Oliver v. Aetna Life Insurance Company

Filing 52

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 10/27/2014. (JLC)

FILED
2014 Oct-27 PM 04:16
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
GREG OLIVER,
Plaintiff,
v.
AETNA LIFE INSURANCE
COMPANY, et al.,
Defendants.

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) Case No.: 4:13-CV-1947-VEH
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MEMORANDUM OPINION
I.

INTRODUCTION AND PROCEDURAL HISTORY
Plaintiff Gregory Oliver (“Mr. Oliver”), a former employee of Federal Express

Corporation (“FedEx”), initiated this employee benefits case in the Circuit Court of
Etowah County, Alabama, on September 11, 2013. (Doc. 1-1 at 4).1 On October 22,
2013, Defendant Aetna Life Insurance Company (“Aetna”) removed the lawsuit to
this court on the basis of federal question jurisdiction under the Employee Retirement
Income Security Act (“ERISA”) and the doctrine of complete preemption. (Doc. 1 at
2-3 ¶¶ 6, 7). On November 26, 2013, Mr. Oliver filed an amended complaint which

1

All page references to Doc. 1-1 correspond with the court’s CM/ECF numbering system.

added Federal Express Corporation Long Term Disability Plan (the “FedEx Plan”)
as a co-defendant to his lawsuit. (Doc. 10 at 1).
Currently pending before the court are the six following contested motions:
(1)

Mr. Oliver’s Motion for Summary Judgment on Appropriate Standard

of Review (Doc. 20) (the “SOR Motion”) filed on June 13, 2014;
(2)

Mr. Oliver’s Motion for Judgment for Total Disability (Doc. 28) (the

“Disability Motion”) filed on July 3, 2014;
(3)

Defendants’ Motion For Summary Judgment (Doc. 31) (the “Cross

Disability Motion”) filed on July 3, 2014;
(4)

Mr. Oliver’s Motion To Add Documents to the Claim File (Doc. 25) (the

“Motion To Add”) filed on July 3, 2014;
(5)

Mr. Oliver’s Motion To Strike (Doc. 40) (the “Strike Motion”) filed on

July 3, 2014; and
(6)

Mr. Oliver’s Motion To Compel Log of Omitted Documents from the

Administrative Record (Doc. 49) (the “Compel Motion”) filed on August 29, 2014.
The court has studied all these filings as well as the parties’ respective
supporting and opposing materials. (Docs. 23, 26-27, 29-30, 32-39, 41-44, 51). For
the reasons explained below, (1) Mr. Oliver’s SOR Motion is due to be denied; (2)
2

Mr. Oliver’s Disability Motion is due to be denied; (3) Defendants’ Cross Disability
Motion is due to be granted; (4) Mr. Oliver’s Motion To Add is due to be denied and
alternatively is due to be termed as moot; (5) Mr. Oliver’s Strike Motion is due to be
termed as moot; and (6) Mr. Oliver’s Compel Motion is due to be denied.
II.

FACTUAL BACKGROUND AND ADMINISTRATIVE HISTORY2
Mr. Oliver formerly worked as courier for FedEx. Mr. Oliver experienced an

on-the-job injury on August 15, 2009, and has the impairments of degenerative disc
disease and osteoarthritis in the left knee. Mr. Oliver submitted a disability claim
under the FedEx Plan, and received short-term disability benefits for the time period
of August 24, 2009, through February 21, 2010. (Doc. 23-1 at 2).3 Subsequently, Mr.
Oliver received long-term occupational disability benefits under the FedEx Plan for
the two-year period of February 22, 2010, through February 21, 2012. Id. This
provided Mr. Oliver with the maximum coverage for long-term occupational

2

Keeping in mind that when deciding a motion for summary judgment the court must view
the evidence and all factual inferences in the light most favorable to the party opposing the motion,
the court provides the following statement of facts. See Optimum Techs., Inc. v. Henkel Consumer
Adhesives, Inc., 496 F.3d 1231, 1241 (11th Cir. 2007) (observing that, in connection with summary
judgment, a court must review all facts and inferences in a light most favorable to the non-moving
party). This statement does not represent actual findings of fact. See In re Celotex Corp., 487 F.3d
1320, 1328 (11th Cir. 2007). Instead, the court has provided this statement simply to place the
court’s legal analysis in the context of this particular case or controversy.
3

All page references to Doc. 23-1 correspond with the court’s CM/ECF numbering system.
3

disability, as the FedEx Plan places a 24-month cap on receiving that type of benefit.
(Doc. 23-7 at 50; Doc. 23-1 at 2).
Prior to the exhaustion of his long-term occupational disability payments, on
August 25, 2011, Aetna sent Mr. Oliver a letter which explained the more demanding
definition of disability that applied to long-term benefits “beyond 24 months . . . .”
(Doc. 23-2 at 4).4 More specifically, that standard requires a claimant to show a
“complete inability . . . to engage in any compensable employment for twenty-five
hours per week.” (Doc. 23-1 at 2; Doc. 23-7 at 42).
Mr. Oliver sought to qualify for long-term total disability benefits to cover the
time period from February 22, 2012, to the present. (Doc. 23-1 at 2). This claim was
denied initially on January 12, 2012, and Mr. Oliver filed an appeal. Id. Subsequently,
on March 13, 2012, Linda Bizzarro (“Ms. Bizzarro”) sent a letter to Mr. Oliver on
behalf of the Aetna Appeal Review Committee (“AARC”) (Doc. 23-1 at 2-3),
notifying him that the AARC had denied his appeal on March 12, 2012, “because
there [wa]s a lack of significant objective findings to substantiate a claim under the
Plan for Total Disability.” (Doc. 23-1 at 3).
Before his long-term total disability claim was finally decided, Mr. Oliver

4

All page references to Doc. 23-2 correspond with the court’s CM/ECF numbering system.
4

received a favorable disability decision from the Social Security Administration
(“SSA”) on January 17, 2012 (Doc. 23-2 at 8-21), which concluded that Mr. Oliver
became disabled (within the meaning of the Social Security Act) on August15, 2009,
the same date as his job-related injury. Mr. Oliver contends that this SSA decision
satisfies the total disability standard under the FedEx Plan and that “[t]he medical
record reviewers were never provided [with a copy of it].” (Doc. 28 at 2).
The record reflects that Aetna received notice of Mr. Oliver’s favorable SSA
decision (indicating a retroactive benefit amount of $28,334.00) sent via facsimile on
February 28, 2012, by a nonparty entity named Allsup. (Doc. 23-2 at 23-32). Further,
the appeal denial letter expressly references the AARC’s consideration of Mr.
Oliver’s favorable SSA award. However, the AARC ultimately discounted its
evidentiary importance. Specifically, the AARC pointed out that “the criteria utilized
by the Social Security Administration for . . . disability awards are different from the
definition for Total Disability set forth in the Plan,” and underscored its “duty to
follow the terms of the Plan.” (Doc. 23-1 at 3).
III.

STANDARDS
A.

Summary Judgment

Summary judgment is proper only when there is no genuine issue of material
5

fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c).5 All reasonable doubts about the facts and all justifiable inferences are resolved
in favor of the nonmovant. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th
Cir. 1993).6 A dispute is genuine “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.”Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986).
“Once the moving party has properly supported its motion for summary
judgment, the burden shifts to the nonmoving party to ‘come forward with specific
facts showing that there is a genuine issue for trial.’” International Stamp Art, Inc. v.
U.S. Postal Service, 456 F.3d 1270, 1274 (11th Cir. 2006) (citing Matsushita Elec.
5

Although this matter is before the court on cross motions for summary judgment pursuant
to Rule 56, the Eleventh Circuit has expressed that, due to the peculiar standards of review for
ERISA cases, traditional Rule 56 practice may be unnecessary. See Doyle v. Liberty Life Assur. Co.,
542 F.3d 1352, 1363 n.5 (11th Cir. 2008). Other decisions rendered within this circuit have similarly
recognized that the summary judgment standard is not appropriate in ERISA cases when “the district
court sits more as an appellate tribunal than as a trial court.” Curran v. Kemper Nat. Servs. Inc., No.
04-14097, 2005 WL 894840, at *7 (11th Cir. Mar. 16, 2005) (quoting Leahy v. Raytheon Co., 315
F.3d 11, 17–18 (1st Cir. 2002)); see Ruple v. Hartford Life & Accident Ins. Co., 340 F. App’x 604,
611 (11th Cir. 2009) (“[The] typical summary judgment analysis does not apply to ERISA cases.”);
Providence v. Hartford Life & Accident Ins. Co., 357 F. Supp. 2d 1341, 1342 n.1 (M.D. Fla. 2005)
(“[T]he Court’s task is to review the benefit decision based on the administrative record available
to the decision maker at the time he or she made the decision.”).
6

Rule 56 was amended in 2007 in conjunction with a general overhaul of the Federal Rules
of Civil Procedure. The Advisory Committee was careful to note, however, that the changes “are
intended to be stylistic only.” Adv. Comm. Notes to Fed. R. Civ. P. 56 (2007 Amends.) (emphasis
supplied). Consequently, cases interpreting the previous version of Rule 56 are equally applicable
to the revised version.
6

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct. 1348, 1356, 89 L.
Ed. 2d 538 (1986)). Although there are cross motions for summary judgment, each
side must still establish the lack of genuine issues of material fact and that it is
entitled to judgment as a matter of law. See Chambers & Co. v. Equitable Life Assur.
Soc. of the U.S., 224 F.2d 338, 345 (5th Cir. 1955) (“Both parties filed and argued
motions for summary judgment, but this does not warrant the granting of either
motion if the record reflects a genuine issue of fact.”).7 The court will consider each
motion independently, and in accordance with the Rule 56 standard. See United States
v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 994, 8 L. Ed. 2d 176 (1962) (“On
summary judgment the inferences to be drawn from the underlying facts contained
in such materials must be viewed in the light most favorable to the party opposing the
motion.”). “The fact that both parties simultaneously are arguing that there is no
genuine issue of fact, however, does not establish that a trial is unnecessary thereby
empowering the court to enter judgment as it sees fit.” Wright, Miller & Kane, Fed.
Practice & Proc. § 2720, at 327-28 (3d ed. 1998).
Finally “[i]f the movant bears the burden of proof on an issue, because, as a

7

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down
prior to October 1, 1981.
7

defendant, it is asserting an affirmative defense, it must establish that there is no
genuine issue of material fact as to any element of that defense.” International Stamp,
456 F.3d at 1274 (citing Martin v. Alamo Community College Dist., 353 F.3d 409,
412 (5th Cir. 2003)).
B.

Discovery Rulings

Regarding discovery rulings:
A district court has wide discretion in discovery matters and our review
is “accordingly deferential.” Harbert Int’l, Inc. v. James, 157 F.3d 1271,
1280 (11th Cir. 1998). A court abuses its discretion if it makes a “clear
error of judgment” or applies an incorrect legal standard. Carpenter v.
Mohawk Indus., Inc., 541 F.3d 1048, 1055 (11th Cir. 2008) (per curiam).
Moreover, a district court’s denial of additional discovery must result in
substantial harm to a party’s case in order to establish an abuse of
discretion. See Leigh v. Warner Brothers, Inc., 212 F.3d 1210, 1219
(11th Cir. 2000).
Bradley v. King, 556 F.3d 1225, 1229 (11th Cir. 2009); accord Iraola & CIA, S.A. v.
Kimberly-Clark Corp., 325 F.3d 1274, 1286 (11th Cir. 2003) (“Moreover, we will not
overturn discovery rulings ‘unless it is shown that the District Court’s ruling resulted
in substantial harm to the appellant’s case.’” (quoting Carmical v. Bell Helicopter
Textron, Inc., 117 F.3d 490, 493 (11th Cir. 1997))).
C.

Evidentiary Rulings

“All evidentiary decisions are reviewed under an abuse-of-discretion standard.”
8

See, e.g., General Elec. Co. v. Joiner, 522 U.S. 136, 141, 118 S. Ct. 512, 517, 139 L.
Ed. 2d 508 (1997). “An abuse of discretion can occur where the district court applies
the wrong law, follows the wrong procedure, bases its decision on clearly erroneous
facts, or commits a clear error in judgment.” United States v. Estelan, 156 F. App’x
185, 196 (11th Cir. 2005) (citing United States v. Brown, 415 F.3d 1257, 1266 (11th
Cir. 2005)).
Moreover, as the Eleventh Circuit has made clear, not every incorrect
evidentiary ruling constitutes reversible error:
Auto-Owners’ second argument is that it is entitled to a new trial
on the basis of what it describes as a number of erroneous evidentiary
rulings by the district court. Evidentiary rulings are also reviewed under
an abuse of discretion standard. Finch v. City of Vernon, 877 F.2d 1497,
1504 (11th Cir. 1989). Moreover, even if Auto-Owners can show that
certain errors were committed, the errors must have affected “substantial
rights” in order to provide the basis for a new trial. See Fed. R. Evid.
103(a). “Error in the admission or exclusion of evidence is harmless if
it does not affect the substantial rights of the parties.” Perry, 734 F.2d
at 1446. See also Allstate Insurance Co. v. James, 845 F.2d 315, 319
(11th Cir. 1988).
Haygood v. Auto-Owners Ins. Co., 995 F.2d 1512, 1515 (11th Cir. 1993). Therefore,
even the existence of many evidentiary errors does not guarantee the party appealing
a new trial. Instead, such erroneous rulings by a district court must “affect the
substantial rights of the parties” for reversible error to occur.
9

IV.

ANALYSIS
A.

Overriding Principles Governing ERISA Benefits

ERISA does not contain a standard of review for actions brought under §
1132(a)(1)(B) challenging benefit eligibility determinations. Firestone Tire & Rubber
Co. v. Bruch, 489 U.S. 101, 108-09, 109 S. Ct. 948, 953 (1989) (“Although it is a
‘comprehensive and reticulated statute,’ ERISA does not set out the appropriate
standard of review for actions . . . challenging benefit eligibility determinations.”).8
Moreover, the case law that has developed over time governing such standards has
significantly evolved. A history of the transformation of these principles is useful to
understanding the presently applicable framework for evaluating § 1132(a)(1)(B)
ERISA challenges.
In Firestone, the Supreme Court initially established three distinct standards
for courts to employ when reviewing an ERISA plan administrator’s benefits

8

ERISA provides “a panoply of remedial devices” for participants and beneficiaries of
qualifying benefit plans. Mass. Mutual Life Ins. Co. v. Russell, 473 U.S. 134, 146 (1985). Mr. Oliver
asserts that he is entitled to certain long-term disability benefits as a participant under the FedEx Plan
based on § 1132(a)(1)(B). “That provision allows a suit to recover benefits due under the plan, to
enforce rights under the terms of the plan, and to obtain a declaratory judgment of future entitlement
to benefits under the provisions of the plan contract.” Firestone Tire, 489 U.S. at 108. The following
analysis, therefore, is limited to the appropriate standard of review in § 1132(a)(1)(B) lawsuits
challenging benefit denials based on plan interpretations; the court does not address the appropriate
standard of review for actions arising under any other remedial provisions of ERISA.
10

decision: “(1) de novo where the plan does not grant the administrator discretion; (2)
arbitrary and capricious where the plan grants the administrator discretion; and (3)
heightened arbitrary and capricious where the plan grants the administrator discretion
and the administrator has a conflict of interest.” Capone v. Aetna Life Ins. Co., 592
F.3d 1189, 1195 (11th Cir. 2010) (citing Buckley v. Metro. Life, 115 F.3d 936, 939
(11th Cir. 1997) (discussing Firestone, 489 U.S. at 115)). In Williams v. Bellsouth
Telecomms., Inc., 373 F.3d 1132, 1137 (11th Cir. 2004), overruled on other grounds
by Doyle v. Liberty Life Assur. Co. of Boston, 542 F.3d 1352 (11th Cir. 2008), the
Eleventh Circuit fleshed out the Firestone test into a six-step framework designed to
guide courts in evaluating a plan administrator’s benefits decision in ERISA actions.
When the Eleventh Circuit created the Williams test, the sixth step of the sequential
framework required courts reviewing a plan administrator’s decision to apply a
heightened arbitrary and capricious standard if the plan administrator operated under
a conflict of interest. See id. The Eleventh Circuit later modified this step in response
to the Supreme Court’s ruling in Metropolitan Life Insurance Co. v. Glenn, 554 U.S.
105, 115-17 (2008), which concluded that a conflict of interest should be weighed
merely as “one factor” in determining whether an administrator abused its discretion.
See Doyle v. Liberty Life Assur. Co. of Boston, 542 F.3d 1352, 1359 (11th Cir. 2008)
11

(“As we now show, Glenn implicitly overrules and conflicts with our precedent
requiring courts to review under the heightened standard a conflicted administrator’s
benefits decision.”).
The Eleventh Circuit’s latest iteration of the Firestone standard-of-review
framework is found in Blankenship v. Metro. Life Ins. Co., 644 F.3d 1350 (11th Cir.),
cert. denied, 132 S. Ct. 849 (2011):
(1) Apply the de novo standard to determine whether the claim
administrator’s benefits-denial decision is “wrong” (i.e., the court
disagrees with the administrator’s decision); if it is not, then end the
inquiry and affirm the decision.
(2) If the administrator’s decision in fact is “de novo wrong,” then
determine whether he was vested with discretion in reviewing claims;
if not, end judicial inquiry and reverse the decision.
(3) If the administrator’s decision is “de novo wrong” and he was
vested with discretion in reviewing claims, then determine whether
“reasonable” grounds supported it (hence, review his decision under the
more deferential arbitrary and capricious standard).
(4) If no reasonable grounds exist, then end the inquiry and reverse the
administrator’s decision; if reasonable grounds do exist, then determine
if he operated under a conflict of interest.
(5) If there is no conflict, then end the inquiry and affirm the decision.
(6) If there is a conflict, the conflict should merely be a factor for the
court to take into account when determining whether an administrator’s
decision was arbitrary and capricious.
12

Id. at 1355.9 All steps of the analysis are “potentially at issue” when a plan vests
discretion to the plan administrator to make benefits determinations. See id. at 1356
n.7. Conversely, then, where a plan does not confer discretion, the court simply
applies the de novo review standard established by the Supreme Court in Firestone.
See Firestone, 489 U.S. at 115 (“[W]e hold that a denial of benefits challenged under
§ 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan
gives the administrator or fiduciary discretionary authority to determine eligibility for
benefits or to construe the terms of the plan.”).
B.

Mr. Oliver’s SOR Motion is due to be denied.

In this case, the parties dispute the appropriate standard of review for this court
to apply.10 In his SOR Motion, Mr. Oliver asserts that de novo review is called for,
9

“In ERISA cases, the phrases ‘arbitrary and capricious’ and ‘abuse of discretion’ are used
interchangeably.” Blankenship, 644 F.3d at 1355 n.5.
10

The answer to which standard applies carries great significance in relation to the scope of
this court’s evidentiary review. On one hand, if the de novo standard applies because of an absence
of discretionary authority, then the court is not limited in its review to simply those facts that were
before the administrator at the time of the decision. See Kirwan v. Marriott Corp., 10 F.3d 784, 789
(11th Cir. 1994) (“In this circuit, a district court conducting a de novo review of an Administrator’s
benefits determination is not limited to the facts available to the Administrator at the time of the
determination.”). On the other hand, if the arbitrary and capricious standard applies, triggering
application of the six-step analysis discussed above, then the court is limited in its review to the facts
available to the administrator at the time of the determination. See Glazer v. Reliance Standard Life
Ins. Co., 524 F.3d 1241, 1246-47 (11th Cir. 2008) (stating, in a case where the claims administrator
had discretion under the plan, that when evaluating whether the claims administrator’s decision was
wrong, “[w]e are limited to the record that was before [the claims administrator] when it made its
decision”).
13

while Defendants maintain that discretionary or arbitrary and capricious review is
required.11 Based upon the record in this case, the court sides with Defendants.
While Mr. Oliver bears the burden of proving his entitlement to ERISA
benefits under the FedEx Plan, Horton v. Reliance Std. Life Ins. Co., 141 F.3d 1038,
1040 (11th Cir. 1998), Defendants “bear[] the burden of proving that the arbitrary and
capricious standard of review applies.” Anderson v. Unum Life Ins. Co. of Am., 414
F. Supp. 2d 1079, 1095 (M.D. Ala. 2006) (citing Fay v. Oxford Health Plan, 287 F.3d
96, 104 (2d Cir. 2002)). After evaluating the substance of each plan document upon
which Defendants rely, and as discussed more fully below, the court finds that
Defendants have met their burden of demonstrating that arbitrary and capricious
review is proper. Accordingly, Mr. Oliver’s SOR Motion is due to be denied.
As the Eleventh Circuit explained in Jett v. Blue Cross and Blue Shield of Ala.,
Inc., 890 F.2d 1137 (11th Cir. 1989), regarding the de novo versus abuse of discretion
distinction:
The recent Supreme Court case which holds that a de novo standard of
review is proper under some plans validates the prior law of this Circuit
11

As a result of the Supreme Court’s decision in Glenn, as interpreted by the Eleventh
Circuit in Doyle, only two ERISA standards of review now exist in the context of challenging a plan
administrator’s claim decision—either de novo or modified arbitrary and capricious. Doyle, 542 F.3d
at 1359 (“As we now show, Glenn implicitly overrules and conflicts with our precedent requiring
courts to review under the heightened standard a conflicted administrator’s benefits decision.”).
14

that the arbitrary and capricious standard of review is appropriate here.
Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109 S. Ct. 948,
103 L. Ed. 2d 80 (1989). The [C]ourt held that
a denial of benefits challenged under [29 U.S.C.A.] §
1132(a)(1)(B) is to be reviewed under a de novo standard
unless the benefit plan gives the administrator or fiduciary
discretionary authority to determine eligibility for benefits
or to construe the terms of the plan.
Firestone, 109 S. Ct. at 956.
The plan in this case does give the administrator of the plan
“discretionary authority to determine eligibility for benefits [and] to
construe the [plan’s] terms.” Id. For example, the plan states,
As a condition precedent to coverage, it is agreed
that whenever the Claims Administrator makes reasonable
determinations in the administration of the [plan]
(including, without limitation, determinations whether
services, care, treatment, or supplies are Medically
Necessary . . .) such determinations shall be final and
conclusive.
Jett, 890 F.2d at 1138-39 (emphasis added). Therefore, in Jett, the court first looked
to the language of the plan in order to evaluate the standard of review issue.12 Cf.
Cagle v. Bruner, 112 F.3d 1510, 1517 (11th Cir. 1997) (“Accordingly, we look to all
of the plan documents to determine whether the plan affords the Fund enough

12

In Jett, the parties agreed that the arbitrary and capricious standard of review applied. Id.
at 1138 (“The parties agree that a court reviewing Blue Cross’ denial of benefits under this plan must
apply an arbitrary and capricious standard.”).
15

discretion to make the arbitrariness standard applicable.”) (emphasis added).
Article 1 (i.e., the “DEFINITIONS” section) of the FedEx Plan, as amended
and restated effective June 1, 2006 (the “2006 Restated FedEx Plan”) (Doc. 23-7 at
27),13 defines the terms “Company” as “Federal Express Corporation” (Doc. 23-7 at
30); “Administrator” as “the Company, which is charged with the administration of
the Plan, acting through its Employee Benefits Department” (id. at 31); and “Claims
Paying Administrator” as “Aetna Life Insurance Company or any other entity or
person designated as such by the Company.” (id. at 32).
Under the 2006 Restated FedEx Plan, “[t]he Administrator shall appoint an
appeal committee for the purposes of conducting reviews of denial of benefits and
providing the claimant with written notice of the decision reached by such
committee.” (Doc. 23-7 at 78). The Appeal Committee is the entity responsible for
reviewing claims decided by the Claims Paying Administrator that are challenged by
a claimant and for issuing “a timely decision in writing [to that person] following its
review.” (Doc. 23-7 at 79).
Concerning discretionary authority, the 2006 Restated FedEx Plan contains the
following relevant provisions:

13

All page references to Doc. 23-7 correspond with the court’s CM/ECF numbering system.
16

Authority of Appeal Committee. The appeal committee, appointed
pursuant to Subsection (c), shall, subject to the requirements of the Code
and ERISA, be empowered to interpret the Plan’s provisions in its sole
and exclusive discretion in accordance with its terms with respect to all
matters properly brought before it pursuant to this Section 5.3,
including, but not limited to, matters relating to the eligibility of a
claimant for benefits under the Plan. The determination of the appeal
committee shall be made in a fair and consistent manner in accordance
with the Plan’s terms and its decision, shall be final, subject only to a
determination by a court of competent jurisdiction that the committee’s
decision was arbitrary and capricious.
(Doc. 23-7 at 81-82 (emphasis added)).
Article 6 (i.e., the “ADMINISTRATION OF PLAN” section) of the 2006
Restated FedEx Plan provides similar discretionary powers to the Administrator. (See
Doc. 23-7 at 88 (“The determination of the Administrator shall be made in a fair and
consistent manner in accordance with the Plan’s terms and its decision, shall be final,
subject only to a determination by a court of competent jurisdiction that the
committee’s decision was arbitrary and capricious.”) (emphasis added)).
Finally, Article 6 identifies a “Committee” that “shall be appointed by the
board of directors of FedEx Corporation to perform the administrative duties
hereunder other than the administration of claims which is the responsibility of the
Administrator and Claims Paying Administrator to the extent such duties are
delegated to it by the Administrator.” (Doc. 23-7 at 88). The 2006 Restated FedEx
17

Plan purports to give the Committee discretionary authority. (See Doc. 23-7 at 89
(“The determination of the Committee shall be made in a fair and consistent manner
in accordance with the Plan’s terms and its decision, shall be final, subject only to a
determination by a court of competent jurisdiction that the [Committee]’s decision
was arbitrary and capricious.”) (emphasis added)).14
Thus, the 2006 Restated FedEx Plan bestows the Administrator, Appeal
Committee, and the Committee with discretionary authority when a decision is made
by that particular defined body. Defendants have not pointed to nor has the court has
been able to locate where the specific provisions of the 2006 Restated FedEx Plan
gives discretionary authority to any other entity besides these three.
Defendants assert that the Committee referenced in Section 6.2 of the 2006
Restated Plan is the Retirement Plan Investment Board (“RPIB”). (Doc. 26 at 6 ¶ 1).
Defendants also maintain that there is no group expressly designated as the “Appeal
Committee.” (Id. at 5 ¶ 5). Defendants instead represent that, prior to September 21,
2008, long-term disability appeals were decided by the Federal Express Corporation
Benefit Review Committee (“BRC”). (Id. at 6 ¶ 3). These representations are
substantiated by several documents contained in the record, including an inter-office
14

The alteration of “Committee” replaces the apparent typographical error of “Administrator”
that actually appears in the 2006 Restated Plan. (Doc. 23-7 at 89).
18

memo dated June 12, 2008, in which August C. Lauer, Managing Director of
Disability, Work/Life & HCMP recommended that long-term disability appeals be
outsourced to Aetna and that the BRC be eliminated (Doc. 27-1 at 2),15 and the July
14, 2008, minutes of the RPIB meeting in which the RPIB voted to approve the
recommendation “to outsource remaining long-term disability appeals effective
September 1, 2008, and effectively cease the operation of the [BRC].” (Doc. 27-3 at
3).
Mr. Oliver does not dispute that the 2006 Restated FedEx Plan unambiguously
vests discretion in various entities formed by FedEx to interpret terms and make final
long-term disability benefits determinations, but instead argues that such
discretionary authority does not extend to the adverse appellate benefits
determination rendered by the AARC on March 12, 2012, mailed to him on March
13, 2012, and made effective as of February 22, 2012. (Doc. 23-1 at 2-3). Defendants
counter that a subsequent amendment to the 2006 Restated Plan (as well as other
documents) make it clear that the AARC had discretionary authority in its appellate
role over Mr. Oliver’s long-term disability claim, which was finally denied on March
12, 2012.

15

All page references to Doc. 27-1 correspond with the court’s CM/ECF numbering system.
19

Article 7 of the 2006 Restated FedEx Plan governs “AMENDMENT AND
TERMINATION” procedures. (Doc. 23-7 at 91). Section 7.1 specifically addresses
amendments and provides in relevant part that:
The Sponsoring Employers shall have the right at any time to modify,
alter or amend the Plan in whole or in part by an instrument in writing
duly executed by officers of each of the Sponsoring Employers or as
reflected in the minutes of FedEx Corporation’s board of directors or
any committee thereof or as reflected in the minutes of the Committee.
(Doc. 23-7 at 91 (emphasis added)). The 2006 Restated FedEx Plan defines
“Employer” as “the Company, FedEx Corporation, and all other Sponsoring
Employers, and each of them, which are subsidiary to or affiliated with the Company
. . . .” (Id. at 36).
Defendants rely upon several different documents in an effort to show that
AARC has the requisite discretionary authority when deciding disability appeals. The
materials include the July 14, 2008, minutes of the RPIB meeting and an
“AMENDMENT TO SERVICE AGREEMENT” (the “2008 Service Amendment”)
entered into between FedEx and Aetna which memorializes that as of September 1,
2008, Aetna would “[b]e fully responsible for final appeal benefit determinations …
for Long Term Disability Plans . . . .” (Doc. 27-4 at 2).16 The 2008 Service

16

All page references to Doc. 27-4 correspond with the court’s CM/ECF numbering system.
20

Amendment also “delegates to Aetna discretionary authority to render eligibility and
benefit determinations and otherwise interpret the terms of the . . . Long Term
Disability Plans on appeal.” (Doc. 27-4 at 2).
Defendants also point to the “SECOND AMENDMENT TO THE FEDERAL
EXPRESS CORPORATION LONG TERM DISABILITY PLAN” (the “Second
FedEx Plan Amendment”) which, although not executed by the “Sponsoring
Employers” until January 2013 (Doc. 23-7 at 19-26), modifies Section 5.3 of the 2006
Restated FedEx Plan and clarifies “the terms of the Plan to reflect the delegation of
fiduciary duty to Aetna to determine claims under Plan that was effective September
1, 2008.” (Doc. 23-7 at 2).
More specifically, modified Section 5.3 makes it clear that the Claims Paying
Administrator (i.e., Aetna) is now (and since September 1, 2008, has been) the party
responsible for deciding appeals of denial of benefits. (Doc. 23-7 at 4). Further, the
authority portion of revised Section 5.3 provides:
(d)

Authority of Claims Paying Administrator. The Claims Paying
Administrator shall, subject to the requirements of the Code and
ERISA, be empowered to interpret the Plan’s provisions in its
sole and exclusive discretion in accordance with its terms with
respect to all matters properly brought before it pursuant to this
Section 5.3, including, but not limited to, matters relating to the
eligibility of a claimant for benefits under the Plan. The
determination of the Claims Paying Administrator shall be made
21

in a fair and consistent manner in accordance with the Plan’s
terms and its decision shall be final, subject only to a
determination by a court of competent jurisdiction that the
individual’s or committee’s decision was arbitrary and capricious.
(Doc. 23-7 at 4-5 (emphasis added)).
Nevertheless, Defendants’ reliance upon this Second FedEx Plan Amendment
to satisfy their burden of persuasion is not entirely convincing because, at the time
that Mr. Oliver’s final claims decision was made, this modification was not yet
formally in place. Further, the cases cited by Defendants do not concretely establish
that bestowing discretionary authority to a claims paying administrator under such
unique circumstances is a permissible retroactive amendment under the same type of
reasoning used in decisions such as Chiles v. Ceridian Corp., 95 F.3d 1505, 1510
(10th Cir. 1996) (upholding amendment which required participants to pay for a
portion of their health benefits), abrogated on other grounds by CIGNA Corp. v.
Amara, ___ U.S. ___, 131 S. Ct. 1866, 179 L. Ed. 2d 843 (2011), as recognized in
Tomlinson v. El Paso Corp., 653 F.3d 1281, 1295 (10th Cir. 2011) (“The Supreme
Court recently rejected Chiles’ reliance requirement.”), and Smith v. AEGON
Companies Pension Plan, 2013 U.S. Dist. LEXIS 10746 (W.D. Ky. Jan. 25, 2013)
(permitting retroactive application of change in choice of forum adopted in 2007 to
benefits that had accrued in 2000), and Dyce v. Salaried Employees’ Pension Plan of
22

Allied Corp., 15 F.3d 163, 166 (11th Cir. 1994) (permitting retroactive application of
amendment impacting pending claims for retirement benefits).
In particular, none of these cases stands for the proposition that the reach of
a retroactive delegation of discretionary authority to a claims administrator
appropriately extends to a final benefits decision made before that plan was formally
amended. Therefore, in the absence of any other plan documents which establish
Aetna’s discretionary authority prior to its determination of Mr. Oliver’s appeal, the
court would likely be inclined to use de novo review.
However, in this instance, Defendants’ universe of plan documents is not
limited to the 2006 Restated FedEx Plan or the Second FedEx Plan Amendment.
Instead, Defendants have additionally pointed to other plan documents which existed
prior to the final decision made on March 12, 2012. Further, unlike the records
presented to the court in Huffstutler v. Goodyear Tire & Rubber Company, No. 4:11CV-3325-VEH (Doc. 18) and Glover v. Amcor Pet Packaging, USA, Inc., No. 4:09CV-65-VEH (Doc. 45),17 these other plan instruments confirm that discretionary

17

To be clear, in Huffstutler, the undersigned did not analyze any language from a summary
plan description, because that was not one of the plan documents offered by the defendant to carry
its burden. In Glover, the undersigned did discuss the discretionary provision included in the
summary plan description, and found that the final disability decisonmaker (who was outside counsel
for the defendant) did not fall within the scope of that provision.
23

authority was appropriately delegated to the AARC in advance of its decision on Mr.
Oliver’s appeal.
More specifically, Defendants contend that this court should utilize ERISA’s
arbitrary and capricious standard because of the language contained in the 2011
summary plan description (the “2011 SPD”) and the 2012 summary plan description
update (the “2012 Update”). The 2011 SPD replaces all prior versions (Doc. 23-5 at
8)18 and explains that the “Plan Administrator – and sometimes the claims paying
administrator – has discretionary authority to interpret Plan provisions, clarify unclear
terms, determine eligibility for benefits and otherwise make all decisions about Plan
administration.” (Doc. 23-5 at 10 (emphasis added)); (see also id. (“For some Plans,
FedEx has delegated authority to an insurance company to administer benefit claims
under the Plan. . . . Subject to the overall authority of the Plan Administrator, the
claims-paying administrator has discretionary authority to interpret Plan provisions
and determine benefit claims.”) (emphasis added)).
Additionally, the 2012 Update (applicable to benefits being sought effective
January 1, 2012 (Doc. 23-6 at 2)),19 expressly identifies the “Aetna Appeal Review

18

All page references to Doc. 23-5 correspond with the court’s CM/ECF numbering system.

19

All page references to Doc. 23-6 correspond with the court’s CM/ECF numbering system.
24

Committee” (i.e., the previously defined AARC) as the “GROUP RESPONSIBLE
FOR FINAL REVIEW” of a disability appeal filed under the Plan. (Compare Doc.
23-6 at 25 (indicating “Aetna Appeal Review Committee”), with Doc. 23-5 at 58
(indicating “Aetna Appeals Committee”)). Therefore, the 2011 SPD in conjunction
with the 2012 Update confirm that discretionary review applies to the final denial of
Mr. Oliver’s long-term disability claim by the AARC on March 12, 2012.
This court’s conclusion that the contents of the 2011 SPD and the 2012 Update
effectively bestow the AARC with discretionary authority under ERISA is reinforced
by the Eleventh Circuit’s standard of review reasoning employed in Cagle:
Since there is no conflict of interest in this case, either the de novo
or the arbitrary and capricious standard applies, depending upon whether
the plan documents give the Fund sufficient discretion. The Fund argues
that it is provided sufficient discretion to interpret the plan in the Trust
Agreement and in the Rules and Regulations. In opposition, both
Genesis and Bruner argue that the plan’s Summary Plan Description
(“SPD”), not other plan documents, must contain the discretionary
language in order for the Fund to receive the deference required under
the arbitrariness standard. We reject that argument. Both the Supreme
Court and this Court have reviewed trust documents and other non-SPD
documents in the search for a reservation of discretion for plan
administrators or fiduciaries. See Firestone, 489 U.S. at 109-13, 109 S.
Ct. at 954-55; Guy v. Southeastern Iron Workers’ Welfare Fund, 877
F.2d 37, 39 (11th Cir. 1989). Accord Diaz v. Seafarers Int’l Union, 13
F.3d 454, 457 (1st Cir. 1994); Luby v. Teamsters Health, Welfare and
Pension Trust Funds, 944 F.2d 1176, 1180-81 (3d Cir.1991).
Accordingly, we look to all of the plan documents to determine whether
the plan affords the Fund enough discretion to make the arbitrariness
25

standard applicable.
Cagle, 112 F.3d at 1517 (emphasis added).
Here, the position advanced by Mr. Oliver (i.e., a delegation of discretionary
authority must appear within the actual plan–as opposed to the summary plan
description–in order for it be effective) is the opposite of what the plaintiffs argued
in Cagle. However, Cagle’s overriding principle that no single instrument controls
the court’s standard of review inquiry still holds. Instead, as Cagle confirms, all planrelated documents (that are part of the record) are relevant when the parties disagree
over whether de novo or discretionary review applies to a disputed ERISA benefits
claim.
C.

Mr. Oliver’s Disability Motion is due to be denied and
Defendants’ Cross Disability Motion is due to be granted.
1.

Mr. Oliver’s Long-Term Disability Claim

Turning to the court’s initial inquiry under ERISA:
[T]he court reviews the decision by the administrator to determine
whether it was “wrong.” Tippitt, 457 F.3d at 1232; see also Levinson v.
Reliance Standard Life Ins. Co., 245 F.3d 1321, 1326 (11th Cir. 2001)
(quoting Brown v. Blue Cross & Blue Shield of Ala., Inc., 898 F.2d
1556, 1566 n.12 (11th Cir.1990)). A decision is “wrong” if, after a
review of the decision of the administrator from a de novo perspective,
“the court disagrees with the administrator’s decision.” Williams, 373
F.3d at 1138 & n.8. The court must consider, based on the record before
the administrator at the time its decision was made, whether the court
26

would reach the same decision as the administrator. If the court
determines that the plan administrator was right, the analysis ends and
the decision is affirmed. Tippitt, 457 F.3d at 1232.
Glazer v. Reliance Standard Life Ins. Co., 524 F.3d 1241, 1246-47 (11th Cir. 2008).
Here, the court concludes that the AARC’s final disability determination is de
novo correct for multiple reasons, including Mr. Oliver’s overall failure to objectively
establish that the vocational ramifications caused by his impairments satisfied the
requirements of the 2006 Restated FedEx Plan’s total disability provision, i.e., the
inability to work at any job for a minimum of twenty-five hours a week effective as
of February 22, 2012. Instead, Mr. Oliver, at best, has established a period of nonpermanent total disability under the SSA as of January 17, 2012. (See, e.g., Doc. 23-2
at 21 (“Medical improvement is expected with appropriate treatment.”); id.
(“Consequently, a continuing disability review is recommended in 12 months.”)).
Importantly (and as the AARC expressly recognized in reviewing Mr. Oliver’s
appeal), because significant differences exist between the SSA test and that governing
the 2006 Restated FedEx Plan, the former falls short of demonstrating that Aetna
committed de novo error under ERISA.
For example, under step five of the SSA’s disability framework, the SSA takes
the position that “only an ability to do full-time work will permit the ALJ to render
27

a decision of not disabled.” Kelley v. Apfel, 185 F.3d 1211, 1214 (11th Cir. 1999); see
id. at 1214-15 (“Thus, if the government is correct in its interpretation, a claimant
could pass Step Five and be entitled to benefits even though capable of working on
a part-time basis.”) (emphasis added). Therefore, to what extent a favorable SSA
disability decision (which, like Mr. Oliver’s, turns on the fifth step of that statute’s
model) also demonstrates a claimant’s inability to work a minimum of twenty five
hours a week “in any compensable employment” is inconclusive. (See Doc. 23-7 at
42 (defining “Total Disability” under 2006 Restated FedEx Plan)).
Another notable difference between the two disability models is that a fifthstep SSA disability determination is tied to a separate determination of whether a
significant number of jobs exist in the national economy which a claimant can
perform. In contrast, the availability of jobs (or part-time employment) is not a
component of the total disability definition under the 2006 Restated FedEx Plan. Put
differently, if a physically-impaired claimant is a capable of working in a sedentary
position for twenty five hours or more per week, under the 2006 Restated FedEx Plan
it is irrelevant to the disability determination whether a significant number of such
sedentary jobs exist.
Additionally, while under the SSA structure the lack of objective medical
28

evidence does not always disqualify a claimant from being found disabled so long as
his subjective allegations of pain are deemed credible, see, e.g., Francis v. Heckler,
749 F.2d 1562, 1564 (11th Cir. 1985) (“It is well established in the Eleventh Circuit
that pain alone can be disabling, even when its existence is unsupported by objective
evidence.” (citing Wiggins v. Schweiker, 679 F.2d 1387, 1390 (11th Cir. 1982))), the
2006 Restated FedEx Plan has a much stricter approach to dealing with subjective
complaints of pain.
Disability or Disabled shall mean either an Occupational Disability or
a Total Disability; provided, however . . . such Disability is substantiated
by significant objective findings which are defined as signs which are
noted on a test or medical exam and which are considered significant
anatomical, physiological or psychological abnormalities which can be
observed apart from the individual’s symptoms.
(Doc. 23-7 at 34-35 (emphasis added)); (see also Doc. 23-2 at 5 (“Pain, without
significant objective findings, is not proof of disability.” (emphasis in original)).
Therefore, in light of the above materially different underpinnings of the SSA’s
disability determination, Mr. Oliver’s SSA award does not constitute objective proof
that he is totally disabled under the 2006 Restated FedEx Plan.
The court also concludes that the form filled out by the office of Dr. Lawrence
Lemak on December 15, 2011 (Doc. 23-2 at 56) fails to establish that Aetna’s
decision on Mr. Oliver’s appeal was de novo wrong. In particular, even though the
29

box indicating that Mr. Oliver is “unable to work at any compensable employment for
a minimum of twenty-five hours a week” is marked (Doc. 23-2 at 56), the underlying
treatment records that either immediately precede or coincide with the completion of
this form show only that Mr. Oliver is precluded from returning to his former courier
position with FedEx. (See, e.g., Doc. 23-2 at 55 (“[I]t’s my professional opinion that
he will be unable to return to Federal Express as a Courier, secondary to total knee
replacement.”) (emphasis added)).
Finally, none of the other evidence upon which Mr. Oliver relies nor his
rambling judicial estoppel argument raised for the first time in opposition to
Defendants’ Cross Disability Motion (Doc. 36 at 14-28) persuades this court that
Aetna’s decision to deny his disability appeal was incorrect. As it pertains to Mr.
Oliver’s judicial estoppel contentions more specifically, such a theory, which has not
been alleged by him in a pleading, is subject to summary judgment for procedural as
well as substantive reasons.
From a procedural standpoint, the Eleventh Circuit has made it unmistakably
clear that “[a] plaintiff may not amend her complaint through argument in a brief
opposing summary judgment.” Gilmour v. Gates, McDonald and Co., 382 F.3d 1312,
1315 (11th Cir. 2004) (citing Shanahan v. City of Chicago, 82 F.3d 776, 781 (7th Cir.
30

1996)). Gilmour dealt with a plaintiff who was attempting to assert a new claim at the
summary judgment stage. Gilmour, 382 F.3d at 1314-15.
Additionally, a more recent decision by the Eleventh Circuit cites to Gilmour
and confirms that a district court’s consideration of any critical amendment asserted
merely as part of the briefing process is disfavored.
The current practice in some district courts—especially in the
summary judgment setting—is to ignore what the respective parties
alleged in their complaint and answer and to consider their claims and
defenses as depicted in the memoranda they filed in support of or in
opposition to a motion for summary judgment. As is the situation here,
the claims and defenses presented in the memoranda supporting or
opposing summary judgment are not presented in the complaint and
answer with the specificity required by the Federal Rules of Civil
Procedure and the Supreme Court’s decisions in Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007), and
Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868
(2009); rather, they are presented in a shorthand fashion. The result is
that on appeal we have difficulty in determining whether the district
court, in granting summary judgment, ruled on the claims and defenses
as stated in the complaint and answer or as stated in the memoranda
submitted to the court on summary judgment, as if the pleadings had
been amended by implied consent.
We encountered this dilemma most recently in
GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244 (11th Cir. 2012),
cert. denied, ___ U.S. ___, 133 S. Ct. 856, 184 L. Ed.2 d 656 (2013).
There, in their motion for summary judgment, the plaintiffs sought to
eliminate a critical deficiency in the allegations of their amended
complaint by including additional facts. The defendants did not object
to this tactic on the ground that the plaintiffs were, in effect, seeking to
amend their complaint. And the district court, in ruling on the
31

sufficiency of the complaint, appeared to have considered the additional
facts as if they had been alleged in the complaint. In affirming the
district court’s dismissal of the claim at issue, we refused to consider
these additional facts, citing precedent that precludes a plaintiff from
amending its complaint “through argument at the summary judgment
phase of proceedings.” Id. at 1258 n. 27. “At the summary judgment
stage, the proper procedure for plaintiffs to assert a new claim is to
amend the complaint in accordance with Fed. R. Civ. P. 15(a).” Gilmour
v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004).
This court’s precedent foreclosed Well–Come’s attempt to amend
its complaint at the summary judgment stage without seeking leave of
court pursuant to Rule 15(a)(2). Accordingly, the District Court should
have disposed of Well–Come’s claim with a statement that Well–Come
failed to establish that ASRRG and ASIS issued a commercial general
liability policy and excess/umbrella liability policy to Flintlock LLC, as
alleged in paragraphs 6 and 7 of its complaint. We affirm the court’s
judgment on that ground. Krutzig v. Pulte Home Corp., 602 F.3d 1231,
1234 (11th Cir.2010) (“This court may affirm a decision of the district
court on any ground supported by the record.”).
Flintlock Const. Servs., LLC v. Well-Come Holdings, LLC, 710 F.3d 1221, 1227-28
(11th Cir. 2013) (emphasis added).
Neither Mr. Oliver’s complaint (Doc. 1-1 at 4-5) nor his amended complaint
(Doc. 10) advances a theory of judicial estoppel as a means for recovering long-term
disability benefits from Defendants. Thus, Gilmour and Flintlock procedurally
foreclose Mr. Oliver from belatedly attempting to amend his complaint in such a
critical manner through his briefing.
Mr. Oliver’s judicial estoppel theory also misses the mark substantively. In
32

particular, while Mr. Oliver spends multiple pages of his opposition brief
regurgitating portions of the Eleventh Circuit’s decision in Melech v. Life Ins. Co. of
North America, 739 F.3d 663 (11th Cir. 2014) as supportive of his position, he fails
to acknowledge a fundamental difference between Melech and the record here. In
Melech, the Eleventh Circuit remanded the case to “LINA . . . to decide Melech’s
claim with the full benefit of the results generated by the SSA process that it helped
to set in motion.” 739 F.3d at 676-77. In striking contrast to Melech, Aetna’s denial
of Mr. Oliver’s appeal expressly addressed why his favorable SSA award did not
warrant a finding that he was totally disabled under the 2006 Restated FedEx Plan.
(Doc. 23-1 at 3).
Additionally, Melech by no means holds that a claimant’s favorable SSA award
is determinative of disability under an ERISA plan, as Mr. Oliver seems to suggest.
Instead, as the Eleventh Circuit made plainly clear in ordering a remand to the claims
administrator for further development:
In doing so, we do not prejudge the ultimate outcome. LINA may be
able to draw a principled distinction between its own standards for
granting disability benefits under the Policy and the SSA's standards for
awarding SSDI. All we require of LINA is to decide Melech's claim with
the full benefit of the results generated by the SSA process that it helped
to set in motion.
Melech, 739 F.3d at 676-77 (emphasis added). Accordingly, as it pertains to
33

Defendants’ de novo liability pursuant to § 1132(a)(1)(B) of ERISA, Mr. Oliver’s
Disability Motion is due to be denied and Defendants’ Cross Disability Motion is due
to be granted.
Alternatively, even if Aetna committed de novo error in deciding Mr. Oliver’s
appeal, the use of the more lenient discretionary review standard (which the court
above has decided appropriately applies in this instance) means that its disability
decision is, a fortiori, due to be upheld. Regarding this deferential review, which
within the Eleventh Circuit applies “both [to] the administrator’s plan interpretations
and [to] . . . factual determinations[,]”Blankenship, 644 F.3d at 1355 n.6, this court’s
evaluation is limited to whether Aetna’s decision was reasonable under the
circumstances.20 Furthermore, “[a]s long as a reasonable basis appears for [the]
decision [of the Committee], it must be upheld as not being arbitrary or capricious,
even if there is evidence that would support a contrary decision.” White v. Coca-Cola
Co., 542 F.3d 848, 856 (11th Cir. 2008) (internal quotation marks omitted) (emphasis
added) (quoting Jett, 890 F.2d at 1140).

20

Importantly, other than repeatedly referencing the Supreme Court’s decision in
Metropolitan Life Insurance Co. v. Glenn (discussed supra) within his various briefs, Mr. Oliver has
failed to articulate any convincing argument substantiated with underlying evidence that a conflict
of interest of the part of Aetna is a factor for the court to consider here. Instead, the 2006 Restated
FedEx Plan makes it clear that the FedEx Plan is funded by a trust established and maintained by
FedEx (Doc. 23-7 at 70), and not by an underlying policy of insurance issued by Aetna.
34

As the Eleventh Circuit has explained regarding reasonableness:
Doyle argues that the district court erred in finding that Liberty
Life’s denial of her claim for disability benefits was reasonable.
Specifically, she argues that it was unreasonable for Liberty Life not to
consider her subjective claims of pain and suffering, which she argues
are substantiated by her fibromyalgia diagnosis.
Liberty Life considered Doyle’s medical records and employed
the services of two independent physicians to review those records. It
concluded that she was still able to perform the duties of her “Own
Occupation,” and so did not satisfy the prerequisite for obtaining LTD
benefits under the ChoicePoint policy. We conclude that it was not
unreasonable for Liberty Life to disregard Doyle’s complaints of
intangible pain and suffering. Under ChoicePoint’s policy, a plan
beneficiary must provide proof that she is disabled in order to obtain
LTD benefits. The policy defines “proof” as including “chart notes, lab
findings, test results, x-rays and/or other forms of objective medical
evidence in support of a claim for benefits.” (R.2-12 at 9) (emphasis
added). Therefore, it was reasonable for Liberty Life to rely only on
objective medical evidence supporting Doyle’s claim, evidence which
Liberty Life’s reviewing physicians found lacking. See, e.g., R.1-12 at
279 (statement of Liberty Life’s reviewing physician, Dr. Silver, that
Doyle’s complaints “are unsubstantiated by objective clinical orthopedic
findings”); R.2-12 at 104 (statement of Liberty Life’s reviewing
physician, Dr. Truchelut, that Doyle’s “subjective reports are
disproportionate to the physical, radiological, laboratory, and
neurodiagnostic” records).
After reviewing the record, we find no error in the district court's
determination that Liberty Life’s decision was reasonable.
Doyle, 542 F.3d at 1358 (emphasis by underlining added). The plan language at issue
in Doyle is worded similarly to that utilized in the 2006 Restated FedEx Plan–
35

objective proof is required to substantiate total disability. Therefore, guided by Doyle,
and based upon the inadequacies identified by the court with the documentation relied
upon by Mr. Oliver in an effort to substantiate his claim on a de novo basis, Aetna
reached a reasonable determination that he did not objectively satisfy the definition
of total disability under the 2006 Restated FedEx Plan.
2.

FedEx Plan’s Counterclaim on Offset Calculation

Defendants additionally seek summary judgment on the FedEx Plan’s
counterclaim regarding the offset calculation which is also pled as Count II of Mr.
Oliver’s amended complaint. (Doc. 10 at 3 ¶¶ 1-3). The parties agree that the 2006
Restated FedEx Plan contains a provision that requires a claimant to reduce any longterm benefits received by income received from other sources, expressly including the
SSA, which has been triggered by Mr. Oliver’s SSA disability award. (Doc. 23-7 at
59-60, 62). Their disagreement arises over how much Mr. Oliver should reduce his
long-term occupational disability payment made to him under the 2006 Restated
FedEx Plan in light of his SSA award.
On or about March 29, 2012, Mr. Oliver sent a refund check made payable to
FedEx in the amount of $23,508.00 in connection with the proceeds he received from

36

the SSA. (Doc. 23-9 at 78).21 Defendants maintain that the FedEx Plan is owed an
additional amount of $5,912.63, which represents the amount that Mr. Oliver paid to
his attorney in connection with the SSA award subject to a 2012 tax adjustment.
(Doc. 23-8 at 3); (see also Doc. 33-1 at 3 ¶ 6 (substantiating Mr. Oliver’s still
outstanding setoff amount through declaration of Latona J. McGee, FedEx’s HR
Advisor in the Benefits Planning and Management Department)).22 In particular,
Defendants point out that the 2006 Restated FedEx Plan makes no exception for fee
or cost-sharing agreements that a claimant may have separately negotiated with his
SSA counsel. (Doc. 23-7 at 59-63).
Mr. Oliver’s opposition brief lacks any discussion which counters Defendants’
offset position. In particular, Mr. Oliver does not even include a passing reference to
this claim in his conclusion.23 (Doc. 36 at 44). Thus, in light of this omission, Mr.
Oliver either has abandoned Count II of his complaint and/or has conceded that the
21

All page references to Doc. 23-9 correspond with the court’s CM/ECF numbering system.

22

All page references to Doc. 23-8 and Doc. 33-1 correspond with the court’s CM/ECF
numbering system.
23

The court acknowledges that, within the factual section of his opposition, Mr. Oliver
asserts that, “[a]s a matter of equity, Oliver is entitled to a credit of $5,912.63–the amount of the fee
paid to his Social Security attorney.” (Doc. 36 at 6 ¶ 29). Mr. Oliver also later laments that “Aetna
refused to give Oliver credit for the attorney fee . . . .” (Doc. 36 at 13 n.2). However, Mr. Oliver
offers no authority in support of either one of these undeveloped points and, consequently, such
meager efforts to oppose are entirely ineffective. See Flanigan’s and Ordower, infra at 42-43.
37

FedEx Plan is entitled to summary judgment on its setoff counterclaim. See, e.g.,
Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (“[T]he
onus is upon the parties to formulate arguments; grounds alleged in the complaint but
not relied upon in summary judgment are deemed abandoned.” (citing Road Sprinkler
Fitters Local Union No. 669 v. Indep. Sprinkler Corp., 10 F.3d 1563, 1568 (11th Cir.
1994))); Coalition for the Abolition of Marijuana Prohibition v. City of Atlanta, 219
F.3d 1301, 1326 (11th Cir. 2000) (failure to brief and argue issue at the district court
is sufficient to find the issue has been abandoned); Wilkerson v. Grinnell Corp., 270
F.3d 1314, 1322 (11th Cir. 2001) (finding claim abandoned when argument not
presented in initial response to motion for summary judgment).
Accordingly, the counterclaim portion of Defendants’ Cross Disability Motion
is due to be granted.
3.

Aetna’s Independent
Judgment

Basis

for

Summary

Aetna separately argues in Defendants’ brief in support of their Cross
Disability Motion that, as merely a claims administrator, it is not a proper party
defendant under 29 U.S.C. § 1132(a)(1)(B). (Doc. 32 at 20-23). Instead, Aetna
maintains the only appropriate real party in interest in connection with Mr. Oliver’s
ERISA benefits claim is the FedEx Plan, which entity Mr. Oliver has separately sued.
38

In his opposition, Mr. Oliver never acknowledges this contention distinctly
raised by Aetna, much less addresses the on-point cases which Aetna has cited.
Accordingly, Aetna is independently entitled to summary judgment on its improper
party defense due to Mr. Oliver’s abandonment and/or concession of this issue.
D.

Mr. Oliver’s Motion To Add is due to be denied and
alternatively is due to be termed as moot.

Mr. Oliver maintains in his Motion To Add that six different categories of
documents relating to his disability claim need to be added to the administrative
record because they reflect “facts known by Aetna but which are not accurately
reported in the Administrative Record.” (Doc. 25 at 3). Two of these (i.e., Doc. 25-1
(letter explaining distinction between occupational and total disability under the 2006
Restated FedEx Plan), and Doc. 25-3 (executed “AUTHORIZATION TO SHARE
AND USE MEDICAL INFORMATION”), predate the AARC’s final disability
determination made on March 12, 2012. One of these exhibits is undated. (Doc. 25-2
(uncompleted form relating to consent for release of information from the SSA)).
The remaining three exhibits (i.e., Doc. 25-4, Doc. 25-5, and Doc. 25-6)
contain correspondence from Mr. Oliver’s attorney which post-date the AARC’s key
administrative decision. Doc. 25-5 additionally attaches treatment records from Rehab
Partners spanning from December 22, 2003, until January 14, 2011. Doc. 25-6
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encloses records from Tennessee Valley Pain Consultants relating to an epidural that
Mr. Oliver received for pain on May 20, 2010.
Defendants counter with respect to Mr. Oliver’s Motion To Add that:
[Mr. Oliver] seems to be incorrectly conflating the “claim file” with the
Administrative Record that was considered during the decision-making
process. [Mr. Oliver] improperly moves to add documents that he never
submitted during the pendency of his claim for disability benefits and
also failed to submit during the appeal process. [Mr. Oliver] also moves
to “add” documents that are actually already contained in the “claim
file.”
(Doc. 34 at 1).
The Eleventh Circuit has made it clear that, when evaluating the correctness
of a claims administrator’s determination under an arbitrary and capricious standard,
the court is “limited to the record that was before [that entity] when it made its
decision.” Jett, 890 F.2d at 1139 (citing Brown v. Retirement Committee of Briggs &
Stratton Retirement Plan, 797 F.2d 521, 532 (7th Cir. 1986)); see also Lee v. Blue
Cross/Blue Shield of Alabama, 10 F.3d 1547, 1550 (11th Cir. 1994) (“Application of
the arbitrary and capricious standard requires us to look only to the facts known to the
administrator at the time the decision was made to deny Lee coverage.” (citing Jett));
cf. Blank v. Bethlehem Steel Corp., 926 F.2d 1090, 1093 (11th Cir. 1991) (referencing
factors applicable to “determining whether the contested [plan] interpretation was
40

made rationally and in good faith”).
While Mr. Oliver acknowledges the binding holdings contained in these legal
authorities, his briefing, nonetheless, fails to establish how these documents which
he seeks to add satisfy the Eleventh Circuit’s “facts known at the time of the
decision” standard. Mr. Oliver also fails to clarify why, some or even if all such
documents meet this test, the specific relief he seeks (i.e., adding these items to
Aetna’s administrative record) is appropriate, especially when the record before the
court on summary judgment already contains them.
For example, while Mr. Oliver cites to the Blank and Harris v. Pullman
Standard, Inc., 809 F.2d 1494 (11th Cir. 1987) decisions as supporting his position,
the Blank panel merely assumed without deciding that certain post-decision records
were relevant to its arbitrary and capricious review despite the “facts known” test, see
id. at 1094 n.4 (“We assume without deciding that two of these sales, which occurred
after the transaction at issue here, nevertheless are relevant to whether the Board
acted arbitrarily at the time it denied benefits to the plaintiffs.”), and Harris does not
mention the standard at all.
Additionally, while the two non-binding cases cited by Mr. Oliver stand for the
general proposition that a reviewing court may, under certain circumstances, consider
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evidence outside of the administrative record when evaluating whether an
administrator acted arbitrarily in denying a claim (Doc. 25 at 3-4, 5-6), neither
opinion indicates that seeking to add those documents to the administrative record is
an appropriate or, much less, a necessary action–the reviewing court instead may
simply consider the impact of such evidence on the issue of arbitrariness without
undergoing this administrative procedural step.
Further, Mr. Oliver sweepingly and unhelpfully asserts in his reply brief that
(i) “[t]he claim file and the Administrative Record are the same[;]” (ii) “[t]he claim
file or administrative record shall include the entire Record[;]” (iii) “Defendants have
no right to pick and choose what belongs in the Record[;]” and “[t]he file is
incomplete.” (Doc. 43 at 2, 3). However, Mr. Oliver never links these statements to
any cases which establish their validity as guideposts for deciding ERISA benefit
disputes, much less that the relief he seeks is warranted by his numerous conclusory
legal assertions.
In sum, Mr. Oliver’s Motion To Add is due to be denied as perfunctorily made
and underdeveloped. Cf. Flanigan’s Enters., Inc. v. Fulton County, Ga., 242 F.3d
976, 987 n.16 (11th Cir. 2001) (holding that a party waives an argument if the party
“fail[s] to elaborate or provide any citation of authority in support” of the argument);
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Ordower v. Feldman, 826 F.2d 1569, 1576 (7th Cir. 1987) (stating that an argument
made without citation to authority is insufficient to raise an issue before the court).
Alternatively, Mr. Oliver’s Motion To Add is also due to be termed as moot.
More specifically, even when considering all the documents which Mr. Oliver seeks
to add to the administrative record as “facts known” to Aetna, the court still,
nevertheless, concludes that the final decision made by Aetna (through the AARC)
that Mr. Oliver lacked objective proof to substantiate total disability under the 2006
Restated FedEx Plan for the time period beginning February 22, 2012, and forward,
is both de novo correct and reasonable.
E.

Mr. Oliver’s Compel Motion is due to be denied.

Mr. Oliver’s Compel Motion seeks to obtain discovery-related information
from Defendants. Assuming without deciding that ERISA substantively entitles Mr.
Oliver to Defendants’ creation of a log of omitted items (which he has vaguely
described as missing), procedurally his Compel Motion is flawed because he ignores
the impact that Rule 16 has on it.
More specifically, on December 13, 2013, the court entered a scheduling order
(Doc. 17), which expressly provides that “all discovery must be commenced in time
to be completed by April 30, 2014.” (Id. at 1 (emphasis in original)). The scheduling
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order further states:
Any requests for extension of any deadlines must be filed at least
five days prior to that deadline to be considered. Good cause must be
shown for the extension of any deadline. Good cause includes a
showing of what discovery, etc., has already been completed and
precisely why the deadlines cannot be met.
(Doc. 17 at 2 (emphasis in original)).
Even though Mr. Oliver’s Compel Motion post-dates the parties’ discovery
completion deadline of April 30, 2014, by close to 4 months, Mr. Oliver does not
even acknowledge, much less separately seek to modify the scheduling order or
otherwise demonstrate good cause for extending the discovery deadline for the
production that he belatedly seeks. See Fed. R. Civ. P. 16(b)(4) (“A schedule may be
modified only for good cause and with the judge’s consent.”); see also Perez v.
Miami-Dade County, 297 F.3d 1255, 1263 n.21 (11th Cir. 2002) (“Whether a motion
was filed timely and is appropriate under a pretrial order is a question left to the
district court’s discretion.” (citing Spiller v. Ella Smithers Geriatric Ctr., 919 F.2d
339, 343 (5th Cir. 1990))); cf. Josendis v. Wall to Wall Residence Repairs, Inc., 662
F.3d 1292, 1307 (11th Cir. 2011) (“And though the court had the authority to grant
a post hoc extension of the discovery deadline for good cause, it was under no
obligation to do so; in fact, we have often held that a district court’s decision to hold
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litigants to the clear terms of its scheduling orders is not an abuse of discretion.”
(emphasis added) (citing Bearint ex rel. Bearint v. Dorell Juvenile Grp., Inc., 389
F.3d 1339, 1348-49 (11th Cir. 2004))); cf. also Bearint, 389 F.3d at 1349 (“Given the
wide latitude the district court has to exclude untimely submissions, we cannot say
that it abused its discretion to exclude this [expert] report.”).
The failure of Mr. Oliver to even mention Rule 16’s good cause standard is
significant because, as a result, he has not even triggered a consideration of the
disputed discovery issue. As the United States District Court for the Southern District
of Alabama has observed:
“Judges are not like pigs, hunting for truffles buried in briefs.” Smith v.
Secretary, Department of Corrections, 572 F.3d 1327, 1352 (11th Cir.
2009). An issue must be “fairly presented” in order to trigger
consideration, and a glancing reference without discussion or legal
authority does not meet that standard. Id. As the Court has previously
noted, (Doc. 110 at 2), “[t]here is no burden upon the district court to
distill every potential argument that could be made based upon the
materials before it on summary judgment.” Resolution Trust Corp. v.
Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995).
Amazing Grace Bed & Breakfast v. Blackmun, No. 09-0298-WS-N, 2011 WL 606126,
at *3 (S.D. Ala. Feb. 11, 2011). Therefore, similar to Amazing Grace, because Mr.
Oliver has not “fairly presented” to the court why he should be entitled to obtain
untimely discovery from Defendants, the court will not speculate as to any possible
45

scenarios under which he might have met Rule 16’s good cause standard.
Accordingly, for all these reasons, Mr. Oliver’s Compel Motion is due to be
denied.
F.

Mr. Oliver’s Strike Motion is due to be termed as moot.

In his Strike Motion, Mr. Oliver seeks to preclude from the record several
documents offered by Defendants to establish the appropriate standard of review for
this court to apply. These documents all relate to the handling of long-term disability
appeals under the Plan and include the FedEx inter-office memorandum dated June
12, 2008 (Doc. 27-1); the FedEx inter-office memorandum dated July 9, 2008 (Doc.
27-2); the minutes of the RPIB meeting held on July 14, 2008 (Doc. 27-3); and the
2008 Service Amendment. (Doc. 27-4).
Mr. Oliver contends that because these records were not identified as part of
Defendants’ initial disclosures under Rule 26, Defendants are precluded under Rule
37(c) from relying upon such evidence in opposition to his SOR Motion. In
opposition, Defendants initially counter that, because Mr. Oliver’s complaint lacks
any allegations about which standard of review applies, Defendants did not appreciate
the relevance of these documents until after the filing of Mr. Oliver’s SOR Motion.
Defendants also respond that as this case is more akin to “an action for review of an
46

administrative record[,]” the lawsuit is “exempt” from the requirement to exchange
initial disclosures. Fed. R. Civ. P. 26(a)(1)(B)(i).
Based upon its analysis of Mr. Oliver’s SOR Motion, however, the court does
not need to reach any of the contested matters at stake in the Strike Motion. More
specifically, even in disregarding those pieces of evidence challenged by Mr. Oliver,
the court’s conclusion reached regarding arbitrary and capricious review would
remain unchanged due to the discretionary power unambiguously bestowed to the
AARC by way of the preexisting 2011 SPD and 2012 Update. Cf. McKnight v.
Southern Life and Health Ins. Co., 758 F.2d 1566, 1570 (11th Cir. 1985) (“ERISA
provides that the summary shall be an accurate and comprehensive document that
reasonably apprises the employees of their rights under the plan.”); id. (“As a
Southern Life employee, McKnight was justified in relying on the summary booklet
to determine his pension rights.”). Accordingly, Mr. Oliver’s Strike Motion is due to
be termed as moot.
V.

CONCLUSION
In sum, (1) Mr. Oliver’s SOR Motion is due to be denied; (2) Mr. Oliver’s

Disability Motion is due to be denied; (3) Defendants’ Cross Disability Motion is due
to be granted; (4) Mr. Oliver’s Motion To Add is due to be denied and alternatively
47

is due to be termed as moot; (5) Mr. Oliver’s Strike Motion is due to be termed as
moot; and (6) Mr. Oliver’s Compel Motion is due to be denied. The court will enter
a separate final judgment order consistent with this memorandum opinion.
DONE and ORDERED this 27th day of October, 2014.

VIRGINIA EMERSON HOPKINS
United States District Judge

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