the Fifth Circuit, a plan

administrator abuses its discretion if its decision is

not based on evidence, even if disputable, that clearly

supports the basis for its denial. George v. Reliance

Standard Life Ins. Co., 776 F.3d 349, 352 (5th Cir.

2015). The administrator’s decision need only be

supported by “substantial evidence,” which is more

than a scintilla, less than a preponderance, and is

such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion. Atkins v.

2 29 U.S.C. § 1133; 29 C.F.R. § 2560.503-1

Bert Bell/Pete Rozelle NFL Player Ret. Plan, 694 F.3d

557, 566 (5th Cir. 2012) (quotation marks omitted). If

there is a rational connection between the facts and

the decision, the decision is not arbitrary. Id.

B. The Second, Ninth, and Eleventh Circuits

Apply a Heightened Standard of Review to

ERISA Procedural Violations.

These courts are more likely to shift from the

typically deferential “abuse of discretion” standard to

de novo review under certain circumstances.

The Second Circuit requires strict adherence to

ERISA procedural regulations. In Halo v. Yale Health

Plan, Dir. of Benefits & Records Yale Univ., 819 F.3d

42, 58 (2d Cir. 2016), the court held that failure to

strictly comply with ERISA’s claims procedure

regulations generally results in de novo review unless

the plan can show the noncompliance was inadvertent

and harmless.

The Ninth Circuit has held that flagrant

violations of ERISA procedural requirements can

alter the standard of review from abuse of discretion

to de novo. In Abatie v. Alta Health & Life Ins. Co.,

458 F.3d 955, 971-72 (9th Cir. 2006), the court held

that wholesale and flagrant procedural violations

could lead to de novo review, removing the usual

deference afforded to the plan administrator’s

decisions.

The Eleventh Circuit applies de novo review for

all procedural violations, regardless of their severity.

In Boysen v. Illinois Tool Works, Inc., 767 F. App’x

799, 806 (11th Cir. 2019), the court ruled that

compliance with ERISA’s procedural requirements is

a question of law, subject to de novo review, rather

than deferring to the plan administrator’s decisions.

These circuits are generally more protective of

claimants’ rights, ensuring that any significant

deviation from ERISA’s procedural requirements by

plan administrators can lead to a full reevaluation of

the claim without the usual deference to the

administrator’s decision.

C. Other Circuits Apply the Abuse of

Discretion or Arbitrary and Capricious

Standard and May Reduce the Level of

Deference if Procedural Violations are

Significant.

These Circuits either follow the substantial

compliance standard or consider procedural

violations as a factor to determine whether a plan

administrator has abused its discretion.

The Third Circuit generally applies an

arbitrary and capricious standard of review but may

reduce the level of deference if there are procedural

irregularities, which the court considers as factors in

its review. See, e.g., Miller v. American Airlines, Inc.,

632 F.3d 837 (3d Cir. 2011) (stating procedural factors

must be weighed to determine if an administrator’s

conclusion was arbitrary and capricious).

The Fourth Circuit maintains the abuse of

discretion standard but weighs procedural violations

as a factor to consider in determining whether a plan

administrator’s decision was reasonable. See, e.g.,

Solomon v. Bert Bell/Pete Rozelle NFL Player Ret.

Plan, 860 F.3d 259, 265 (4th Cir. 2017) (citing Booth

v. Wal–Mart Stores, Inc. Associates Health & Welfare

Plan, 201 F.3d 335 (4th Cir. 2000)).

The Seventh Circuit applies arbitrary and

capricious review even when there are procedural

errors, which are factors to consider in determining

whether a plan administrator’s decision was

reasonable. See, e.g., Weitzenkamp v. Unum Life Ins.

Co. of Am., 661 F.3d 323, 329 n. 3 (7th Cir. 2011)

(stating the administrator’s conflict of interest and

the procedure afforded the parties are factors to be

considered in determining whether the plan

administrator’s decision was

arbitrary and

capricious).

The Eighth Circuit applies the arbitrary and

capricious standard and considers procedural

violations when determining whether a plan

administrator abused its discretion. See, e.g.,

McIntyre v. Reliance Stand. Life Ins. Co., 73 F.4th

993, 1000 (8th Cir. 2023). (“We weigh heavily any

procedural irregularity that leaves us ‘with serious

doubts as to whether the result reached was the

product of an arbitrary decision or the plan

administrator’s whim.’” Buttram v. Cent. States, Se.

& Sw. Areas Health & Welfare Fund, 76 F.3d 896, 900

(8th Cir. 1996)).

The Tenth Circuit reviews ERISA procedural

violations for abuse of discretion unless the plan

administrator failed to substantially comply with

ERISA procedural requirements. See, e.g., M.K. v.

Visa Cigna Network POS Plan, 628 Fed. Appx. 585,

591 (10th Cir. 2015) (citing LaAsmar v. Phelps Dodge

Corp. Life, Accidental Death & Dismemberment &

Dependent Life Ins. Plan, 605 F.3d 789, 796 (10th Cir.

2010); Hancock v. Metro. Life Ins. Co., 590 F.3d 1141,

1152 (10th Cir. 2009)) (stating procedural

irregularities may require application of the same de

novo review that would be required if discretion was

not vested in the plan administrator). A plan

administrator has substantially complied with

ERISA if the procedural irregularity was

inconsequential and part of an on-going, good-faith

exchange of information between the administrator

and the claimant. LaAsmar, 605 F.3d at 800 (citations

omitted).

The D.C. Circuit has failed to recognize a

“procedural irregularity exception” to deferential

review (declining to apply de novo review despite

procedure violations by plan administrator). James v.

Intl. Painters and Allied Trades Indus. Pension Plan,

738 F.3d 282, 283 (D.C. Cir. 2013).

D. The First and Sixth Circuits Do Not Follow

the Other Circuits’ Varied Approaches.

The First Circuit has declined to weigh in on

whether procedural violations require de novo review

or should instead be reviewed under the abuse of

discretion standard for substantial compliance with

ERISA, acknowledging, “Those are complicated

questions on which the circuits have divided.” Bard v.

Boston Ship. Ass’n, 471 F.3d 229, 236 (1st Cir. 2006)

(citing Nichols v. Prudential Ins. Co. of Am., 406 F.3d

98, 106–10 (2d Cir. 2005).

The Sixth Circuit reviews procedural questions

de novo for substantial compliance with ERISA. See,

e.g., Wenner v. Sun Life Assur. Co. of Canada, 482

F.3d 878, 881-82 (6th Cir. 2007) (the legal question of

whether a denial of claim benefits complied with

ERISA’s notice requirements is reviewed de novo).

The “substantial compliance” test “considers all

communications between an administrator and plan

participant to determine whether the information

provided was sufficient under the circumstances.” Id.

at 882.

The inconsistent application of the standard of

review across the U.S. Circuit Courts of Appeal in

ERISA procedural violation cases reflects a broader

debate over the balance between judicial deference

and ensuring fairness in the administrative process.

This variability creates uncertainty for claimants and

plan administrators, underscoring the need for

clearer guidance from the Court on how procedural

violations should impact the standard of review in

ERISA cases. In Conkright, this Court underscored

the need for uniformity:

Firestone deference serves the interest

of uniformity, helping to avoid a

patchwork of different interpretations of

a plan, like the one here, that covers

employees in different jurisdictions—a

result

that

“would

introduce

considerable inefficiencies in benefit

program operation, which might lead

those employers with existing plans to

reduce benefits, and those without such

plans to refrain from adopting them.”

Fort Halifax Packing Co. v. Coyne, 482

U.S. 1, 11 (1987). Indeed, a group of

prominent actuaries tells us that it is

impossible even to determine whether

an ERISA plan is solvent (a duty

imposed on actuaries by federal law, see

29 U.S.C. §§ 1023(a)(4), (d)) if the plan is

interpreted to mean different things in

different places. See Brief for Chief

Actuaries as Amici Curiae 5–11.

559 U.S. at 517–18. Yet, inconsistency, rather

than uniformity, is precisely the state of ERISA

review now, as evidenced by the differing approaches

to the standard of review for procedural violations of

ERISA taken by the various circuit courts. A Supreme

Court ruling establishing a heightened standard of

review would harmonize these disparities, ensuring

that all participants receive uniform protection

regardless of where their case is heard.

2. The Court Should Grant the Petition Because

the Fifth Circuit’s Opinion Does Not Honor

ERISA’s Stated Purposes.

ERISA was enacted to protect the interests of

employees and their beneficiaries in employee benefit

plans. 29 U.S.C. §§ 1001(b), 1104(a)(1). “These

procedural safeguards are at the foundation of

ERISA. Fiduciary compliance is essential to

upholding the administrative integrity of this

statutory scheme.” Thompson v. Life Ins. Co. of N.A.,

30 Fed. Appx. 160, 163 (4th Cir. 2002) (citations

omitted). The Fifth Circuit failed to honor these

purposes when it declined to consider whether Cloud

was afforded an opportunity for a full and fair review

of his claim, as required by ERISA.

CONCLUSION

The petition should be granted.

Respectfully submitted,