Opposition Brief — Orndorf v. Paul Revere Life Insurance

4

Dr. Gilbert did not address how the results of the 1993 MRI

impaired Orndorf from performing his occupation now, when

he was able to do so for two years after that test from 1993 to

1995. While Dr. Gilbert claimed Orndorf had “progressive

incapacitating back pain,” he failed to address that the

medical records reveal not only intermittent complaints and

treatment for back pain, but also that Orndorf had been

physically active. /d. Notably, Dr. Gilbert's letter only

recounts what Orndorf “says” about his physical limitations.

Paul Revere, after having its medical consultant review

the medical information submitted on appeal, including Dr.

Gilbert’s letter, concluded neither Orndorf’s back pain, neck

pain, ankle pain, nor hypertension made him totally disabled.

(A-14, 15). Agreeing with Paul Revere’s decision, the

district court found Orndorf’s disability claim due to physical

limitations “collapses under the weight of the Record.” (A-

95). Likewise, the First Circuit found that Orndorf simply

did not meet his burden of proving he was totally disabled due

to a physical limitation. (A-38).

While Orndort now claims review is necessary because he

was not permitted to take discovery or supplement the record

with additional evidence, he fails to inform this Court he was

given repeated opportunities by the district court to show

cause why discovery and supplementation of the record was

appropriate. On two occasions (an August 6, 2002 Order and

at the October 24, 2002 Rule 16 Conference) the district court

ordered Orndorf to identify the items with which he sought to

supplement the record and show good cause for any discovery

requested. (A-24). In response, Orndorf did not ask for

leave to take discovery. Instead, Orndorf simply stated he

wanted to file some “medical records concerning his

continuing disability, expert medical evidence concerning his

disability and vocational expert evidence concerning the

5

important duties of his occupation as a perfusionist.” Motion

of Jacob M. Orndorf to Submit Additional Evidence, Civ. Ac.

No. 02-30024-FHF (Nov. 15, 2002). Finding that despite

repeated instructions Orndorf failed to “list specifically and to

show good cause for each item of evidence [he] would like

added to the Record,” only “vaguely requests to supplement

the Record with ‘vocational evidence’ and ‘medical evidence

of a continuing disability’” and “generally fails to specify

what form this evidence will take or its necessity to the

Court’s review,” the district court denied Orndorf’s request

to supplement the record, but for a vocational report that

would provide more information regarding the occupational

duties of a perfusionist. (A-71, 72).

Having determined that it had a complete administrative

record for review, the district court held that the case could

be resolved on cross motions for summary judgment and

scheduled deadlines for briefing. Rather than file his motion

for summary judgment as directed by the Court, Orndorf filed

a motion where he sought leave to supplement the

administrative record with various medical records and a

medical examination, all of which were generated after Paul

Revere’s final decision. Orndorf also sought leave to conduct

discovery on whether:

Paul Revere fulfilled its fiduciary role in obtaining the

necessary information in order to make a proper

determination, whether the medical doctors and other

staff who assisted in compiling the record followed

proper procedure, whether the medical doctors and

other staff were properly educated and trained to do so

and whether they are qualified to render an expert

opinion via the record and at trial.

6 -

Motions of Jacob M. Orndorf for Reconsideration of the

Order of December 30, 2002 and for Leave to Submit

Additional Evidence for Discovery and to Postpone the Filing

of Cross Motion for Summary Judgment, 413, Civ. Ac. No.

02-30024-FHF (Jan. 28, 2003).

Orndorf never asked for discovery of whether Paul Revere

denied his claim for reasons beyond those set forth in the

administrative record. The district_court denied Orndort’s

motion, and subsequently found in Paul Revere’s favor after

considering cross motions for summary judgment.

REASONS. FOR DENYING PETITION

I. THE FIRST CIRCUIT’S DECISION IN ORNDORF

DOES NOT CONFLICT WITH THIS COURT’S

DECISION IN FIRESTONE.

Orndorf argues that the First Circuit’s decision is in

“direct conflict with the decision of this Court in Firestone

Tire and Rubber Company v. Bruch, 489 U.S. 101, 115

(1989),” because “the distinction between de novo review and

differential review established in Firestone has disappeared.”

See Pet. for Cert. at 4-5. This argument is an attempt to

create an issue where none exists.

In Firestone, this Court established that a denial of

benefits under 29 U.S.C. §1132(a)(1)(B) is to be reviewed

under a de novo standard unless the benefit plan grants

discretion to the plan administrator. Firestone, 489 U.S. at

115. A deferential standard of review is appropriate when the

plan grants a plan fiduciary discretion to interpret the terms

of the plan and render a benefit decision. /d. It is undisputed

no such language exists in Orndort’s Policy. Therefore, both

7

the district court and the First Circuit subjected Paul Revere’s

decision to de novo review.

The First Circuit clearly distinguishes between de novo

review and arbitrary and capricious review. Under arbitrary

and capricious review, the Court gives deference to the plan

administrator and merely asks whether the decision was

reasonable. /d. at 111. However, as articulated by Orndorf

and correctly applied by the district court and the First

Circuit, under de novo review the correct standard is

“whether upon a full review of the administrative record, the

decision of the administrator was correct.” (A-19). The First

Circuit recognized that,

de novo review generally consists of the court’s

independent weighing of the facts and opinions in [the]

record to determine whether the claimant has met his

burden of showing he is disabled within the meaning

of the policy. [T]he court grants no deference to

administrators’ opinions or conclusions based on facts.

(A-20). Applying this correct standard of review, the district

court concluded that Orndorf’s disability claim due to physical

limitations “collapses under the weight of the Record.” (A-

95). Likewise, the First Circuit undertook another thorough

review of the extensive record and concluded that “Orndorf

does not meet the definition of disability by a physical

condition.” {(A-38). The First Circuit recognized the

difference between de novo and deferential review, and

correctly applied the de novo standard. There is no conflict

between the First Circuit’s decision and this Court’s ruling in

Firestone.

8

Il. THE FIRST CIRCUIT’S APPROACH TO ERISA

DECISIONS SUBJECT TO DE NOVO REVIEW IS

WIDELY FOLLOWED AMONG THE CIRCUITS.

A. The Methods Employed Among The Circuit

Courts of Appeal For Resolving ERISA

Decisions Under De Novo Review Are

Remarkably Similar.

Orndorf argues there is “confusion in the lower courts”

regarding the meaning of de novo review under Firestone.

See Pet. for Cert. at 7. To the contrary, the methods

employed among the Circuit Courts of Appeal for

adjudicating ERISA benefit determinations under de novo

review are remarkably similar.

Procedurally in Orndorf, the parties called their moving

papers cross motions for summary judgment. However, as

the First Circuit points out, “in an ERISA case where review

is based only on the administrative record before the plan

administrator and is an ultimate conclusion as to disability to

be drawn from the facts, summary judgment ts simply the

vehicle for deciding the issue.” (A-16) (emphasis added).

“This means the non-moving party ts not entitled to the usual

inferences in its favor.” (A-17).

As the First Circuit makes clear, and Orndorf seems to

ignore, this was not a case where additional evidence or

discovery was necessary to complete the record. As such, the

First Circuit did not extend its opinion to the proper method

for adjudicating ERISA decisions under those circumstances.

The First Circuit held that “where review is properly confined

to the administrative record,” summary judgment is the

proper “vehicle for deciding the issue.” (A-16).

9

This is precisely the method employed among the Circuit

Courts of Appeal under de novo review. In the Second

Circuit, this method of adjudication is called a “motion for

judgment on the administrative record” or “bench trial on the

papers.” Muller v. First Unum Life Ins. Co., 341 F.3d 119,

124 (2d. Cir. 2003). The Third Circuit calls it “a de novo

review of the record.” Luby v. Teamsters Health Welfare &

Pen. Tr., 944 F.2d 1176, 1185 (3d. Cir. 1991). In the Sixth

Circuit it is a “motion for entry of judgment.” Wilkins v.

Baptist Healthcare Sys., Inc., 150 F.3d 609, 619 (6th Cir.

1998). Regardless of the name, the method is the same. The

district court sits as the fact finder, reviewing the record and

making its own independent benefit determination. See

Keszenheimer v. Reliance Standard Life Ins. Co., 402 F.3d

504, 511 (Sth Cir. 2005) (reversing summary judgment for

claimant and entering summary judgment for insurer);

Williams v. Bell §. Telecomm. , 373 F.3d 1132, 1134, 1139

(11th Cir. 2004) (affirming grant of summary judgment and

holding that while application of arbitrary and capricious was

incorrect, even under de novo review there was more than

sufficient medical evidence to contradict the plaintiff's claim

that she was disabled as defined by the policy); Gallager v.

Reliance Standard Life Ins. Co., 305 F.3d 264, 270 (4th Cir.

2002) (entering summary judgment in favor of the insurer, the

court held that its job under de novo review was to determine

whether the proof of total disability submitted was objectively

satisfactory); Kearney v. Standard Ins. Co., 175 F.3d 1084,

1094 (9" Cir. 1999) (determining whether the plaintiff is

disabled within the terms of the policy by means of a bench

trial on the record).

Thus, the First Circuit’s determination that summary

judgment is the proper vehicle for resolving an ERISA

benefits case where de novo review applies, there is a

complete record and there is no dispute over plan terms is not

10

appreciably different than the methods used by the Second,

Third, Fourth, Fifth, Sixth, Ninth and Eleventh Circuits.

There is no “confusion” and there is no conflict that would

warrant the Court's review of this issue.

Orndorf cites four cases in support of his contention that

a conflict exists among the Circuit Courts of Appeal as to how

ERISA cases should be adjudicated under de novo review.

All four cases are easily distinguished. Orndorf cites

Herzberger v. Standard Ins. Co. , 205 F.3d 327, 332 (7th Cir.

2000), claiming that the Seventh Circuit requires a more

plenary review than the First Circuit gives in de novo cases.

However, Herzberger does nothing of the sort. /Herzberger

dealt with two district court decisions that granted summary

judgment to the insurer using an arbitrary and capricious

standard of review. Jd. at 329. The Seventh Circuit in

Herzberger found that the language in both plans was

insufficient to grant discretionary review. /d. As such, the

Seventh Circuit remanded the cases back to the district court

for review under the de novo standard. /d. at 333. This

Seventh Circuit decision makes no ruling as to how those

cases should be adjudicated under de novo review.

Orndorf also cites Kearney v. Standard Ins. Co. , 175 F.3d

1084 (9th Cir. 1999) in support of his claim that there is a

split regarding how cases should be adjudicated under de

novo review. However, there is no appreciable difference

between the trial on the administrative record utilized in the

Ninth Circuit and the way the First Circuit has determined it

should handle these cases.

Kearney held the summary judgment standard requiring

there be no genuine issue of material fact in dispute was

inapplicable in that case. /d. at 1094. The Ninth Circuit

suggests utilization of a bench trial on the record.

1]

“Testimony” in a trial on the record is “in the nature of

exhibits, in the nature of documents, which are routinely the

basis for findings of fact even though no one reads them

aloud.” /d. at 1094. A full trial de novo on new evidence

would undermine the policies behind ERISA and be

inconsistent with reviewing the administrator’s decision about

whether to grant the benefit. /d.

The means that suggests itself for accomplishing trial

of disputed facts while preserving the value of the

fiduciary review procedure, keeping costs and

premiums down, and minimizing diversion of benefit

money to litigation expense, is trial on the

administrative record, in cases where the trial court

does not find it necessary . . . to consider additional

evidence.

Id.

Therefore, the Ninth Circuit holds that a trial on the

record is merely a review of the administrative record with

the district court asking not whether there is a genuine issue

of material fact, but whether the claimant is disabled within

the meaning of the terms of the policy. /d. at 1095. This is

exactly the methodology employed by the First Circuit for

evaluating ERISA benefit determinations under de novo

review.

Ray v. Unum Life Ins. Co. of Am., 314 F.3d 482 (10th

Cir. 2002) likewise provides no support for Orndorf’s

argument that a conflict exists with respect to adjudication of

ERISA cases under de novo review. In Ray the Tenth Circuit

found the district court’s use of the arbitrary and capricious

standard of review was in error and therefore remanded to the

district court to apply the de novo standard of review. /d. at

12

487. Following the holding in //all v. Unum Life Ins. Co..,

300 F.3d 1197 (10th Cir. 2002),' the Tenth Circuit found that

remand was necessary because under the de novo standard of

review the district court could in its discretion consider

additional evidence that it felt was necessary whereas under

the arbitrary and capricious standard of review it could not.

Id. at 488. Ray does not state how the district court should

facilitate the adjudication of the de novo review.

Shaw v. Connecticut Gen. Life Ins. Co., 353 F.3d 1276,

1287 (11th Cir. 2003) also does not address how to adjudicate

an ERISA benefits decision under de novo review. Orndorf

argues that the Eleventh Circuit “expressly held that factual

conflicts defeat resolution by summary judgment and warrant

remand for a bench trial when the appropriate standard of

review is de novo.” See Pet. for Cert. at 7.

However, in Shaw the court did not determine whether the

record was complete but rather remanded the case to the

district court to allow the parties to present additional

evidence. After a thorough review of the record, the

Eleventh Circuit concluded the case could not be resolved on

summary judgment and remanded it for a bench trial where

“{t}he trial judge may then determine whether the plan

administrator's decision was ‘wrong and unreasonable’ with |

the benefit of a fuller record.” /d. at 1286. The court did not

define what was required for a “full record.” However, in a

' In Hali the Tenth Circuit held that the best way to implement

E:RISA’s purposes in this context is ordinarily to restrict de novo

review to the administrative record, but to allow the district court

to supplement the record when circumstances clearly establish that

additional evidence is necessary to conduct an adequate de novo

review of the benefit decision. /d. at 1202.

13

footnote the court does say de novo review permits the parties

to put before the district court additional evidence. /d. at n.6.

Shaw does not create a conflict between the Eleventh and

First Circuits. When no additional evidence or discovery is

needed, the Eleventh Circuit decides the case on the record.

For example, in Williams v. Bell S. Telecom. , 373 F.3d 1132

(11th Cir. 2004), the Eleventh Circuit affirmed the district

court’s grant of summary judgment. /d. at 1134, 1139. The

court held that while the district court’s application of the

arbitrary and capricious standard of review was incorrect,

even under de novo review there was more than sufficient

medical evidence to contradict the plaintiff's claim that she

was disabled. /d. at 1139.

Contrary to Orndorf’s assertion, there is no “inchoate

unease about the fairness or unfairness of ERISA litigation.”

See Pet. for Cert. at 8. In all of the Circuits that have

addressed the issue directly, where the court determines that

the administrative record is complete, the proper method of

adjudication is a de novo review of the administrator’s

decision without the need or expense of a full trial on the

merits.

When the court determines, in its discretion, that

additional evidence or discovery is warranted to complete the

record, such a review may not always be plausible.

However, that issue was not addressed by the First Circuit

and was certainly not the case in Orndorf. To accept the

position Orndorf advocates and allow an evidentiary hearing

or trial on the merits in every ERISA decision subject to de

novo review would require the court to start from scratch in

every case. This is a complete contradiction of the principles

behind ERISA and “the need for prompt and fair claims

14

settlement procedures.” See Pilot Life Ins. Co. v. Dedeaux,

481 U.S. 41, 54 (1987).

The First Circuit’s method for adjudicating ERISA benefit

decisions under de novo review does not shift the evidence

gathering authority or unfairly delegate “full and fair review

authority to a private insurance company with a financial

stake in the outcome” as Orndorf claims. See Pet. for Cert.

at 10. A plan administrator’s decision is just one step in the

process. Its decision is then reviewed de novo, without any

deference by the district court. As the First Circuit clearly

stated, de novo review “generally consists of the court's

independent weighing of the facts and opinions in that record

to determine whether the claimant has met his burden...” (A-

20).

As for evidence gathering, Orndorf was free to submit

whatever evidence he wanted during the claims process. He

was again given an opportunity to submit evidence in support

of his claim during the appeal. Any such submissions would

have been before the court for consideration. A claimant like

Orndorf does not lose his due process rights just because the

court looks at the administrative record in making its

determination, when the claimant had at least two

opportunities to include all information he wanted considered

in the administrative record.

Furthermore, the district court gave Orndorf an additional

opportunity to show cause why the record needed to be

supplemented or why additional discovery was required and

he failed to do so. (A-71-72). When presented with all of

these opportunities to include evidence in the administrative

record, there is no basis to argue a due process violation.

15

Finally, that there is conflicting medical evidence does not

preclude resolution based solely on the record. As the First

Circuit stated, summary judgment is merely the vehicle by

which this type of case is decided. (A-16). Neither the

district court nor the First Circuit held there were no issues of

disputed fact. Courts have the ability to weigh the evidence

and make an independent determination of disability. This is

precisely what the district court and the First Circuit did.

Both courts evaluated the one piece of conflicting medical

evidence, a letter from Dr. Gilbert, in conjunction with the

rest of the evidence and-determined Orndorf did not meet the

definition of disability as provided in the Policy.

There is simply no basis for Orndorf to argue that the

First Circuit’s method of adjudicating ERISA benefit

decisions under de novo review is improper or conflicting

with decisions of other courts.

B. There Is No Discernable Conflict Between The

Circuits As To The Availability Of Discovery

Or Supplementing The Administrative Record

Under De Novo Review.

There is no real conflict between the Circuit Courts of

Appeal regarding the availability of discovery and

supplementing the record on de novo review. Any perceived

conflict is “more apparent than real.” See Bunting v. Mellen,

541 U.S. 1019, 1019 (2004) (denying petition for certiorari

where the apparent conflict among the Circuit Courts of

Appeal was easily distinguished on factual differences). The

general rule among the Circuits is that evidence is limited to

the administrative record and that discovery is by necessary -

implication also limited; whether supplemental evidence is

admissible and whether discovery will be allowed is a matter

that requires each court to consider the unique facts of the

16

— case before it. This is the holding of the First Circuit in the

present case, and it is also the holding of the other_Circuit

Courts of Appeal that have considered the issue.

Specifically, the First Circuit held that good cause must be

shown before a court should exercise its discretion to allow

discovery or record supplementation of an ERISA case under

de novo review. “Whether evidence is admissible turns on

the nature of the challenge to the decision; the answer to the

question-is not likely to turn on whether the standard of

judicial review is de novo or arbitrary and capricious.” (A-

22). The First Circuit does not rule, as Orndorf argues, that

the review is always limited to the record or that discovery is

never available. To the contrary, the First Circuit recognizes

a court's ability to allow these measures, but specifically finds

that Orndorf failed to show good cause and therefore no

discovery or supplementation was allowed in this case. (A-23-

24). This analysis is factually determinative and must be done

on a case-by-case basis.

The other Circuit Courts of Appeal that have considered

this issue have reached a consensus that de novo review

aah generally is limited to the administrative record and discovery

is denied, absent a showing that supplemental evidence ts

necessary to conduct an adequate de novo review. Orndorf

maintains that Shaw v. Connecticut General Life Ins. Co. , 353

F.3d 1276 (11th Cir. 2003), Ray v. Unum Life Ins. Co. of

Am. , 314 F.3d 482 (10th Cir. 2002), and Kearney v. Standard

ins. Co., 175 F.3d 1084 (9th Cir. 1999) hold otherwise, but

17

he misconstrues the holdings of those cases.’

In Shaw, the Eleventh Circuit stated in a footnote that de

novo review generally permits parties to submit evidence

“beyond that which was presented to the administrator at the

time the denial was made.” Shaw, 353 F.3d at 1284 n.6,

citing Moon v. Am. Home Assur. Co., 888 F.2d 86, 89 (11th

Cir. 1989) (summarily stating that claimant in that case,

where de novo review was applied, was entitled to submit

supplemental evidence). The holdings in Shaw and Moon are

particular to the facts of those cases, and are not in conflict

with the First Circuit’s decision.’ The First Circuit did not

hold that the administrative record may never be

supplemented by additional evidence. Rather, the First

Circuit held that whether supplemental evidence outside the

administrative record may be submitted depends upon the

nature of the claim, and whether the claimant can establish

supplementation is necessary. (A-22) (“{w]hether

2 Orndorf also claims the First Circuit’s decision is in conflict

with Firestone Tire & Rubber v. Bruch, 489 U.S. 101 (1989) and

Herzberger v. Standard Ins. Co., 205 ¥.3d 327 (7th Cir. 2000).

See Part I and Part [1, B respectively for a discussion of these cases.

> Furthermore, to the extent that Shaw addressed this issue, it did

sO in dicta contained in a footnote. Shaw, 353 F.3d at 1284 n.6.

As to Moon, the dispute there involved whether the claimant's

decedent was indeed an “officer” of his company and whether he

had in fact been traveling on business. See Moon, 888 F.2d at 87.

As to such extrinsic matters, the First Circuit in the present case

recognized that supplemental evidence may be necessary in order

for a court to conduct an adequate de novo review. (A-23)

(“evidence may be relevant to explain a key item, such as the duties

of the claimant’s position, if that was omitted from the

administrative record”).

18

[supplemental] evidence is admissible turns_on the nature of

the challenge to the decision”).

Similarly, the Tenth Circuit’s decision in Ray does not

conflict with the First Circuit's holding. Orndorf accurately

quotes Ray as stating de novo review allows “the district court

to consider such additional evidence as in its discretion it

finds necessary for adequate de novo review....” Ray, 314

F.3d at 487 (emphasis added). However, this language is a

qualifier to the general rule (which Orndorf conveniently

omitted from the sentence), which provides that “the best way

to implement ERISA’s purposes in this context is ordinarily

to restrict de novo review to the administrative record....” Id.

The holding in Ray is easily harmonized with the First

Circuit’s decision, as the First Circuit noted that “|t}here may

be times when it is appropriate for courts to hear new

evidence” when conducting a de novo review of a plan

administrator’s decision. (A-23).

Finally , Orndorf contends that the Ninth Circuit's decision

in Kearney is illustrative of the “confusion” in the lower

courts regarding this matter. See Pet. for Cert. at 7.

However, there is nothing confusing about the Kearney

decision. Kearney holds that review of a plan administrator’s

decision, on both de novo and discretionary review, generally

is limited to the administrative record, but that supplemental

evidence is admissible if necessary to conduct an adequate de

novo review. Kearney, 175 F.3d at 1090. Again, this is in

perfect harmony with the decision of the First Circuit, as well

as the decisions of other Circuit Courts of Appeal that have

considered the issue. See Krizek v. Cigna Group Ins., 345

F.3d 91, 98 (2d Cir. 2003) (court should not exercise its

discretion to allow supplemental evidence unless claimant can

demonstrate good cause); Vega v. Nat'l Life Ins. Servs. dne.,

188 F.3d 287, 299 (Sth Cir. 1999) (when conducting de novo

19

review, the district court is generally “constrained to the

evidence before the plan administrator” with certain

exceptions, such as evidence related to interpreting the plan

or explaining medical terms and procedures); Brown v. Seitz

Foods, 140 F.3d 1198, 1200 (8th Cir. 1998) (discouraging

admission of supplemental evidence under de novo review in

order to “ensure expeditious judicial review of ERISA benefit

decisions and to keep district courts from becoming substitute

plan administrators,” but allowing such supplemental

evidence only where necessary for adequate de novo review);

Casey v. Uddenholm, 32 F.3d 1094, 1098-1099 & n.4 (7th

Cir. 1994) (holding the district court has discretion either to

review _only administrative record or admit additional

evidence where necessary for an adequate de novo review of

the plan administrator’s decision); Quesinberry v. Life Ins.

Co. of N. Am., 987 F.2d 1017, 1025 (4th Cir. 1993) (“The

district court should exercise its discretion [to receive

additional evidence] only when circumstances clearly establish

that additional evidence is necessary to conduct an adequate

review of the benefit decision.”); Luby, 944 F.2d at 1184-85

(holding additional evidence admissible under de novo

review, but noting that “[i]f the record on review is

sufficiently developed, the district court may, in its discretion,

merely conduct a de novo review of the record of the

administrator’s decision, making its own independent benefit

determination”); Perry v. Simiplicity Eng’g, 900 F.2d 963,

966 (6th Cir. 1990) (holding that, with certain exceptions,

“the de novo review required by [Firestone v.] Bruch is a de

novo review of the record before the administrator or

fiduciary....”).

Likewise, the First Circuit’s decision is not contrary to the

Federal Rules of Civil Procedure. Orndorf argues that under

the Federal Rules of Civil Procedure he has a right to conduct

discovery and any limitation of that right is in error under de

20

novo review. See Pet. for Cert. at9. However, Orndorf fails

to point out that the district court gave him an opportunity to

show what discovery he needed and why. (A-71). At first he

indicated that he did not want discovery. Later he requested

discovery that was completely apparent from the record. The

district court evaluated Orndorf’s requests and concluded that

he failed to show good cause. /d. Contrary to Orndorf’s

assertion, he had every opportunity to show why discovery

was necessary and he failed to do so. He cannot now claim

any error in the district court’s decision not to allow

discovery.

Moreover, the district court did allow Orndorf to

supplement the record with an additional document showing

an occupational description, but refused to supplement the

record with medical records that could have been submitted

to Paul Revere but were not, or medical evidence created

after the claim was closed. (A-71-72). Specifically, the

district court evaluated the evidence Orndorf wished to add

and determined what evidence it felt was necessary to

complete the record. /d.

In upholding the district court’s decision, the First Circuit

held that to allow the evidence Orndorf proposed to

supplement the record would have been in error and would

“offend interests of finality and exhaustion of administrative

procedures required by ERISA” because Orndorf had ample

opportunity to present evidence to the administrator during his

Claim, as well as his two appellate reviews. (A-21). Orndorf

cannot argue he was denied any right to supplement where the

court reviewed the evidence he wished to add and made an

independent determination based on the facts of this case as

to what was needed to complete the record.

21

Ti.THERE IS NO REASON TO CONSIDER A

SETTLEMENT AGREEMENT INVOLVING PAUL

REVERE AS A_ BASIS FOR GRANTING

CERTIORARI.

This Court should not consider a settlement agreement

involving Paul Revere created long after the final

administrative decision. This settlement agreement is

mentioned by Orndorf, and included in his Appendix (A-39-

69), as evidence that he should have been permitted to

conduct discovery and as the basis for granting certiorari. As

he states, “[iJt turns out that during the course of Orndorf’s

litigation the U.S. Department of Labor...[was] conducting an

extensive investigation of UnumProvident’s claims practices.”

See Pet. for Cert. at 11. This settlement agreement is not a

sufficient reason for this Court to review this case.

Orndorf waived this argument by his failure to raise it in

the lower court. It is weli-established that “[w]here issues are

ncither raised before nor considered by the Court of Appeals,

this Court will not ordinarily consider them.” Adickes v. S.H.

Kress & Co., 398 U.S. 144, 147 (1970), citing Lawn vy.

United States, 355 U.S. 339, 362-366, n.16 (1958); Husty v.

United States, 282 U.S. 694, 701-702 (1931); Duignan v.

United States, 274 U.S. 195, 200 (1927). Accord Tacon vy.

Arizona, 410 U.S. 351, 352 (1973) (“We cannot decide issues

raised for the first time here.”).

Orndorf cannot seek Supreme Court review, and eventual

discovery in an already decided case, based on what “turns

out” to have happened. To allow such a result would wreak

havoc on finality in litigation, as well as ERISA’s goal of

expeditious judicial review of benefit decisions.

22

The fact that an investigation was conducted by

administrative agencies and a settlement agreement reached 1s

simply not relevant to Orndorf’s claim he was wrongfully

denied benefits. The district court and the First Circuit both

conducted a full and fair de novo review of Paul Revere’s

decision to deny Orndorf disability benefits. The existence of

a subsequent settlement agreement has no effect on the scope

of review to which Orndorf was entitled at the district court,

and which he in fact received.

Finally, it is noted that the district court gave Orndorf the

Opportunity to conduct discovery. He initially declined to

conduct discovery. Later, Orndorf asked for discovery on

issues apparent in the administrative record and not designed

at all to uncover the information he now claims discovery

would have provided access. The district court determined

that Orndorf failed to establish with any specificity why he

required discovery. (A-71) (First Circuit noting that “[t}he

district court invited Orndorf to make a more specific showing

of the pertinence of the request, but he did not”); (A-24)

(district court denied Orndorf’s request for discovery and to

supplement record because “in his vagueness he has failed to

make the required showing of ‘good cause’”). Orndorf cannot

now complain that he should have been granted discovery

despite his failure to articulate good reason for that discovery,

by pointing to a later occurring event that has no relevance to

the district court’s de novo review of his benefits decision.

23

CONCLUSION

For all the foregoing reasons, the Petition for Writ of

Certiorart should be denied.

Respectfully submitted

Richard C. Van Nostrand

Counsel of Record

Joan O. Vorster

Mirick, O’Connell, DeMallie & Lougee, LLP

100 Front Street

Worcester, MA 01608

(508) 791-8500

Counsel for Respondent