Recupero v. NE Telephone
Case Date: 07/07/1997
Court: United States Court of Appeals
Docket No: 96-2265
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UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ No. 96-2265 CHERYL T. RECUPERO, Plaintiff - Appellant, v. NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY, ET AL., Defendants - Appellees. ____________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Robert B. Collings, U.S. Magistrate Judge] ____________________ Before Bownes and Cyr, Senior Circuit Judges, and Keeton,* District Judge. _____________________ Lynn Thomas Johnson, with whom Blaine J. DeFreitas and Saab Law Firm were on brief for appellant. Lisa M. Birkdale, New England Telephone and Telegraph Company, for appellees. ____________________ July 7, 1997 ____________________ * Of the District of Massachusetts, sitting by designation. KEETON, District Judge. This appeal presents issues regarding the scope of jurisdiction of federal courts over claims for benefits under an employee benefits plan that is subject to regulation under the Employee Retirement Income Security Act (ERISA). In particular, we must decide what standards apply to judicial review of the decisions of the out-of-court decisionmakers in this case. Without doubt, in the circumstances of this case, as the parties agree, the district court had jurisdiction for judicial review of the out-of-court decisions, under 29 U.S.C. SS 1132(a)(1)(B) and 1132(c), for at least one purpose: to determine whether those decisions should be set aside as arbitrary and capricious. In turn, this court has jurisdiction, under 28 U.S.C. SS 636(c)(3) and 1291, to consider plaintiff-appellant's appeal from the district court's judgment for defendants. In cases involving this kind of judicial review, ordinarily the appropriate judgment for a district court to order is one or the other of two kinds. If the district court determines that the out-of-court decisions were arbitrary and capricious, the appropriate form of order is one remanding to the out-of-court decisionmaker for further proceedings to decide whether the claim or claims have merit. Otherwise, the usual form of order is a final judgment affirming the decisions of the out-of-court decisionmaker. In this case, however, appellees assert that "[t]he only salient issue before the court is whether the determination of the Committee to deny Recupero accident benefits was arbitrary and -2- capricious." (Appellee's Br. at 2.) Though acknowledging as a general matter the possibility of a remand "to the Committee for further consideration" (id.), in the end appellees request only a recognition that "the Committee's reasonable decision must be permitted to stand" and an order that the district court's summary judgment for defendant "be affirmed." (Id. at 22.) Appellant, also, seeks a final decision in this court. Thus, no party to the appeal asks for remand to the out-of-court decisionmaker (or even to the district court on conclusion of this appeal), except possibly as an alternative request, not clearly argued in the briefs and barely mentioned in oral argument apart from responses to questions from the court. Instead, the parties join in contending that, if we conclude that the out-of-court decisions were for some reason arbitrary and capricious, then we should (1) decide this controversy finally, or order the district court to do so, making any factual findings necessary to a decision on the merits, or (2) decide that the claim is finally resolved on grounds of some procedural bar, estoppel, or harmless error. In these circumstances, this appeal presents a fundamental question about the scope of jurisdiction of the district court and this court. After stating relevant background matter in Part I, we address this fundamental jurisdictional question in Part II, concluding that the courts do not have plenary jurisdiction to decide all questions bearing on the merits. In Part III we turn to other issues, over which we do have jurisdiction, and conclude that the judgment of the district court -3- against plaintiff-appellant is to be affirmed, though without approval of all details of the district court's reasoning. I. Background The incident that forms the basis for this civil action and this appeal occurred on January 18, 1990, while the plaintiff- appellant, Cheryl Recupero, was working for New England Telephone and Telegraph Company ("NET") as a Service Representative. The District Court recited, as an undisputed fact, that: At 9:30 am on January 18, she left her workstation on the sixth floor for the purpose of going for coffee at a shop on the ground floor. She entered an elevator and was injured in a mishap while in the elevator. (Recupero v. New England Telephone & Telegraph Co., Civil Action No. 94-12266-MLW, Memorandum and Order, Sept. 20, 1996 at 2.) As a result of injuries sustained in this incident, Recupero applied for benefits under the NET plan. (Id.) She was granted benefits under the Sickness provision of the plan, but was denied Accident benefits. (Id. at 3-4.) The NET plan provides that an employee is: [Q]ualified to receive [Accident Disability] payments on account of physical disability to work by reason of accidental injury ...arising out of and in the course of employment by the Company. (Id. at 3)(emphasis added). The plan further elaborates that: -4- Accidental injuries shall be considered as arising out of and in the course of employment only where the injury has resulted solely from accident during and in direct connection with the performance of duties to which the employee is assigned... (Id.)(emphasis added). The only limitation on the duration of payment of Accident Disability Benefits, under the terms of the plan, is that the employee remains unable to work. (Id. at 4 n.2.) The plan does not explicitly define what "sickness" is in the section providing for Sickness Disability Benefits, but does state that "sickness shall include injury other than accidental injury arising out of and in the course of employment by the Company." (Id. at 4)(emphasis added). Sickness Disability Benefits are subject to a duration limit of 52 weeks, under the terms of the plan. (Id. at 4, n.2.) NET paid and Recupero accepted 52 weeks of Sickness Disability Benefits. (Id. at 3.) The Benefits Office determined that Recupero was not entitled to Accident Disability Benefits because her injuries did not arise out of or occur in the course of her employment. (Id.) Recupero appealed this decision to the Employee Benefits Committee ("EBC" or "Committee"), which denied her appeal by letter on December 15, 1993, stating that "it was determined that there is evidence that you were not eligible for Accident Benefits for the incident report on January 18, 1990." (Id.) Recupero then filed an identical appeal with the Employee Benefits Claim Review Committee ("EBRC" or "Review Committee"), which also denied her appeal, stating that "after consideration of all available -5- information, including the information you provided, the [EBRC] has determined that there is no reason to reverse the original decision of the [EBC]." (Id. at 5.) Recupero filed a civil action for judicial review in the United States District Court for the District of Massachusetts. The district court assigned the case to Magistrate Judge Collings, under 28 U.S.C. S 636(c)(1) and Local Rules of the district. In the district court, Recupero contended that: (1) the EBC and the EBRC acted arbitrarily and capriciously by erroneously interpreting the provisions of the plan; (2) the Committees' denial of her claim lacked good faith; and (3) the Committees gave her inadequate notice of the denial. (Id. at 9.) The district court decided the case by ruling on cross motions for summary judgment. The court initially noted the appropriate standard of review, stating that the arbitrary and capricious standard applies where the benefit plan vests the fiduciary with the discretionary authority to determine benefits eligibility and to construe plan provisions. (Id.) The court then made the following determination: [T]he NET plan enumerates in sufficient detail the broad discretionary powers of both the EBC and the EBCRC necessary for application of the deferential standard of review. Thus, the rulings of the NET committees will not be disturbed unless the denials were arbitrary and capricious. (Id. at 8.) -6- The district court next examined in detail the various claims and contentions. Recupero, using the word "Committee" to refer to either or both of the Benefits Committee and the Review Committee, stated as her first argument that the Committee improperly categorized her injury as "off-duty" when it should have been treated as an "on-duty" injury. (Id. at 9.) This argument concluded with the assertion that it was not "rational" to classify incidents that occur during breaks, taken at a time required or directed by the employer, as being "off-duty" incidents. (Id.) The district court concluded (contrary to Recupero's contention) that the EBC and EBRC had not been arbitrary and capricious in interpreting the plan as defining break-time as "off- duty" time. The court stated: Recupero does not point to any language in the plan which indicates that the committee interpretation is not rational. Nor does she point to language which suggests that the scope of the Accident Benefits Provision should be given a broader reading and be applied when the injury occurs as a result of an otherwise non-job-related activity which is marginally motivated by a job-related exigency. On the contrary, and the defendants point out, the plain language of the plan militates for a far narrower reading. (Id. at 10-11.) The court below also emphasized that the definition of an injury that would qualify an employee for accident benefits had words of limitation, such as "only," "solely," and "in direct connection." (Id. at 11.) These words, the court reasoned, are -7- plain and unambiguous, and require that for an employee "to be eligible for accident benefits, the activity in which the employee is engaged at the time of injury must be a duty or responsibility required by her job." (Id.) Thus, the court concluded: It is an undisputed fact that Recupero was taking her break and going to get coffee at the time she sustained her injuries. Breaks fall outside the purview of the plain language of the Accident Benefit Provisions. Therefore, given that Recupero was on break at the time, her injury cannot be said to be a direct and sole result of her job responsibilities. (Id.) Because, as the court below viewed the matter, the plaintiff had failed to raise an issue of material fact, the court ruled that the Committees' interpretation was consistent with the language of the plan, and that the Committees did not act arbitrarily or capriciously in denying Recupero's claim. (Id. at 12.) Recupero's second contention below was that the Committees acted with a lack of good faith toward her because, she claimed, the EBC and the EBRC either never met to review her claim or failed to have a quorum present when they did meet. (Id.) The court below determined that Recupero's claim of lack of good faith was without evidentiary support in the record. (Id. at 13.) The final issue decided by the court below was whether the notices of denial sent to Recupero by the Committees conformed with the statutory requirements of ERISA. (Id.) Recupero contended that the failure of the Committees to include specific -8- reasons for denying her claim, or to cite to any specific plan provisions upon which the denial was based, precluded her from obtaining the information that was necessary for her to pursue her claim. (Id. at 14.) On the issue of notice, the court below concluded that: The denial letters sent to Recupero failed to conform strictly to the requirements set forth in ERISA, 29 U.S.C. S 33, and were insufficient as a matter of law. Nonetheless, as a practical matter, the letters were substantially sufficient to inform Recupero that her claim had been denied. (Id.) Having so concluded, the lower court then considered whether any remedy was available to Recupero for NET's failure to conform to the requirements of 29 U.S.C. S 33. (Id.) The court concluded that a remand to the EBC or the EBRC would be a useless formality because the evidence taken as a whole indicated that the denial of benefits was correct. (Id. at 15.) On this reasoning, the district court granted summary judgment for NET on all claims. Recupero appealed. No cross appeal was filed. II. The Scope of Jurisdiction in a Case Involving Judicial Review of Out-of-Court Decisions A. Circumstances of the Present Appeal As already noted, the district court had, and this court has, authority for judicial review of the out-of-court decisions that preceded commencement of this civil action in the district -9- court. 29 U.S.C. SS 1132(a)(1)(B) and 1132(c); 28 U.S.C. SS 636(c)(3) and 1291. Also, Recupero does not dispute that the judicial review is to be "de novo" and that she has the burden, in the circumstances of this case, of showing that the denial of her claim violated the "arbitrary and capricious" standard. (Appellant's Br. at 9, citing Firestone Tire and Rubber, Inc. v. Bruch, 489 U.S. 101, 113 (1989); Pagan v. NYNEX, 52 F.3d 438, 442 (2d Cir. 1995) (judicial review of decision by pension plan administrator to deny long-term disability benefits, where pension provisions gave the plan administrator broad discretion to determine eligibility issues and no material fact was genuinely in dispute; "we are not free to substitute our judgment for that of the NYNEX Committee as if we were considering the issue of eligibility anew," and as if free to upset a reasonable interpretation; court reviews only the decision of the NYNEX Committee and, even if plan provisions were drafted by NYNEX, which is an entity different from the NYNEX Committee, and were ambiguous, the rule contra proferentum is inapplicable); Diaz v. Seafarers Union, 13 F.3d 454, 456-57 (1st Cir. 1994) (trustees' decision denying retired seaman's claim for higher monthly pension benefit under Seafarers International Union's Pension Plan did not improperly apply the trustee rules about "break in service" that were promulgated pursuant to powers that the Plan instrument granted to the trustees); Stuart v. Metropolitan Life Ins. Co., 664 F. Supp. 619, 622-23 (D. Me. 1987) (declining to overturn recoupment from worker, of sum equal to lump-sum Social Security -10- payments, by insurer under Group Insurance Policy taken out by Plan)). Though the contentions of the parties about the scope of the jurisdiction of the district court and this court differ, all parties to this appeal urge us to take an exceedingly expansive view of the scope of the courts' jurisdiction in reviewing ERISA benefit determinations. Each party to this appeal, at least in the alternative, urges us to hold that the district court had jurisdiction not only to apply the arbitrary and capricious standard of review to at least some aspects of the out-of-court decisions, but also to make findings on material and genuinely disputed factual issues that allegedly should have been decided and were not. In essence, we are asked to decide on the merits, or direct the district court to decide on the merits, every material factual issue as to which the out-of-court decisions under judicial review are challenged. We are asked to exercise plenary jurisdiction of the most expansive form. We acknowledge that statements made about "de novo review" in some passages from authoritative sources, standing alone, may seem to support the parties' expansive jurisdictional contentions. We conclude, however, that a close examination of the entire array of relevant authority discloses that contentions of the parties in this respect flow from a misreading of Firestone, and a resulting misunderstanding of that case and its sequels. Such a misreading was anticipated by Justice (then Chief Judge) Breyer's opinion for the First Circuit in Diaz, 13 F.3d at 458. In -11- that case an argument was made that a Plan amendment, granting broad discretion to trustees, showed that the previous provisions of the Plan did not grant discretion that broad. The Diaz opinion responds that the amendment "merely made express a power ... plainly implied all along," perhaps because the trustees "wanted to play it safe in light of Firestone and the possibility that lower courts would later misread it." Id. The parties' expansive views about jurisdiction derive, at least to some extent, from their reading of what Firestone said about "de novo review." In that case, the Court declared: ... Consistent with established principles of trust law, we hold that a denial of benefits challenged under S 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. 489 U.S. at 115 (emphasis added). In several significant respects, the case before us in this appeal differs from Firestone. Nevertheless, in this case, one of the questions we must address may be stated in a generalized way in exactly the same phrase as that used by Justice O'Connor in describing the first of two questions before the Court in that case: "First, we address the appropriate standard of judicial review of benefit determinations by fiduciaries or plan administrators under ERISA." 489 U.S. at 105. The plans involved in Firestone were Firestone's three "pension and welfare benefit plans for its employees: a -12- termination pay plan, a retirement plan, and a stock purchase plan." Id. "All three of the plans were ... governed (albeit in different ways) by ERISA." Id. In our case, also, the NET plan is governed by ERISA, but in some respects by the same ERISA provisions that applied to the Firestone plans and in other respects by different ERISA provisions. One difference is that the Firestone plans were "welfare and pension plans," and the NET plan is not. Other differences emerge as we apply the reasoning of the Court in Firestone to the present case. Firestone determines that: [f]or purposes of actions under S 1132(a)(1)(B), the de novo standard of review applies regardless of whether the plan at issue is funded or unfunded and regardless of whether the administrator or fiduciary is operating under a possible or actual conflict of interest. 489 U.S. at 115. The role of the district court in applying the "de novo standard" is affected, however, by the terms of the particular plan at issue. For example, "if a benefit plan gives discretion to an administrator or fiduciary who is operating under a conflict of interest that conflict must be weighed as a 'facto[r] in determining whether there is an abuse of discretion.' Restatement (Second) of Trusts S 187, Comment d (1959)." Id. In this case, no party challenges the proposition that NET plan documents did give some discretion, subject to judicial review, to the EBC and EBRC. Nor does any party question that the Committees were acting on behalf of an entity that was, within the meaning of the statutory phrase, an "administrator or fiduciary." -13- Also, we do not understand the briefs of the parties as challenging the proposition that the Committees had some responsibility, and associated authority, with respect to "constru[ing] the terms of the plan," as that phrase is used in Firestone, 489 U.S. at 115. In any event, if this proposition is challenged, we conclude that the challenge is without merit. As previously discussed, when the benefit plan gives the administrator or fiduciary discretion to determine benefit eligibility or construe plan terms, Firestone and its progeny mandate a deferential "arbitrary and capricious" standard of judicial review. Id. Thus, a deferential "arbitrary and capricious" standard of review applies, even though the review is also to be "de novo review" to assure compliance of the out-of- court decisionmakers with standards of conduct analogous to those applied to trustees under judicially developed law (which Firestone adopts to fill the gap left because "ERISA does not set the appropriate standard of review for actions under S 1132(a)(1)(B) challenging benefit eligibility determinations."). 489 U.S. at 109. Because of the combination of similarities and differences between the circumstances in Firestone and the circumstances before us in this case with respect to the array of different plan provisions and with respect to which among ERISA's various provisions apply, however, we must be especially observant of the extent to which the Firestone "de novo standard of judicial review" requires de novo determinations by the reviewing court and -14- the extent to which, instead, it requires deference to an out-of- court decision that is not "arbitrary and capricious." An example of the kind of problems we must consider is the determination of the meaning of provisions of the NET plan regarding "eligibility for benefits" of various types -- in this case, "Sickness Disability Benefits" and "Accident Disability Benefits." Determining the meaning of such plan provisions ordinarily depends solely on deciding an issue of law with respect to manifested meaning of relevant provisions of the plan. A reviewing court, at least in the absence of plan provisions explicitly declaring otherwise, has authority to decide that a committee interpretation that varies from an unambiguously manifested meaning is arbitrary and capricious, and must be disregarded. If, instead, the reviewing court determines that the plan provisions are ambiguous or otherwise unclear, in some respect material to the outcome of the case, this determination of lack of clarity does not necessarily lead to treating the issue of meaning as one for decision by findings of fact in the district court (either by a jury or by the district judge). Instead, interpretive issues of this kind may be decided by the court as matters of law are decided, or they may be partly decided in court and partly on remand to the out-of-court decisionmakers, or applicable law may require some other allocation of decisionmaking functions. We say more on this subject in Parts II.B and II.C of this opinion, below. Summarizing, we conclude that in view of the Supreme Court's pronouncement in Firestone, it is no longer in dispute that -15- federal courts review some ERISA claims de novo. Even when de novo review is appropriate, however, it is often subject to some limitations. Thus, the phrase "de novo review," as used in the context of judicial review of out-of-court decisions of ERISA- regulated plan administrators or fiduciaries does not mean that a district court has "plenary" jurisdiction to decide on the merits, anew, a benefits claim. We use the term "plenary" to describe jurisdiction of the court to disregard completely an "out-of-court decision" the court is reviewing and itself (with or without participation by a jury) decide anew all questions of fact bearing on the merits of the benefits claim. B. Contrasting Court Roles Because of Limits on Jurisdiction 1. Limits Incident to Fiduciary Discretion Under Terms of a Benefit Plan With respect specifically to an issue regarding eligibility of a claimant for benefits, precedents recognize that district courts do not have expansive plenary jurisdiction to decide the merits of a claim anew if "the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan." Bellino v. Schlumberger Technologies, 944 F.2d 26, 29 (1st Cir. 1991) (quoting Firestone, 489 U.S. at 115); see also Martin v. Bissonette , 1997 WL 280602, *12 (1st Cir. May 29, 1997) (remarking, in the context of judicial review of state court determinations bearing upon habeas writs, "we find a myriad of situations in which -16- federal courts review others' decisions with a thumb on the scale ....[,] [t]he most conspicuous ... [being] judicial review of agency adjudications"). Thus, if an ERISA out-of-court decisionmaker is given some discretion, the court reviews at least some (if not all) aspects of the out-of-court decision only to determine whether that decision was arbitrary and capricious. This key point expressed in Bellino is entirely consistent with many earlier and later First Circuit decisions that recognize the authority of the court to be less deferential, or not deferential at all, of out-of-court decisions by fiduciaries to whom a benefit plan did not grant discretionary authority to decide the matter at issue. Smart v. Gillette Co. Long-Term Disability Plan, 70 F.3d 173, 181 (1st Cir. 1995) ("In ERISA cases ... court should scrutinize an ostensible waiver with care in order to ensure that it reflects the purposeful relinquishment of an employee's rights."); Hughes v. Boston Mut. Life Ins. Co., 26 F.3d 264, 267 (1st Cir. 1994) ("Where, as here, the administrator of an ERISA- regulated plan does not allege that it has discretion under the plan to interpret the terms of the insurance policy, judicial review of a denial of benefits entails no deference to the administrator's explanation of the plan ...."); Diaz, 13 F.3d at 456-58 (arbitrary and capricious standard of review applied to trustee rules promulgated pursuant to "broad, discretionary authority" granted to the trustee in the trust instrument); Rodriguez-Abreu v. Chase Manhattan Bank, N.A., 986 F.2d 580, 583-84 (1st Cir. 1993) (de novo standard properly applied where "the -17- relevant plan document did not grant discretionary authority to the Plan Administrator and the Named Fiduciaries did not expressly delegate their discretionary authority to the Plan administrator"); Allen v. Adage, Inc., 967 F.2d 695, 697-98 (1st Cir. 1992) (where nothing in the Plan indicates that another approach is to be used, it is appropriate for a reviewing court to afford de novo review). 2. Jurisdictional Limits in Federal Courts Generally An inquiry that is in essence jurisdictional is an appropriate early step toward full understanding of the meaning of the constitutional, statutory, and decisional mandates regarding the scope of the authority of federal courts in a case involving judicial review of an out-of-court claims decision. Article III courts and other federal courts are not courts of general jurisdiction. See, e.g., Owen Equip. & Erection Co. v. Kroger , 437 U.S. 365, 374 (1978). Even when some source of subject-matter jurisdiction appears of record (by reason of complete diversity of citizenship, for example, or the dependence of a claim on some federal question), federal courts are not automatically authorized to adjudicate every kind of related claim a party wishes to have decided. Rather, except as to instances of jurisdiction over claims of unconstitutionality of legislation, limits on the scope of jurisdiction of federal courts (other than the Supreme Court of the United States) are partly statutory. E.g. , Kokkone n v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994). -18- A central characteristic of federal jurisdiction is that it tends to be claim-based, and thus specific to claims, rather than case-based, and thus general to an entire case if the court has jurisdiction over any claim. See American Law Institute, Federal Judicial Code Revision Project, Tentative Draft No. 1, 33- 34 (Apr. 8, 1997) (Commentary). The Reporter for this ALI Project, Professor John B. Oakley, in an introductory Memorandum to the Members of the Institute, identifies as an organizing principle used from an early stage of the history of this ALI Project, the observation that: subject-matte r jurisdiction of the federal district court operates on a 'claim- specific' basis that is concealed and confused by the 'action-specific' language of the basic statutory grants of original jurisdiction to the district courts. Id. at xvii. He adds: .... Although the basic statutes purport to confer federal jurisdiction over particular types of 'civil actions,' 'cases,' 'proceedings,' and the like, they have been administered on a claim-specific rather than action-specific basis, with the law of supplemental jurisdiction functioning in the background as the mechanism for determining which claims joined to a particular action that do not directly involve the kinds of issues or parties within the scope of Article III are nonetheless within federal judicial power because of their relationship to other claims involving issues or parties that fall within Article III's criteria. Id. at xviii. We interpret "action," as used both in this passage and in a passage of the F irestone opinion, quoted above, as meaning "civil action," not "cause of action." Professor Oakley adds that -19- these background themes are a part of the complex "structure of federal jurisdiction," commonly recognized as involving constitutiona l, statutory, and decisional "tiers" of authorization and limitation. Id. at 36-45. We conclude that a theme of claim-specific limitations on the scope of federal judicial power extends also to a distinction between plena ry jurisdiction, in a broad sense including authority to decide anew on the merits, and a more confined type of jurisdiction over a specific type of claim within the court's jurisdiction. A district court's subject-matter jurisdiction over a claim may be solely for judicial review of an out-of-court decision on the merits of the claim. This kind of limitation is primarily statutory in origin. It may be implicit, for example, in a statutory authorization for judicial review over out-of-court substantive decisions (of many different types) made by governmental agencies, under provisions of the Administrative Procedure Act, 5 U.S.C. S 706(2)(A). Also, this kind of limitation may be implicit in statutory provisions for judicial review of special kinds of out-of-court substantive decisions made by private decisionmakers such as those acting under employee benefits plan, making decisions reviewable in this case under ERISA, 29 U.S.C. SS 1132(a)(1)(B) and 1132(c). In a regime characterized in large part by limited jurisdiction, a statutory authorization for judicial review of out- of-court decisions does not imply authorization for a court to expand its jurisdiction to a plenary authority to decide, itself, -20- all genuinely disputable factual issues decisive of the merits of claims. This point applies both to a court's acting on its own initiative and to a court's acting upon a consensual request by the parties that a court accept an expansion of its jurisdiction. We say more about consensual requests in Part II.E, below. Also, to understand fully a source of authority regarding the scope of a court's jurisdiction when judicially reviewing an out-of-court claims decision, one must take account of the distinctive nature of a court's role in judicial review, in contrast with the role of a court in other civil actions generally. A civil action for judicial review of an out-of-court decision is fundamentally different from a paradigm civil action asserting tort, contract, or property claims, or even alleged rights to equitable or declaratory relief. In cases of judicial review, ordinarily no right to jury trial is involved, and no need or authority exists to make factual findings of the kind regularly made by a jury, or by the trial judge in a nonjury trial. If a need exists for deciding disputable factual issues in the course of judicial review of an out-of-court decision on the merits of a benefits claim, typically that need is associated with a dispute about the "record." We turn next to considering disputes of this kind. C. Deciding Disputes About the "Record" 1. The Contrast Between Disputes About the "Record" and Disputes About the "Merits" -21- Deciding disputable factual issues about what is or is not properly a part of the "record" for judicial review is fundamentally different from deciding disputable factual issues going to the merits of a benefits claim. The out-of-court decision under judicial review in this case was, or at least in ordinary circumstances should have been, a decision on the merits. The standard of judicial review of that decision, in whatever way it may be phrased and described, is to some extent deferential in the sense that the reviewing court is not to set aside a factual finding of historical fact for which the record on which the decision was made contained adequate support. Ordinarily the deference to a decision on the merits extends also to deference to an evaluative inference on which the decision on the merits depends, at least unless the inference is a mixed-legal-factual inference. Just as appellate courts tend to give somewhat less deference to a trial court's mixed-legal-factual inference -- see, e.g., AIDS Action Comm. of Mass., Inc. v. Massachusetts Bay Transp. Auth., 42 F.3d 1, 7 (1st Cir. 1994) (appellate court accords significant deference to trial court's factual determinations and most of its resolutions of mixed fact/law issues, letting them stand unless they are clearly erroneous, but engages in de novo review of trial court's application of a First Amendment standard to the facts of the particular case); In re Extradition of Howard, 996 F.2d 1320, 1328 (1st Cir. 1993) ("The standard of review applicable to mixed questions usually depends upon where they fall along the degree-of- -22- deference continuum; the more fact-dominated the question, the more likely it is that the trier's resolution of it will be accepted unless shown to be clearly erroneous.") -- so likewise a court engaged in judicial review of an out-of-court decision may tend to give less deference to an inference-based decision that appears possibly to have been influenced by a mistake about the existence or meaning of an applicable legal rule or about how the legal rule applies in the particular instance. In applying such a less deferential standard, however, a reviewing court is not authorized to make, itself, a new decision replacing every factual finding of the out-of-court decisionmaker that goes to the merits and is challenged. The judicial review of the decision on the merits continues to be to some extent deferential. In contrast, the trial judge's decision of a dispute about the record is typically not deferential. A factual dispute about the record of an out-of-court decision of a claim under an employee benefits plan may involve a contention, by either party, that the "record" as produced by the decisionmaking entity contains documents or descriptions of non- documentary evidence not considered before the challenged decision was made, or documents or descriptions of evidence not properly considered (which one party or the other asks the trial court to "strike" or otherwise treat as irrelevant to judicial review). Obversely, the dispute may involve a contention that the record for the out-of-court decision should have included, and did not, -23- additional materials (which one party or the other asks the trial court to rule must be taken into account). If, after taking such a supplementation of the "record" into account, the trial judge determines that, by reason of departures from fair process, the challenged out-of-court decision cannot be affirmed, one obvious possibility is an order of remand for reconsideration by the committee or other entity that made the procedurally flawed out-of-court decision. That form of remedy fits. Concerning a court's obligation generally, in framing relief, to fashion a remedy that fits and does not overburden a party, see, e.g., California v. Yamasaki , 442 U.S. 682, 702 (1979) (injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs); E.E.O.C. v. Astra U.S.A., Inc., 94 F.3d 738, 746 (1st Cir. 1996) (same). First, the remedy for the departure from fair process is easily framed to fit within the authorized scope of judicial review. Second, the nature of the remedy matches the nature of the error. Moreover, if the error was solely an error of the committee or other deciding entity, any other form of order is likely not to fit because it tends to place an undeserved burden or disadvantage on one party or the other. We leave to be considered in Parts III.C and III.D of this opinion a defense contention in this case that if the record failed to contain evidence that would have supported plaintiff's -24- claim, plaintiff failed to use her available opportunities to proffer more evidence. To complete an explanation of the contrast between deciding disputes about the merits and deciding disputes about the record, we must take account of legal authority bearing on who is to decide a dispute about the record and by what procedures. 2. Who Decides? As to who is to decide a dispute about the record, we canvass three possibilities (and variations on each) that are apparent in this case: (1) the out-of-court decisionmaker on remand from the district court; (2) the court or courts where judicial review occurs; and (3) a jury (or trial judge as finder of fact in a nonjury proceeding), guided on the law by the trial judge's rulings, those rulings being subject to correction on appeal. The first possibility (remand to the out-of-court decisionmaker) may sometimes be appropriate, but is likely to result in delay, and perhaps very extended delay and expense if the dispute is not resolved to the satisfaction of all interested parties, and promptly. That kind of delay is inconsistent with the objective of providing workers and their dependents an inexpensive and expeditious method of resolving disputes over benefits claimed under an employee benefits plan. This is one of the multiple objectives underlying ERISA. See, e.g., Quesinberry v. Life Ins. Co. of North America, 987 F.2d 1017, 1023-1025 (4th Cir. 1993) -25- (citing Perry v. Simplicity Eng'g, 900 F.2d 963, 966 (6th Cir. 1990)). The availability of the third possibility -- jury trial -- in ERISA cases is a matter on which many courts have spoken but in ways that may reasonably be understood as creating some unresolved conflicts. E.g., compare Turner v. Fallon Community Health Plan, Inc., 953 F. Supp. 419 (D. Mass. 1997), with Padilla De Higginbotham v. Worth Publishers, Inc., 820 F. Supp. 48 (D.P.R. 1993). We do not speak further to this conflict in this opinion, for the reason that in any event the record before us fails to show any disputable issue of fact appropriate for submission to a jury in this case, as we |