Donald Jebian v. Hewlett-Packard Company Employee Benefits Organization Income Protection Plan Erisa Plan
Opinion
Opinion
349 F.3d 1098 Donald JEBIAN, Plaintiff-Appellant, v. HEWLETT-PACKARD COMPANY EMPLOYEE BENEFITS ORGANIZATION INCOME PROTECTION PLAN; Erisa Plan, Defendants-Appellees. No. 00-56988. United States Court of Appeals, Ninth Circuit. Argued and Submitted December 3, 2001. Filed November 19, 2002. Opinion Withdrawn November 25, 2003. Opinion Filed November, 25, 2003. COPYRIGHT MATERIAL OMITTED Charles J. Fleishman, Beverly Hills, CA, for the appellant. Joseph P. Busch, III, Gibson, Dunn & Crutcher, Los Angeles, CA, for the appellee. Appeal from the United States District Court for the Central District of California; Ronald S.W. Lew, District Judge, Presiding. D.C. No. CV-99-09548-RSWL. Before: HARRY PREGERSON, A. WALLACE TASHIMA and MARSHA S. BERZON, Circuit Judges. 1 Opinion by Judge BERZON; Dissent by Judge TASHIMA. ORDER 2 The opinion and dissenting opinion, filed November 19, 2002, published at 310 F.3d 1173 , are withdrawn and replaced by the opinion and dissenting opinion filed concurrently with this order. Judge Pregerson and Judge Berzon have voted to deny Appellees' Petition for Rehearing and to reject Appellees' Petition for Rehearing En Banc. Judge Tashima has voted to…
lead Opinion
Berzon, J.
Opinion by Judge BERZON; Dissent by Judge TASHIMA.
ORDER
The opinion and dissenting opinion, filed November 19, 2002, published at 310 F.3d 1173 , are withdrawn and replaced by the opinion and dissenting opinion filed concurrently with this order. Judge Preger-son and Judge Berzon have voted to deny Appellees’ Petition for Rehearing and to reject Appellees’ Petition for Rehearing En Banc. Judge Tashima has voted to grant the petitions. The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. See Fed. R.App. P. 35.
The petition for rehearing is DENIED. The petition for rehearing en banc is REJECTED.
OPINION
On November 19, 2002, we issued an opinion reversing the district court and remanding for further consideration. Jebian v. Hewlett-Packard Co., 310 F.3d 1173 (2002). We stayed our mandate pending the Supreme Court’s ruling in Black & Decker Disability Plan v. Nord, — U.S. -, 123 S.Ct. 1965, 1969 , 155 L.Ed.2d 1034 (2003). We now issue a substituted opinion, reaffirming our earlier treatment of the appropriate standard of review in ERISA cases where benefits are “deemed denied” through…
dissent Opinion
Tashima, J.
dissenting.
I dissent because the majority forfeits an independent ERISA administrator’s plan-given authority to exercise its discretion when ruling on a plan member’s claim, simply because the administrator was late in ruling on a claim for benefits and, in doing so, creates an inter-circuit conflict. The majority acknowledges that the plan “explicitly grants discretion to decide appeals from denials of claims for benefits to the plan administrator.” Maj. op. at 1103. Further, the record reveals that the independent plan administrator, Voluntary Plan Administrator (“VPA”), did exercise its discretion in denying Jebian’s appeal. To apply the non-deferential, de novo standard of review solely because of a procedural irregularity is an extreme measure warranted neither by the facts of this case nor by the cases on which the majority relies. As I explain below, all of those cases involved circumstances very different from those presented here. On the contrary, the majority’s conclusion conflicts with all but one of the decisions that have dealt with the precise issue we face, as well as with the reasoning of our own precedent regarding the effect of procedural violations.