The Renegade Lawyer Podcast

Ep. 201 – Behind the Brief: ERISA Oral Argument in the 4th Circuit

• Ben Glass

Share episode

In this episode, Ben Glass shares a full oral argument recording from the U.S. Court of Appeals for the Fourth Circuit. The case? An ERISA long-term disability appeal involving a battle over regulatory deadlines, the standard of review, and the real meaning of "special circumstances."

Ben argued on behalf of the plaintiff (appellee), after winning in the district court. Reliance Standard appealed.

🧠 Topics covered:

  • How to frame ERISA deadlines and regulatory violations in federal court
  • The real stakes of a standard-of-review battle
  • What happens when insurers blow their timelines—but want to preserve discretion
  • Why most long-term disability appeals aren’t just about medical records

This episode is a rare look behind the curtain into the actual legal battlefield that ERISA litigators operate in—and how strategy plays out when you're standing before a panel of federal judges.

If you take LTD cases—or refer them—this is essential listening.

Ben Glass is a nationally recognized personal injury and long-term disability insurance attorney in Fairfax, VA. Since 2005, Ben Glass and Great Legal Marketing have been helping solo and small firm lawyers make more money, get more clients and still get home in time for dinner. We call this TheGLMTribe.com

What Makes The GLM Tribe Special?

In short, we are the only organization within the "business builder for lawyers" space that is led by two practicing lawyers.

One thing we're sure you've noticed is that despite the variety of options within our space, no one else is mixing
the actual practice of law with business building in the way that we are.

There are no other organizations who understand the highs and lows of running a small law firm and are engaged in talking to real clients. That is what sets GLM apart from every other organization, and it is why we have had loyal members that have been with us for two-decades.




SPEAKER_01:

Welcome to the Renegade Lawyer Podcast, the show that challenges the way lawyers and professionals think about life, business, and success. Hosted by Ben Glass, attorney, entrepreneur, coach, and father of nine, this show is about more than just practicing law. For over 40 years, Ben has built a law firm that stands for something bigger. He's helped thousands of lawyers create practices that make good money, do meaningful work, and still make it home for him. Each week, Ben brings you real conversations with guests who are challenging the status quo. Lawyers, doctors, entrepreneurs, thinkers, and builders. These are people creating bold careers and meaningful lives without burning out or selling out. If you're ready to stop playing small and start thinking like a renegade, you're in the right place. Let's dive in.

SPEAKER_04:

Welcome back to the Renegade Lawyer Podcast. This episode is the recording of an oral argument that I had in the Fourth Circuit Court of Appeals in December. It's another ERISA long-term disability claim. We won it in the district court, both on the procedural side and the regulatory side, but also on the medical side. And in this argument, we spent almost the entire time diving deep into jurisprudence and regulations and the federal law of ERISA and standards of review. So you know, if you're not involved in this area of the law at all, it's probably a little boring and dry for you. If you dabble or take any of these cases at all, you should probably understand that sometimes they end up, or they should end up, if you know what you're doing, um, with arguments like these. And that's really, really important as to the standard of review. And it's really, really important as to being able to represent your client fully. These long-term disability appeals of claim denials are not just about the medical records. So you'll hear arguing first is Josh Bakarak. Josh is a Wilson Ellser attorney who's argued, he told me, over 60 cases at the Federal Court of Appeals levels. He's very, very good. He represents reliance standard. Since I won, I have the appellee position. So Josh argues, I argue, and then Josh argues again. So listen to this. If you're thinking about doing these cases, this is really important stuff to know. If you get these cases and you don't want to ever have to dive into the nuances of federal regulation, then just call us at Ben Glass Law. We'd happy to look at the case, help your client out, and pay referral fees. Okay, now on to the argument.

SPEAKER_08:

All right, we're ready to move on to our next case, which is uh Cogto versus Reliance Standard Life Insurance Company. And we'll first hear from Mr. Backrak.

SPEAKER_05:

Good morning, Your Honors. May please the court. I'm Josh Backrak. I represent the Appellant Reliance Standard, and I'd like to reserve five minutes of time for rebuttal. Uh this appeal challenges the district court's decision awarding disability benefits in an ORISA case. And we raise a number of arguments on the standard of review that was applied by the district court, we believe erroneously, but I don't think you even need to address that because the district court, under its de novo review, is clearly erroneous in its conclusion that disability benefits were uh should be awarded. So the parties agree the start date for this disability claim is June 7, 2022. And when we look at the record here, we see that six days before that start date, she's seeing her primary caregiver, who is her physician assistant. And that person is describing her condition at that time and in the past uh few months and says that she'd completed she had previously had COVID. Uh so but the doctor saying she had completed pulmonary therapy several months earlier and was doing good. That she was back to work full time on most days, her brain fog had resolved, and that's the big issue was that there were these cognitive complaints. Uh but that is.

SPEAKER_08:

Counsel, you're you're you're you're going directly to the merits of the total disability finding.

SPEAKER_05:

I am, Your Honor, initially, because I think it was clearly erroneous for the district court to find to make several findings and the ultimate finding that this person was disabled. I will get into the other arguments, but when we have the district court making conclusions that she she has um that she has tachycardia and that's part of her disability.

SPEAKER_08:

You should be sure to tab your argument because if we were to disagree with you on the merits part, we would need to resolve the other questions. Trevor Burrus, Jr.

SPEAKER_05:

100%, Your Honor. And I'm only going to spend a few minutes more on this. So the district court said she has tachycardia. Even if she does, uh which we don't think she does, how's that disabling? But in January of 2023, there's a full cardio evaluation and it's normal. The district court concluded that she had dysotonomia. That's also known as POTS. It causes dizziness, and that was a basis for finding disability, but the testing for POTS was negative. The district court said nobody said she's malingering, yet her own neuropsychological evaluation says there are significant signs of symptom exaggeration. So this the district court here made a number of these factual findings. There are test results throughout this period that were all negative. She did have complaints, but all the testing is negative. She's discharged from her therapist in August of 2022, within a few weeks or a few months of the start of the disability claim. So we think when you look at the record itself, this is clearly erroneous. But did the district court applaud the wrong standard of review? Definitely. Because the starting point on this is the language in the plan and the Supreme Court. In Glenn and in the Supreme Court case before that in Firestone, the Supreme Court stated that if the plan language includes a grant of discretion, the decision of the plan and its interpretations are reviewed for abuse of discretion. We all agree this plan has that language in it.

SPEAKER_08:

You are not challenging the validity of the regulation to set that 45-day period.

SPEAKER_05:

In certain ways we are, Your Honor, because when you look at the statute, because I don't see that in your briefing anywhere.

SPEAKER_08:

You challenge other things, but I don't see you challenging the lack of authority to set the 45-day period. You seem to agree to that. Trevor Burrus, Jr.

SPEAKER_05:

No, Your Honor, we do. In fact, we state well, let me take that back. Does the Department of Labor have uh through the statute um authority to enact regulations? Yes. And what are those re what does the statute say? You must provide a full and fair review during an appeal. So that's what is the the Department of Labor supposed to be doing.

SPEAKER_02:

Well is it your position under the ERISO regulations that uh uh under your plan uh the administrator is gr is granted unlimited uh unreviewable discretion in determining uh what special circumstances are?

SPEAKER_05:

That's correct, Your Honor. You're right, Judge Floyd.

SPEAKER_02:

So what gives like what gives your administrator the right to ignore the f 45-day requirement on special circumstances?

SPEAKER_05:

They didn't, Your Honor. That our position is they fully complied because they sent a 45-day letter before the first 45 days ended saying there are special circumstances we have to review all of your medical records.

SPEAKER_08:

Counsel, go take a step back. Take a step back. Because that goes to my question that I I still don't know the answer to. Is that initial 45-day period is set by the regulation a valid requirement? I believe it is. I believe it is as valid. So you're bound by the that an it will just stick with the initial 45 days. You're bound by that.

SPEAKER_05:

Unless there are special circumstances. Right. And then we have 45 more days under the regulation.

SPEAKER_08:

All right. So to follow up on Judge Floyd's question, what's the special circumstance in this case?

SPEAKER_05:

So the special circumstances in this case were the claimant has 180 days, but here she took 215 days to submit hundreds and hundreds of pages of medical records. They needed to be reviewed. They were reviewed initially by a nurse. That nurse said, you should have two specialists consider these records. And we don't have internal doctors who make these decisions. We're looking for the right answer, so we hire independent experts. And those independent experts, we go through a third-party vendor. Takes time to get that done.

SPEAKER_06:

I guess two questions. One is do you think, is it your position that the need to get outside experts in and of itself is a special circumstance, or was that um special circumstances due to factors in this case?

SPEAKER_05:

I think there are two parts to that. Um and I know counsels argued that getting medical reviews is never a special circumstance. The first answer to that, or is the first part of that, this answer, is that the regulation does not define what a special circumstance is. It only says, for example, if a hearing needs to be scheduled, that's it. So there's no defining statement in the regulation itself. My client has discretionary authority. And what the Tenth Circuit has stated, and other circuits as well have stated, that that discretion goes to whether you have special circumstances. The Brunner case out of the Fifth Circuit, which is a fairly recent case. The Tenth Circuit in home says that the plan has absolute discretion, sole discretion to decide if it has special circumstances. Why? Because judges aren't in the everyday job of deciding these claims. My client is, and it knows when it needs additional.

SPEAKER_06:

It sounds like you you're you're I'm not sure I got an answer to my question, Mark. I'm not criticizing you. You may be answering it indirectly. It it sounds like your answer is focusing on the fact that the regs permit the plan administrator to determine what are special circumstances. And so it uh which I think does maybe go to Judge Ford's question, is the the the the in your view, the plan gets to do that unless I guess what's what's the review standard? Do we review that de novo? Do we review that standard for abuse of discretion? What do we what what do we do? Aaron Ross Powell, Jr.

SPEAKER_05:

That's what the Holmes Court said out of the 10th circle.

SPEAKER_06:

So what's the answer? Just tell me the answer.

SPEAKER_05:

The answer is that it is reviewed for abusive discretion, and the district court didn't do it. It substituted its own judgment and said you don't have special circumstances.

SPEAKER_06:

What if um assume you're right there? How did you comply with the requirement and the regulations that you identify the time by which the review is going to be completed? Trevor Burrus, Jr.

SPEAKER_05:

Okay. Good question. The uh regulation also states that de minimis violations that do not cause prejudice. Trevor Burrus, Jr.

SPEAKER_06:

Okay. Assume I don't think it's de minimis, but uh for answering your question. So so it it it it it sounds like you're conceding you didn't do that, but you think it's de minimis.

SPEAKER_05:

Correct. I got there there was no prejudice to the claimant. She had counsel. Counsel knew what 45 and 45 is.

SPEAKER_06:

If it was if it was if our test was just prejudice, uh and I'm I'm some yeah, I think that's a fair point. It you know, that this was all done within the 45-day extra 45-day period, you got the answer. I mean if it was simply a prejudice question, that would might be one thing. But don't the regs define the minimus to have several parts, all of which must be met? And one is good calls, you know, due to circumstances not within your control? Well um, something like that.

SPEAKER_05:

No, that well, I may be Is that language in there, or is that how courts are treating it? It might be in there, but it is beyond our control because when we're trying to have independent reviews and we're contacting vendors to make sure that we're doing what the actual statute says, which is a full and fair review.

SPEAKER_06:

You did it within 45 days from the time you started. I mean, in other words, it Yeah. I don't know every tr the whole thing, but just timeline-wise, from the moment the records show you started handling the claim, it was all done within 45 days. So it doesn't look like this was something that was something that couldn't be done in 45 days.

SPEAKER_05:

Well, so uh and counsel says that we waited 35 days to for the appeal. That's incorrect because as soon as the appeal came in, it's going to a nurse. It went to the nurse. The nurse is the one who said, I think for a full and fair review, you should get experts in two different fields. Then they contact the vendors.

SPEAKER_08:

So it's But that was that was about a month later, though.

SPEAKER_05:

Um Well, the nurse review wasn't. The nurse review is within the initial time. The nurse review, my recollection is as soon as the claim comes in, within 10 days, there is a nurse who's reviewing it and giving this recommendation for the additional reviews.

SPEAKER_08:

Um Well, she completed her review on August the 23rd, and it was forwarded to the appeals department on September the 19th. In fact, the the the reason in your own records for the delay and ask and wanting to extend the 45-day period is a a delay in appeal referral, which kind of takes us back to the to the fundamental question, at least to me, is why is this case a special circumstance that differentiates it from any other disability case?

SPEAKER_05:

Aaron Ross Powell Well, I think that when a claimant submits several hundred pages of records and statements and everything, um, this isn't a routine case. The Queasenberry case talks about the need to review medical records, and that's what was done here. The Harrison case from this court talks about the need for an exchange of information. What the only language in the regulation is uh or in the statute is a full and fair review, right? That's what we were trying to do here. That doesn't mean three days after 45 days ends, you pull the rug out from the defendant, so you limit its ability to address what you've submitted. But I'd like to go to why I don't think the regulation can do what it purports to do, and that is to say you lose discretion. Because again, that is nowhere wrong.

SPEAKER_08:

And if counsel, in formulating your answer, let me let me put this out for your comment, which I think ties into the regulation. We've already established that that initial 45-day period set by the regulation is valid. So if we were just to assume that we disagreed with you that there was a special circumstance here, then it would appear to under the Firestone case and Justice Barrett's opinion in Fessenden that applying trust principles, there would be no exercise of discretion by the fiduciary, and therefore nothing to which discretion is owed. So if you could include that in your in your answer.

SPEAKER_05:

I think the starting point to this is the Supreme Court decisions where they have never held that you lose discretion under any circumstance. In the Glenn case, the court held that even a conflict of interest doesn't do away with discretion. It is just a factor to consider. In the Concrite case, you actually had a prior abuse of discretion on the same issue. And the court said you don't lose discretion still. So what courts have said, the McIntyre case from the Eighth Circuit, the Ian C case, IAN C period case out of the Tenth Circuit, what they say is, let's follow what the law says. You have firestone deference. And so this, which I think is less than a conflict of interest or a prior abuse of discretion, what we're saying, or what those courts are saying is you then just add it as a factor in whether there's an abuse of discretion. You cannot. In fact, the ENC case says that you cannot do away with Firestone discretion, that the regulations are wrong to put in language that there's a loss of discretion or it's not an act of discretion.

SPEAKER_06:

So if the what if the reg said if you don't answer on time, you are deemed to have admitted accepted or admitted the claim?

SPEAKER_05:

Trevor Burrus That goes well beyond what they are authorized to do under the statute and under the Loper Bright case from the Supreme Court last year. They can't do that. They have to follow the directive of the statute. The statute says nothing about says nothing about standard review either, but what the courts have said, that's for us to decide. It's not for the Department of Labor. And that was the ENC case also. It's not a good thing.

SPEAKER_02:

Well then, as to your uh Loper Bright argument, the DOL's interpretation of the regulation you're challenging specifically disclaims the Department intended to prescribe the deforts exercised by the reviewing court. Trevor Burrus, Jr.

SPEAKER_05:

Which I think is one of the most hypocritical statements that can be made because it says in the regulation that if it doesn't abide by these regulations, it is not an act of discretion. Discretion only matters for the standard of review. So that statement is disingenuous, in my opinion. Well, if it's true, what remains of your argument? Well, I don't think I don't think they have the right to say that. And my argument is, as the Eighth Circuit has said, as the Fifth Circuit has said, is you just look at whether it's a factor. Under Glenn, you still have to apply abusive discretion standard.

SPEAKER_02:

Trevor Burrus, Jr. But you have the Seventh Circuit. I mean, i the question here is we've used substantial compliance, and so the tr district judge used that uh found uh the standard to be de novo review, so that's what we're looking at. So if we took the Seventh Circuit uh approach, they don't use substantial compliance at all. They use a de novo review for any and all violations.

SPEAKER_05:

That was my next point, Your Honor, and you hit the nail on the head. Because this circuit doesn't follow strict compliance like the Seventh Circuit in Fessenden or the Second Circuit in England. Trevor Burrus, Jr. Because that's that goes against precedent from this court. In the Ellis versus Metropolitan Life case, Brogan versus Holland, this court said that substantial compliance is all that's required.

SPEAKER_06:

Trevor Burrus, Jr. And and I appreciate that. But did did that were those the were the cases that set that standard before the regulation that imposed de minimis review? Trevor Burrus Correct.

SPEAKER_05:

That is correct. But I don't see a difference in it, to be honest, because again, the overriding concern is a full and fair review.

SPEAKER_06:

Well, let me let me play that out for a second. So if um I mean i if before regulations our court adopts the substantial compliance standard, which you say does, I think that's understood, then regulations can't are enacted. And wouldn't our analysis be um okay uh uh the the Congress has delegated the the agency certain power, was it a proper delegation? Was this de minimis thing within the scope of the de delegation? If the answer is that's all you know permissible under you know delegation law, local bright and the whole you know delegation cases, wouldn't newly adopted regs just naturally then apply? It's not like I mean that it seems like that's and we would then be necessarily applying the regs. Now your next question is whether substantial compliance and de minimis are the same. I'm not sure they are, but I'm seeing your point. But is is that framework right that I just laid out?

SPEAKER_05:

I think so, but there are other considerations as well. And uh again, that is that the Supreme Court has never recognized an exception, and it's for the judges to decide whether exception to what? To w to deferential review when there is language in the plan. It has never found an exception. So that's why in McIntyre, the Eighth Circuit said we can't. In the Tenth Circuit case, they said we can't review this de novo. It just follows what Firestone says and Glenn is it's a factor to consider. I'd also add one more case to the mix here, because I think this goes to the heart of it as well, and that's Shedlack versus Braswell and also also the Weaver case, because in those cases, this court said that a procedural violation cannot result in a substantive remedy. But when you have a court saying that the standard of view now goes from deferential to de novo, and more importantly, or equally important, I guess, uh by the way, all that evidence that you still did within the additional 45 days, all those medical reviews, I'm not going to consider them, which this district court did, that almost guarantees you the claimant is going to win because their evidence is unrebutted on appeal. And that then means there's a substantive remedy.

SPEAKER_02:

But oh really, the whole purpose of ERISA was to keep the insurer's feet to the fire. And so if we allow unfettered discretion by the insurance company, what good is ERISA?

SPEAKER_05:

Well, ERISA also in the primary goal states that it is to uh to award claimants benefits due, and it's in the statute language too under A1B, benefits due under the terms of the plan. And again, A 1133 says what is its goal? That's that there must be a full and fair review. Full and fair review doesn't mean they get to put in everything they want and keep my client from addressing it or a court from considering it. So those to me are the big issues here. And um hopefully I have reserve sometime for you. Mr.

SPEAKER_08:

Backrack, we we've we've been very liberal with our time this morning. So um I think now we'll hear from Mr.

SPEAKER_07:

Glass, and you've got some rebuttal time. Thank you, Honor.

SPEAKER_03:

Good morning. Please record.

SPEAKER_04:

I'm Ben Glass on behalf of Heather uh Coxdale. Um so there's a lot there's a lot there, but I can't let the very first words out of my friend's uh mouth is that this claim starts on June 7 of 22. That's wrong. The claim starts a year earlier in August when she goes out on short-term disability when she has her first COVID. I don't know that it matters a lot for for what else I'm gonna say here, but that's wrong. He said we agree and we don't agree. It goes back to on the claim form, and the district court made this clear, is that she wasn't um under this mitre disability policy, she can't start getting her long-term disability benefits until her short-term disability and the mitre continuation plan are finished or exhausted. And that's why she puts down um 6722 as like the date my disability began. The case actually begins a year earlier. Second thing I want to um remind us all is that as we talk about these regulations, the regulations are embedded in this policy. So they are a part of if you look at the reliance party uh policy here, the regulations that talk about you know, the promise reliance makes is we're gonna we're gonna answer you in 45 days. Um if we need longer in the special circumstances, we're gonna and it tracks the regulations. All right. So we don't even really need to go to the regulations. And I can give you um judge, uh judges, um, it's um JA66 is part, it's uh it's part of the policy that says a review of adverse benefit decision, and it basically just doesn't incorporate by reference, it incorporates fully the regulations that we're talking about. But now let me just get to the big point I want to make here is that under the ERISA scheme, um claimants are told, look, if your application for life insurance or disability benefits or medical benefits are denied, you're not allowed to go directly to court. Number one, you have to go through this administrative process. Number two, if you go direct if you go to court, you don't get a jury trial like you would if this was just a regular old, I buy an insurance policy on the market and I have a dispute with you. And then when we go to court, we're giving the administrator, uh usually we're giving the administrator the benefit of the doubt, right? Uh discretion to determine benefits. And so in ext and this is what Justice Barrett, now Justice Barrett said in Fassenden. There's a quid pro quo. And in exchange for giving up what the sort of rights that we normally have when we have a reach a contract dispute, we're going to have a process that guarantees a fair decisional process. And part of the process is that there are time limits. Claimants have time limits. You have to give your notice of claim in time, or you're out. You have to give your proof of claim in time or you're out. If your claim is denied, Your Honor, um, and you don't file your appeal in 180 days, plan administrators, and we cited a case where my friends at Reliance do this they go, you didn't file your appeal in 180 days, you haven't exhausted remedies, you're out.

SPEAKER_08:

So there are timelines that govern um, but the the regulations that apply in this case are for disability. Yes, sir.

SPEAKER_07:

Not life or health or any, just just disability.

SPEAKER_04:

Yes. I've explaining the the big rubric, but the regulations the only difference though, the only difference though, the basic difference is that there's different like numbers of days in these different types of claims. Um and so Justice Barrett, not Justice Barrett says that there are timelines and deadlines for the insurance company or the plan administrator, usually an insurance company, as well. It's the 45 days. Again, that's embedded in this not embedded, it's stated clearly in the policy, it is a part of the insurance policy. And there's a way even for the plantrator to extend that if they need to, if there's a special circumstance. And the policy says this is how you can extend that time.

SPEAKER_06:

But so let's let's let's stop there and and talk about that for uh a minute. So as you know, there's a 45-day response period, and then there is an additional 45 days that you can get if you can comply. We'll come back to where they complied. Um There's no question, is there, that there was a decision within those 90 days, the combination of those two 45 days if they apply, right?

SPEAKER_04:

I think there's no question. I mean, that's uh uh objective fact true.

SPEAKER_06:

Yep, yes. So this isn't a situation where it went on and on. I mean, maybe maybe you still win, sure. But it was within the 90 days that the regs contemplate, correct?

SPEAKER_04:

If you take the steps, if you take the steps, if you if you're satisfied, yes, sir.

SPEAKER_06:

Trevor Burrus, Jr. So let's let's go to the steps. Um Yeah, it seems to me there's two issues there if you took the steps or if the reliance took the steps. Yes, sir. One is special circumstances, and one is maybe the more technical issue of do you like um identify the time you're gonna answer by. And um starting with special circumstances, it looks like the regs pretty clearly let the plan administrator decide special circumstances. I mean, that that's a decision for the plan administrator under the regs. You agree with that? No, I really don't. Uh, what it says, I mean unless the plan administrator determines that special circumstances require an extension. Okay, I'll give you a question. I'll give you that.

SPEAKER_04:

Okay, yes. Thank you for reading that to me. I'll give that to you.

SPEAKER_06:

I'm not you don't have to give me anything. I'm just trying to get the answer right.

SPEAKER_04:

But um so Yes, ask the rest of your question. Yes.

SPEAKER_06:

Well, I I'm trying to get the implication of that because we we later deal with this reg that says if you miss a deadline, it's deemed denied without discretion. And that to uh uh putting aside the the the challenge to that, that seems like that's talking about the decision about accepting or denying the claim. So I wonder whether this determination of special circumstances is affected by that. And and and do we still look at that? I don't know how. I don't know if it's a beast of discretion, I don't know if it's arbitrary and capricious, but it seems like Let me try to help. Excuse me.

SPEAKER_04:

Let me try to help. First of all, Judge Trenga did not rely on the reg on on any part of the regulation um changing the standard of review.

unknown:

Yeah.

SPEAKER_04:

Judge Trenger didn't mention that at all, didn't rely on it. Uh we didn't argue below. Uh Reliance didn't argue below that it had discretion to determine special circumstances either, right? Um so there's so that what Judge Trenga said is I read his opinion, and and this is actually this is the third reliance case my friend and I have been involved in uh where this issue has come up. Uh there's a case called Rupert in our briefs, was not appealed. Judge Trenga ruled they were late. De novo review, we win. Wansign is a case that we argued um Mr. Bakrak and I came here in March. We argued it was basically the same case. Reliance gets the file, they lose the file, they wait until the very last, almost the very last day. Um, and this court um a panel uh had an opportunity to say, uh, we're gonna follow the Seventh Circuit and the Sec Seventh Circuit and the Second Circuit. But it said, look, under any standard of review, under these facts of one song, uh the claimant wins. All right. This is very similar. Remember now, and I think I can get to answer your question, is um we filed.

SPEAKER_08:

You're gonna tell us, you're gonna tell us here, Council Hu, this is not a special circumstance in this case. Okay.

SPEAKER_04:

It's not a special circumstance because number one, every, every time an appeal, an administrative appeal is filed, the plan administrators are getting medical reviews, number one. Number two, this is of their own making, just like in Wansung, just like in RuPrick, like they they lost the file. They didn't do anything with it until we write a letter, because our practice is we file the appeal, and then shortly before the 45 days up, we write, Dear Reliance, your appeal is due in a few more days, just reminding you that we're gonna file suit. And that's in the claim notes, that's when the panic button was hidden.

SPEAKER_06:

So if that's right, how do we how do I'm still trying to get for the legal rule that how we're reviewing that? I know your argument about why this isn't special circumstances. But if it says unless the plan administrator determines that special circumstances exist, do we review that under what standard?

SPEAKER_04:

I think you review that. Let's see, under what standard? First you review first you have to ask yourself, did they actually say that in any of their letters? They just said we're taking the arcs of 45 days. They didn't, they didn't do the steps. Like there's a special circumstance, here's a special circumstance. Let me explain it to you and let me tell you when it's gonna do.

SPEAKER_06:

If they had said the special circumstances, if they had used those magic words and said, because we gotta get some r records. Imagine that's what happened. Sure. And um and and how do we review it? You I keep trying to get you to give me the standard of review for how we look at this special circumstances. I would I've asked like three times really like an answer.

SPEAKER_04:

I apologize. It's probably abuse of discretion. It's probably abuse of discretion. They never argued that in the district court, though. They never argued what you are your the hypothetical that you are giving me now, which is their reliance is saying, you know, this is a special case and a special circumstance. And I'm telling you, uh, and Judge Tranga found that this is normal. In fact, in the briefs in the under in the district court, Reliance said, Well, of course we had to go. We have all these records, of course we have to go and get uh and get medical reviews.

SPEAKER_08:

And then So you're well just to be sure I understand your answer to Judge Quadlebaum. In in this case, and I presume others like it, you would say that when the plant administrator says there's a special circumstance, then we the reviewing or the district court, or we as the reviewing court review that determination for an abuse of discretion under the facts of the particular case.

SPEAKER_04:

I think that has to be correct and they have to show their homework. In other words, they cannot just wrote say, we are declaring a special circumstance. And let me tell you, Mr. Glass, and let me tell you, district court judge, and perhaps appellate judges, let me tell you how we came to that decision. Because that's the only way a reviewing court under trust law can determine whether discretion was abused or not. You have to show your homework.

SPEAKER_08:

And my argument would be tell Tell us why there's an abuse of discretion in this case.

SPEAKER_04:

Because well, because A, they didn't uh show any homework. They didn't tell you why this case is special and different, B, because it's a problem of their own making, because they waited 42 of the 45 days, three, because every case uh goes out for medical reviewers, four, because when they did it, it only took them five days and then seven days to get the reports in that they then waited and held another three weeks, twenty days before they did anything with. And um so that that's why it would be an abusive discretion in this case. It would be wrong, in my view, for this court to say that we are gonna give the plan in light of the actual facts on the ground, the discretion here. We're gonna give them uh the right to say, we can send this form letter, we can extend the time um for another 45 days. And and one let me add one other argument that is that um Reliance never challenged the fact that we marched into court, right? They never challenged that this was deemed or denied at 45 days, giving us a pathway into court now, never after we are in court legitimately unchallenged, providing they providing additional medical reports to us, which under our under the system of ERISA, which is the quid pro quote trade-off, like we're entitled to have all of that before the 45 days expires so that we can call it.

SPEAKER_06:

What's your prejudice?

SPEAKER_04:

The prejudice, as Justice Barrett uh points out in Pheasenden, is that claimants are left not knowing um when um uh when or if the plan is going to make a decision, timely decision. Number two, we don't have a chance to rebut the um medical reports that they are supposed to give us on review so that we can comment on them before the final decision is made, all within the 45 or the 45 plus 45 days. So that's the one.

SPEAKER_06:

Help me let's slow down. So I want to make sure not us. Great. I'm just trying to make sure I understand that. So we we know at least the regs contemplate the ability to get forty-five extra days. Yes. And I and and I and I I know you're not contesting that uh uh a plan could retain outside counsel to get their views, right?

SPEAKER_04:

Uh outside uh doctors and doctors.

SPEAKER_06:

So that's what they do. Why does help me understand why the inability to uh respond to outside doctors is different here than it would be in any case. I mean, you uh you always are gonna have extra uh uh uh i in any case where you have uh um outside doctors, you know, presumably you might want to respond. I mean, I you could get time crunched by that under within the original 45 days if it had been done. I mean it seems like the way that works is if they do it and they comply with the 45 days or the 90 days and you need more time, you say I need more time to respond. Is that how it works?

SPEAKER_04:

When you say you, you mean me or you mean them, really?

SPEAKER_06:

Trevor Burrus, Jr. No, no. Trevor Burrus, Jr.: So you said the prejudice was uncertainty. Well, there's always uncertainty until there's a decision. Then you said that prejudice was, well, they don't have a time to respond. And I'm uh to the outside medical providers. And it seems to me you always have that issue whether it was in 45 days or not. And if you need and want more time, the claimant should ask for it.

SPEAKER_04:

Which well, but but but the regulations to balance the whole ERISA screen scheme, the regulations put the onus on the plant administrator to get that work done, which they proved in this case they could have had it done in days had they actually looked at the file when it came in, so that we can get our, if need be, rebuttal, doctors' comments, whatever, back to them before they uh before they reach their final decision.

SPEAKER_02:

Well, correct me if it if this is not right. Their letter of September 25, which is what we what we argued about, correct? I I I don't have well Well, let's just assume it you're fancy. This is what they said. Yes, sir. Following our initial review of the medical information provided and on the file, we have determined we will require an independent physician prior to the end of our review. Further, you are aware we are required to make decisions within 45 days of appeal. Then they ask you for the 45 days. We are the special circumstances. Is that your argument?

SPEAKER_04:

Exactly right. There's no special circumstance there. I mean that's just everyday routine. 100%. So 100%. Which could have been done on day two once they got to.

SPEAKER_02:

So why do you want to say uh unconfuse me. Okay talking about the trial judge reviewed this case de novo de novo. Yes, sir. And then a while ago you said that we would review this 45-day extension for abuse of discretion.

SPEAKER_04:

What what is it? Well, I think the question that uh that I was asked is if this is if this letter is a legitimate use of dis of choices or discretion that the plan administrator has, then it strikes me not thought and not having thought deeply on this before I got here, but it strikes me that you would review that action under an abuse of discretion standard. Judge Trenga said it's not special circumstance. Now what lens he put on his brain to reach that decision, I don't know.

SPEAKER_02:

Well, so how does how how does that affect his ultimate use of de novo review in in in deciding this case?

SPEAKER_04:

So I think it's two different things. I think the Well, that's why. Yeah, okay. So so thank you. So when we talk about um the trial judge, the district court judge using applying uh the standard of de novo, he's he's look he's asking the question, is their dis ultimate decision pay or not pay correct? If they follow all the rules, that scale is weighted towards the plan administrator. And if they don't follow the rules, if they miss deadlines, then the scale is back to balance, and we just look at the evidence and see what the greater weight of the evidence is.

SPEAKER_08:

Counsel, I thought your answer would have been based on the your earlier arguments that in looking at the initial determination of whether there's a special circumstance under the first 45 days, that the either the trial court or this court looks at that decision under an abusive discretion standard. And if the court determines that there was an abuse of discretion and there was no special circumstance, then the determination of whether the claimant is entitled to benefits, that would be a de novo determination by the district court, because under that theory, there is no action by the plan administrator to which, under trust principles, there would be any decision to which to give discretion.

SPEAKER_04:

So I hope that I've not confused the court, but that's exactly my position. At the end of the day, and this is what I think Judge Trenga arrived at, is that there is because he didn't remember, he didn't rely on the regulation that says the standard review changes, there's no decision to look back on to say. There's no final decision, obviously, to look back on to say, and to look at the homework and to say the plan appropriately looked at this case, weighed the evidence, took into consideration the competing views of the treating physicians. There's nothing there. And that's what Justice Barrett, I think, says in Fezzin. Yes, sir.

SPEAKER_06:

I'm sorry. It was just late. And you're saying the plan loses the benefit of its discretionary decision if it doesn't comply with the regs. And if the decision to deny is based on the regs, I think you're right. It's just a regulatory decision that there's no discretion given. It's just a a fact penalty consequence of noncompliance. Trevor Burrus, Jr.

SPEAKER_04:

And then the add-on to that would be, and whatever happened after we filed suit just doesn't count because we're what we're looking at at the end of the day is what um information the plant administrator had when it made its decision. In this case, the decision is deemed denied, and again, they don't contest that. It's deemed denied before any of this other evidence was even created.

SPEAKER_08:

Unless the give another question, Mr. Glass, we gave uh your opposing counsel a couple extra minutes and you're over a couple now. Would you like another minute to tell us anything else?

SPEAKER_04:

Uh and uh Your Honor uh Judge H. Thank you very much. No, I am I am good, thank you. Um I would ask that the the Discord's opinion uh be affirmed. Uh I and I would ask that this court do what it didn't do in one sign, which is set the rule so we know. So the bar, I mean, this is his life and my life are totally tied up in these cases until we retire. Uh but tell us what the rule is when a plan uh violates the timing regulations. That would be very helpful. Obviously, on behalf of my client, if the court takes the path that it did in Wansung, yes, absolutely, uh, under any standard of review, um, she was entitled um to benefits for her high cognitive job with a great policy that said you are disabled. If you can't work 40 hours doing your own occupation. This is like the of these group policies, this is like the a premier level policy. Um so unless the court has any other questions, I think I'm done. Thank you.

SPEAKER_07:

All right, thank you very much. Mr. Backrack, you've got some rebuttal time left.

SPEAKER_05:

Thank you, Your Honor. Um I think counsel's conceded at this point, but he yeah, actually my friend has given me another argument here, uh, and that is when he said that the special circumstances language is in the plan document itself, which it is. And since we have discretion to interpret the plan, that means we have discretion to decide if there are special circumstances, and that has to be reviewed for abusive discretion, something the district court did not do here. I think uh going to the next point where he questioned, he said this disability claim started earlier. I'm gonna quote from his brief. On page 12, as her conditions persisted beyond the STD period, she applied for long-term disability benefits in November 22, selecting June 7, 2022 as her date of loss. That's on page 12. So that's non-dispute. This June 7th date is the start. Uh the next point I would like to make deals with the actual two letters that uh invoked the special circumstances. The first one is JA202. It's on uh well, it's JA202, it's dated September 20th, and it identifies the host of information that was provided during the appeal, and it's significant. And it then says that we are still in the process of reviewing all of this and need to take additional time, uh, the additional 45 days. And that was then followed by the September 25 letter, uh J.A. 2024. So there are two letters explaining the special circumstances and identifying it, contrary to what my friend had said there. Uh the next point, council relies on Fessenden. In Fessenden, there was no decision within the 90 days. It is entirely different. Here, there was within the 90 days. So the fifth can I interrupt you there? Of course.

SPEAKER_06:

Um I hope I'm not you know cutting into your time too much. But um worries. We talked about this a little bit when you were up here the first time. And I'm in the um regulatory section about um you know de minimis violations. And and and as you noted, um you know the the the the the the benefits will not uh claims will not be deemed exhausted based on de minimis violations that do not cause and are not likely to cause prejudice or harm. And I understand your position quite well that there's no prejudice here, and I asked your colleague that, so I I don't need anything else on that. But then it goes on to say so long as the plan demonstrates that the violation was for good cause or due to matters beyond the control of the plan, can you tell me how you have demonstrated that the violation in the well assume I think the the letter was deficient in not identifying, not saying there were special circumstances and in the time period in not identifying the time period. How was that out of your how was that for good cause or due to circumstances out of the plan's control?

SPEAKER_05:

Important is that there's the word or one or the other. It's either one. Good cause. Harrison versus Wells Fargo, this court's decision. This court said that the full and fair review required under the statute, and that's what the regulation should be expounding on, says that there should be a back and forth with the claimant providing a fair and searching process. The fair and searching process for the answer, right? And so that means that we were looking to have this significant amount, uh JE 2020 and then 203 identifies all the evidence she submitted. And we wanted to have this reviewed by appropriate medical experts.

SPEAKER_06:

So that is So the good cause is essentially the same as the special circumstances that you got a bunch of stuff and you want some outside doctors to look at it.

SPEAKER_05:

Trevor Burrus To provide a full and fair review to the claimant, which is what the statute calls for. And I'd also add in the Harrison case, this court stated that the ERISA claim process should not be an adversarial proceeding. Cogdell made it that by filing a complaint within three days and saying, oh, we're going to hold you to your 45 days. You don't have special circumstances. Even before a letter was sent, she's setting this up. That is adversarial. And as counsel said, we've had this issue in other cases. Why? Because they're always setting this up. They're trying to get rid of the standard of review that should be applied here under Klan. So I think following the Harrison case, and you see that there was clearly a um a process to uh play games here by the claimant, that should not be condoned. I also um want to respond to some other arguments that were made. Counsel argued that she had no chance to rebut the new evidence we had during the appeal. Yeah, you didn't because you filed a lawsuit. We sent it to her prior to the 90 days, those new reports, those two expert reports, and said, if you would like uh to respond, please do. But she had already filed a lawsuit. We didn't know that at the time, by the way. We didn't know that. So um if she had waited through the process, she would have rebutted it. So that's not a concern. That's not a reason to uh to say that she was prejudiced or or there were any issues here. But I I have to go back again. For me, the important thing is, uh, and other courts have, as I mentioned, said this. Glenn requires the apply that you apply an abusive discretion standard here. The regulations I I don't think it's proper for them to make an attempt to avoid discretion based on a late decision. And as the Eighth Circuit said in McIntyre, it's a very recent decision. I think it's very helpful. At best, this is a factor under Supreme Court decision and the 10th Circuit in ENC, the same thing. Under Firestone, we have to give you deference. So, what does this mean if you're late? It's a factor for us to consider as a court. It doesn't do away with discretion. It can't do away with discretion. So I I think the arguments have been made here. I think the district court um abused its discretion. Well, actually, it didn't even do that. I think it applied the wrong standard to whether there are special circumstances. I think that it, and contrary to what I believe my friend said, that the court never said that it was applying de novo review because of the regulation wasn't filed, it's clearly stated in the opinion that's what happened. Um but again, there are a lot of issues to unpack here, but I keep going back to the two things. One is the Glenn case and Firestone. The second being, even if you look at this de novo decision, it is clearly erroneous under the facts. And I I appreciate the extra time that your honors gave me, unless there are additional questions.

SPEAKER_08:

Thank you very much, Mr. Macrack. I want to compliment both counsel on uh very good arguments and the difficult case. And I'll ask the clerk to uh adjourn court for the day, and Judge Quattabaum and Judge uh Floyd will give you the greetings of the court.

SPEAKER_00:

This article court stand adjourned until tomorrow morning. God save the United States in this honorable course.

SPEAKER_04:

If you were at the summit this past October, or if you missed it, we've put together complete summit notes for you at GLM Summitnotes.com. These aren't summaries, they're the exact strategies, quotes, frameworks, and action steps that the smartest firm owners in the room took home and are already implementing. And now we're taking all of that momentum straight into the 2026 GLM boot camps. Bootcamp is where you stop consuming ideas and start implementing. So grab the summit notes at GLM Summitnotes.com. Then join us at bootcamp. Let's make 2026 the year your law firm stops being a job and starts becoming the life you actually want to live.

SPEAKER_01:

That's it for today's episode of the Renegade Lawyer Podcast, where we're rewriting the rules of what it means to build a great law practice and a great life. If something sparked a new idea or gave you clarity, pass it on. Subscribe, leave a review, and share this with someone who's ready to think bigger. Want more tools, strategies, and stories from the trenches? Visit GreatLegalMarketing.com or connect with Ben Glass and the team on LinkedIn. Keep building boldly. We'll see you next time.

Head Shot

Ben Glass

Host