# Opposition Brief — Orndorf v. Paul Revere Life Insurance

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0073%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2005
- **Citation:** 546 U.S. 937

## Text

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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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0073%3A3. Public record. Not legal advice.