1. Constitutional Law: Criminal Law. Whether speech that leads to a criminal conviction is protected by the First Amendment is a question of law.
2. ____: ____. The First Amendment limits a state's ability to prosecute certain criminal offenses.
3. Constitutional Law. The First Amendment protects wide swaths of speech, but its protections are not absolute.
4. Constitutional Law: Libel and Slander: Obscenity: Criminal Law. The First Amendment does not apply to libel, obscenity, incitements to imminent lawlessness, true threats, and fighting words.
5. Constitutional Law: Disturbing the Peace. A state may constitutionally regulate epithets likely to provoke the average person to retaliation, and thereby cause a breach of the peace.
6. ____: ____. To fall within the First Amendment exception for fighting words, speech must be shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.
7. Constitutional Law. Words must do more than offend, cause indignation, or anger the addressee to lose the protection of the First Amendment.
8. Constitutional Law: Criminal Law: Statutes. The State cannot constitutionally criminalize speech under Neb. Rev. Stat. § 28-1322 (Reissue 2008) solely because it inflicts emotional injury, annoys, offends, or angers another person.
9. Constitutional Law. In determining whether "fighting words" are unprotected speech under the First Amendment, it is the tendency or likelihood of the words to provoke violent reaction that is the touchstone of the test under Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S. Ct. 766, 86 L. Ed. 1031 (1942), and both the content and the context of the speech are relevant considerations to that determination.
10. Constitutional Law: Disturbing the Peace. Even when criticisms of public figures are outrageous, if they fall short of provoking an immediate breach of the peace, they are protected by the First Amendment.
11. Constitutional Law. The First Amendment affords the broadest protection to political expression in order to assure the unfettered interchange of ideas for bringing about political and social changes desired by the people.
CONNOLLY, J.
SUMMARY
The State convicted the appellant, Darren J. Drahota, of a breach of the peace based on two e-mails he sent to William Avery, his former political science professor and a candidate for the State Legislature. The e-mails — laced with provocative and insulting rhetoric and with the Iraq war as a background — suggested that Avery was a traitor and that he sympathized with Al Qaeda, a terrorist organization.
We are asked to decide whether Drahota's e-mails were protected speech under the First Amendment. The Court of Appeals determined that the First Amendment did not protect Drahota's speech because the e-mails were "fighting words," an exception to free speech protection. We disagree. Drahota's rants, although provocative and insulting, were not fighting words. We reverse, and remand because the First Amendment protects Drahota's speech.
State v. Drahota, 17 Neb. App. 678, 772 N.W.2d 96 (2009).
BACKGROUND
In January 2006, Drahota began an e-mail correspondence with Avery, who was then a political science professor at the University of Nebraska. Drahota sent the e-mails to Avery's university-issued e-mail account. Although the correspondence between the two consisted of 20 e-mails, we emphasize that the State convicted Drahota only on the last two e-mails. But we discuss the previous e-mails to put the last two in context.
It is clear from the record that Drahota and Avery shared a passion for politics. At the time, Avery was running for the Nebraska Legislature, and he is now a member of that body. The first 18 e-mails between the two dealt with current issues in politics, including the war on terrorism, the Bush presidency, and the Clinton impeachment. Drahota's tone was provocative and confrontational. For example, Drahota asserted, among other things, that those who support liberal causes have a mental disease and that liberals desire the destruction of America.
In early February 2006, the exchange came to a head. Drahota sent Avery a lengthy e-mail suggesting that indiscriminately massacring those living in the Middle East would save American lives after first suggesting that Democrats, including Avery, were full of hate. Avery responded:
I am tired of this shit. You have accused me of being anti-American, unpatriotic, and having a mental disorder, among other things. I find this offensive and I will not engage in anymore of this with you. I served my country in uniform honorably for four years. How many have you served? Since you are so pure, so pro-American, so absolutely correct, and wonderfully patriotic, I suggest you sign-up for duty in Iraq right away and put all your claims to the test. But, of course, you will not do that. You, Michael Savage, and the "Chicken Hawks" in the Bush Administration don't have the guts!!
Drahota responded:
Fuck you! You don't know me one bit. You are a liberal American coward. If it were up to you, you would imprison Bush before bin Laden because you have such a fascination with it. I am tired of your brainwashing students who are in the process of molding their minds. I spent 18 months in Pensacola Florida before I was honorably discharged for a neck injury. You can go fuck yourself if you are going to get that way. I'd kick your ass had you said that right in front of me, but YOU don't have the guts to say that. If you think you do, just try me. You have done nothing for this country, but bad things in recent years. Once again, if you have the courage to say that to my face, I'll let you do it, but don't you EVER talk anything about the military with me. We call you people turncoats and I'll be dammed if I'm going to take that kind of disrespect from someone who is so clueless as to my military background. As long as we're on the topic, how many years did your hero Clinton serve? You contradict yourself so much that I want to puke. Your website is
also a farce. You lie so much and don't show the true you. I guess, you're a politician.
You've really pissed me off[.]
Drahota later sent Avery an apology. Avery, unmoved by the apology, asked Drahota not to contact him again. He warned Drahota that he would contact the police if he received anything else of that nature.
Four months later, in June 2006, Avery received two anonymous e-mails from the address "averylovesalqueda@ yahoo.com." The State convicted Drahota based on these e-mails. The subject line of the first e-mail was "Al-Zarqawi's dead. . . ." The e-mail read:
Does that make you sad that the al-queda leader in Iraq will not be around to behead people and undermine our efforts in Iraq? I would guess that a joyous day for you would be Iran getting nukes? You, Michael Moore, Ted Kennedy, John Murtha, and the ACLU should have a token funeral to say goodbye to a dear friend of your anti-american sentiments.
Two days later, Avery received a second e-mail from the same address. The subject line was "traitor." It read:
I have a friend in Iraq that I told all about you and he referred to you as a Benedict Arnold. I told him that fit you very well. GO ACLU!!!!!!!!!!!!!!! GO MICHAEL MOORE, GO JOHN MURTHA!!!!!!!!!!!!! By the way, I am assuming you are a big fan of Murtha's, and antimarine like him, but being a big liberal, don't you support those Marines that are being jailed without charges at Camp Pendleton. Oh, I forgot, they are not Al Queda members so you and the ACLU will not rush to their defense. I'd like to puke all over you. People like you should be forced out of this country. Hey, I have a great idea!!!!!!!!!!!!!!!!!!! Let's do nothing to Iran, let them get nukes, and then let them bomb U.S. cities and after that, we will just keep turning the other cheek. Remember that Libs like yourself are the lowest form of life on this planet[.]
After receiving these e-mails, Avery contacted the Lincoln Police Department. The police traced the e-mails to a computer owned by a woman with whom Drahota was living. When contacted by the police, Drahota admitted sending the e-mails.
The State charged Drahota in Lancaster County Court with disturbing the peace. After a bench trial, the court found him guilty and fined him $250. After an unsuccessful appeal to the district court, Drahota appealed to the Court of Appeals.
Neb. Rev. Stat. § 28-1322 (Reissue 2008).
In rejecting Drahota's First Amendment challenge and affirming his conviction, the Court of Appeals determined that Drahota's speech constituted unprotected "fighting words." We granted Drahota's petition for further review.
ASSIGNMENTS OF ERROR
Drahota asserts that the Court of Appeals erred in finding (1) that his e-mails constituted a breach of the peace and (2) that they were not protected by the First Amendment.
STANDARD OF REVIEW
Whether speech that leads to a criminal conviction is protected by the First Amendment is a question of law.
See State v. McKee, 253 Neb. 100, 568 N.W.2d 559 (1997).
ANALYSIS
Drahota argues that the First Amendment protects his e-mails. The First Amendment provides, in relevant part, that "Congress shall make no law . . . abridging the freedom of speech. . . ." The First Amendment limits the state's ability to prosecute certain criminal offenses.
U.S. Const. amend. I.
See, e.g., U.S. v. Popa, 187 F.3d 672 (D.C. Cir. 1999); Tollett v. United States, 485 F.2d 1087 (8th Cir. 1973); McKee, supra note 3; State v. Suhn, 759 N.W.2d 546 (S.D. 2008); State v. Fratzke, 446 N.W.2d 781 (Iowa 1989).
[3,4] The First Amendment protects wide swaths of speech, but its protections are not absolute. Historically, the Supreme Court has held that the First Amendment does not to apply to certain categories of speech. These categorical exceptions include libel, obscenity, incitements to imminent lawlessness, true threats, and fighting words. As noted, the Court of Appeals determined that the First Amendment did not protect Drahota's speech because it fell within the exception for fighting words.
Virginia v. Black, 538 U.S. 343, 123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003).
New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964).
Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973).
Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 (1969).
Black, supra note 6; Watts v. United States, 394 U.S. 705, 89 S. Ct. 1399, 22 L. Ed. 2d 664 (1969).
Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S. Ct. 766, 86 L. Ed. 1031 (1942).
OFFENSIVE SPEECH DOES NOT LOSE ITS CONSTITUTIONAL PROTECTION
In concluding that Drahota's speech constituted fighting words, the Court of Appeals relied on our decision in State v. Broadstone. In Broadstone, we affirmed the defendant's breach of the peace conviction under the fighting words exception to First Amendment protection. We quoted the U.S. Supreme Court's decision in Chaplinsky v. New Hampshire to explain that fighting words are unprotected speech:
State v. Broadstone, 233 Neb. 595, 447 N.W.2d 30 (1989).
Chaplinsky, supra note 11.
"`[F]ighting' words [are] those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. `Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the
Constitution, and its punishment as a criminal act would raise no question under that instrument.'. . ."
Within this quote from Chaplinsky, there are two descriptions of fighting words. The first refers to words whose "`very utterance inflict[s] injury.'" The other refers to words which "`tend to incite an immediate breach of the peace.'"
But in Chaplinsky, the state court had construed the statute — which prohibited speaking offensive words to a person in a public place — to apply only to speech likely to provoke retaliation. So although the Supreme Court defined fighting words in the alternative, it only upheld the statute's constitutionality as limited by the state court. Specifically, the Court held that a state may constitutionally regulate epithets likely to provoke the average person to retaliation, and thereby cause a breach of the peace.
See Purtell v. Mason, 527 F.3d 615 (7th Cir. 2008).
Chaplinsky, supra note 11.
We recognize that some of our statements in Broadstone could be read to permit a broader application of the fighting words exception. But we decline to interpret our holding broadly because the Supreme Court has largely abandoned Chaplinsky's, "inflict injury" standard.
The Seventh Circuit has recently summarized the case law and legal commentary on this issue:
In later cases, the Court has either dropped the "inflictinjury" alternative altogether or simply recited the full
Chaplinsky definition without further reference to any distinction between merely hurtful speech and speech that tends to provoke an immediate breach of the peace. . . .
Although the "inflict-injury" alternative in
Chaplinsky's definition of fighting words has never been expressly overruled, the Supreme Court has never held that the government may, consistent with the First Amendment, regulate or punish speech that causes emotional injury but does
not have a tendency to provoke an immediate breach of the peace. . . . The justification for "plac[ing] fighting
words outside the protection of the First Amendment" is not their capacity to inflict emotional injury — many words do that — but their tendency "to provoke a violent reaction and hence a breach of the peace."
In fact, it was only 7 years after Chaplinsky that the Court began to retreat from the "inflict injury" part of the definition. In Terminiello v. Chicago, the Court stated that a conviction could not rest on the grounds that the speech merely "stirred people to anger, invited public dispute, or brought about a condition of unrest." To fall within the First Amendment exception for fighting words, speech must be "shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest."
Terminiello v. Chicago, 337 U.S. 1, 5, 69 S. Ct. 894, 93 L. Ed. 1131 (1949).
Id., 337 U.S. at 4.
Similarly, in Gooding v. Wilson, the Court held that a breach of the peace statute was overbroad because it was not limited to fighting words. The Court reasoned that because the statute could be applied "to utterances where there was no likelihood that the person addressed would make an immediate violent response, it is clear that [the statute is not limited] to `fighting' words defined by Chaplinsky." In effect, the Gooding Court read the "inflict injury" prong out of the definition. Lower courts have followed the Supreme Court's lead. "It is now clear that words must do more than offend, cause indignation or anger the addressee to lose the protection of the First Amendment."
Gooding v. Wilson, 405 U.S. 518, 92 S. Ct. 1103, 31 L. Ed. 2d 408 (1972).
Id., 405 U.S. at 528.
See, e.g., Purtell, supra note 15. See, also, Brooks v. N.C. Dept. of Correction, 984 F. Supp. 940 (E.D.N.C. 1997).
Hammond v. Adkisson, 536 F.2d 237, 239 (8th Cir. 1976).
We agree. We hold that the State cannot constitutionally criminalize speech under § 28-1322 solely because it inflicts emotional injury, annoys, offends, or angers another person. Accordingly, we cannot affirm Drahota's conviction merely because Avery found it offensive.
DRAHOTA'S SPEECH WAS NOT LIKELY TO PROVOKE AN IMMEDIATE BREACH OF THE PEACE
The U.S. Supreme Court in Chaplinsky held that a state could regulate speech that tends to incite an immediate breach of the peace. Although the Supreme Court has not upheld such a conviction since Chaplinsky, other courts, including this court, have done so. In upholding such convictions, we have stressed that the right to use abusive epithets of "`slight social value'" is outweighed by the State's strong "`interest in order.'"
Note, The Demise of the Chaplinsky Fighting Words Doctrine: An Argument for Its Interment, 106 Harv. L. Rev. 1129 (1993).
E.g., Broadstone, supra note 12; State v. Robinson, 319 Mont. 82, 82 P.3d 27 (2003); State v. Szymkiewicz, 237 Conn. 613, 678 A.2d 473 (1996); In re Alejandro G., 37 Cal. App. 4th 44, 43 Cal. Rptr. 2d 471 (1995); State v. Creasy, 885 S.W.2d 829 (Tenn. Crim. App. 1994).
Broadstone, supra note 12, 233 Neb. at 600, 447 N.W.2d at 34, quoting Chaplinsky, supra note 11.
Indeed, "[i]t is the tendency or likelihood of the words to provoke violent reaction that is the touchstone of the Chaplinsky test. . . ." And both the content and the context of the speech are relevant considerations to that determination.
Lamar v. Banks, 684 F.2d 714, 718 (11th Cir. 1982).
See, FCC v. Pacifica Foundation, 438 U.S. 726, 98 S. Ct. 3026, 57 L. Ed. 2d 1073 (1978); Hess v. Indiana, 414 U.S. 105, 94 S. Ct. 326, 38 L. Ed. 2d 303 (1973).
As noted, we upheld a disturbing the peace conviction in Broadstone. But we do not believe the facts in Broadstone support the Court of Appeals' conclusion that Drahota's speech constituted fighting words. In Broadstone, the defendant was standing outside an elementary school, shouting obscenities in the presence of children who were leaving school. A man waiting for his daughter crossed the street and asked him what he was doing. The defendant replied that it was none of his "`fucking business'" and then began shaking a stick in the man's direction. The defendant continued to yell obscenities. The man then pushed the defendant against a fence and apparently held him there. After he was released, the defendant ran away, yelling back to the man, "`Your wife is a whore. Your daughter is a whore. Your whole family's a whore. I fucked her last night.'" We upheld the defendant's conviction. We determined that it fell within the definition of fighting words in Chaplinsky. We did not parse the definition to determine whether the defendant's words were fighting words because they inflicted injury or because they were likely to incite an immediate breach of the peace. But the facts showed that the defendant's words were not only the type likely to provoke an immediate retaliation, but in fact did so.
Broadstone, supra note 12, 233 Neb. at 598, 447 N.W.2d at 32.
Id. at 598, 447 N.W.2d at 33.
We conclude that Drahota's e-mails are not fighting words and are distinguishable from Broadstone. The context of Drahota's speech was an ongoing political debate, not random obscenities directed at small children, which could likely provoke a response from nearby adults. Here, Drahota and Avery had corresponded for months on political issues. And both had made provocative statements during that dialog without incident. The First Amendment encourages robust political debate, particularly the right to criticize public officials and measures:
At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern. "[T]he freedom to speak one's mind is not only an aspect of individual liberty — and thus a good unto itself — but also is essential to the common quest for truth and the vitality of society as a whole." . . . We have therefore been particularly vigilant to ensure that individual expressions of ideas remain free from governmentally imposed sanctions.
By the time Drahota sent the e-mails at issue, Avery was running for office. And we have stated that "[t]he steadfast rule is that "`in public debate our own citizens must tolerate insulting, and even outrageous, speech in order to provide adequate breathing space to the freedoms protected by the First Amendment."'" So even when criticisms of public figures are outrageous, if they fall short of provoking an immediate breach of the peace, they are protected by the First Amendment. To hold otherwise would obstruct the free exchange of ideas.
McKee, supra note 3, 253 Neb. at 106, 568 N.W.2d at 564, quoting Madsen v. Women's Health Center, Inc., 512 U.S. 753, 114 S. Ct. 2516, 129 L. Ed. 2d 593 (1994).
Yet, we do not hold that political speech can never constitute fighting words. It is not difficult to imagine insults virulent enough to provoke a breach of the peace in a political debate. But here, even if a fact finder could conclude that in a face-to-face confrontation, Drahota's speech would have provoked an immediate retaliation, Avery could not have immediately retaliated. Avery did not know who sent the e-mails, let alone where to find the author. We conclude that the State has failed to show that Drahota's political speech constituted fighting words.
THE STATE'S OTHER ARGUMENTS
At oral argument, the State put forward two other arguments for affirming the conviction. First, it argues that under the U.S. Supreme Court's decision Rowan v. Post Office Dept., Avery had a right to be let alone after he asked Drahota to stop e-mailing him. Second, it argues that Drahota was being prosecuted not on the content of his speech, but instead for the conduct of speaking at all.
Rowan v. Post Office Dept., 397 U.S. 728, 90 S. Ct. 1484, 25 L. Ed. 2d 736 (1970).
We note that because the State omitted these arguments from its briefs and raised them for the first time at oral argument, we are under no duty to consider them. But the district court's order could be read as applying this reasoning, so we address them. We do not, however, view these arguments as substantively different. Both arguments depend upon the State's claim that after Avery had asked Drahota to quit sending further e-mails, Drahota's act of sending the e-mails — regardless of the content — constituted a breach of the peace.
See State v. Duncan, 278 Neb. 1006, 775 N.W.2d 922 (2009).
The State relies on Rowan v. Post Office Dept. Rowan involved a federal statute that allowed a homeowner to request that a vendor remove his name from the mailing list and stop all future mailings if the homeowner found the mailings erotically arousing or sexually provocative. After weighing a person's "right . . . `to be let alone' [against] the right of others to communicate," the Court ruled that a vendor has no right to send unwanted material to the home of another. Crucial to the Court's holding was the absoluteness and finality of the homeowner's decision; the government had no role in determining whether the materials were objectionable.
Id., 397 U.S. at 736.
Id.
We find Rowan distinguishable. First, we note the absence of a statute like the one in Rowan. The statute in Rowan gave the homeowner absolute and final discretion over what was objectionable. Under the statute, the government merely enforced the homeowner's preference and had no part in deciding what was objectionable. In the present case, the discretion is left to the prosecutor whether to charge Drahota with breach of the peace. This element of government action undermines the State's Rowan-based argument.
Because the State is an actor here, our concern is not focused on balancing Avery's right to be let alone against Drahota's right to communicate. But even if it were, the scales would tip in Drahota's favor. First, Rowan dealt with commercial speech aimed at private citizens. In contrast, this case deals with political speech directed at a candidate for public office. Second, the discussion of political issues is not the equivalent of mass advertisements in balancing free speech against privacy. "`The First Amendment affords the broadest protection to such political expression in order "to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people." . . .'" The ability of a constituent to voice his concerns and opinions to his elected representatives, and to those who wish to become his representatives, is the cornerstone of republican government. We reject the State's contention that Drahota's mere sending of an e-mail constituted a breach of the peace because Avery had previously asked Drahota not to communicate again.
State ex rel. Stenberg v. Moore, 258 Neb. 738, 743, 605 N.W.2d 440, 444 (2000), quoting Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976).
But that does not mean a person's right to speak will always trump another's right to be let alone. While Avery, as a political candidate, had diminished privacy rights trumped by a potential constituent's First Amendment rights, we recognize that balancing free speech rights against the privacy rights of a private citizen may yield a different result.
Obviously, Drahota is not a wordsmith, and his bumper sticker rhetoric was certainly provocative. But it did not rise to the level of fighting words under these facts. If the First Amendment protects anything, it protects political speech and the right to disagree.
Here, Drahota and Avery had an ongoing, bareknuckle political dialog that germinated in a political science course at the University of Nebraska. Avery, to his credit, permitted the university forum to be a marketplace for the free flow of ideas. But Drahota stopped their dialog upon Avery's request and did not e-mail Avery again until Avery was running for political office.
In closing, the hallmark of free speech protection is to allow the "`free trade in ideas' — even ideas that the overwhelming majority of people might find distasteful or discomforting." To criminalize Drahota's speech would impede the free flow of those ideas and political discussion between the people and their representatives. This we refuse to do.
Black, supra note 6, 538 U.S. at 358, quoting Abrams v. United States, 250 U.S. 616, 40 S. Ct. 17, 63 L. Ed. 1173 (1919).
CONCLUSION
We conclude that the State cannot criminalize speech under the fighting words exception solely because it inflicts emotional injury, annoys, offends, or angers another person. And we reject the State's argument that the First Amendment does not protect Drahota's speech because it constituted an invasion of Avery's privacy. The State does not contend that any other exception applies. Because no exception applies, the First Amendment protects Drahota's speech. We reverse his conviction and remand the cause to the Court of Appeals with directions to the district court for further remand to the county court for dismissal.
REVERSED AND REMANDED WITH DIRECTIONS.
ports of Drs. Hochwald, McIntire, and Avioli. (Def. Rule 56.1 Stat. ¶¶ 91
92) Defendant concluded that "the medical restrictions identified [in the medical reports] would not preclude [Baird] from performing the material and substantial duties of her regular occupation as it is normally performed." (Hannon Decl., Ex. 1 at D0712) On July 23, 2009, Defendant denied Baird's final appeal, reiterating that she retained the functional capacity to perform the material and substantial duties of her occupation. (
Id. at D0685, 692) In the final appeal decision, Defendant reviewed all the medical evidence in Baird's file, including reports from each of the physicians mentioned above. (
See id. at D0685-692; Def. Rule 56.1 Stat. ¶ 95)
DISCUSSION
Defendant argues that it is entitled to summary judgment because Baird has not demonstrated that its decision to terminate her LTD benefits was arbitrary and capricious. Given the high level of deference afforded a claim administrator's decision to terminate benefits under an employee benefit plan in which the claim administrator has discretion to determine eligibility, and the lack of any evidence suggesting that a conflict of interest influenced Defendant's decision-making, Defendant's motion for summary judgment will be GRANTED. Baird's arguments amount to nothing more than a disagreement about how Defendant should have evaluated the medical evidence. Where a benefit plan grants the claim administrator discretion to determine eligibility, such arguments do not provide a basis for overturning a benefit determination.
I. LEGAL STANDARDS
A. Summary Judgment
"It is appropriate to consider a challenge under ERISA to the denial of disability benefits as a summary judgment motion reviewing the administrative record." Suarato v. Building Services 32BJ Pension Fund, 554 F. Supp.2d 399, 414-15 (S.D.N.Y. 2008) (citing Muller v. First Unum Life Ins. Co., 341 F.3d 119, 124 (2d Cir. 2003)). Summary judgment is appropriate only when the "pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Whether facts are material is a determination made by looking to substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Whether "[a] dispute about a genuine issue exists" depends on whether "the evidence is such that a reasonable jury could decide in the non-movant's favor." Beyer v. County of Nassau, 524 F.3d 160, 163 (2d Cir. 2008) (internal quotation marks omitted). Courts "resolve all ambiguities, and credit all factual inferences that could rationally be drawn, in favor of the party opposing summary judgment." Cifra v. Gen. Elec. Co., 252 F.3d 205, 216 (2d Cir. 2001).
"In moving for summary judgment against a party who will bear the ultimate burden of proof at trial," as in the current case, "the movant may satisfy this burden by pointing to an absence of evidence to support an essential element of the nonmoving party's claim." Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir. 1996) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). The non-movant "cannot avoid summary judgment simply by asserting a `metaphysical doubt as to the material facts,'" Woodman v. WWOR-TV, Inc., 411 F.3d 69, 75 (2d Cir. 2005) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)), and "may not rely on mere conclusory allegations nor speculation, but instead must offer some hard evidence showing that [his] version of the events is not wholly fanciful." Golden Pac. Bancorp v. FDIC, 375 F.3d 196, 200 (2d Cir. 2004) (quotingD'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998)). In an ERISA case, the Court considers only the evidence contained in the administrative record. See Bergquist v. Aetna U.S. Healthcare, 289 F. Supp 2d 411, 410 (S.D.N.Y. 2003); Glavan v. Building Service 32V-J Health Fund, No. 96 Civ. 4145 (SHS), 1997 WL 381789. at *2 (S.D.N.Y. July 10, 1997) (quoting Vursanaj v. Building Serv. 32B-J Health Pension Fund, No. 93 Civ. 6676, 1995 WL 590616, at *3 (S.D.N.Y. Oct. 4, 1995) ("In the context of a motion for summary judgment, the court must review the Trustees' decision in light of the pleadings and the record before the Trustees.")).
B. ERISA Standard of Review
"[A] denial of benefits challenged under [ERISA] must be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan." Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). Where a claim administrator has discretionary authority, courts "will not disturb the administrator's ultimate conclusion unless it is `arbitrary and capricious.'" Hobson v. Metropolitan Life Ins. Co., 574 F.3d 75, 82 (2d Cir. 2009). Here, the parties do not dispute that the Plan at issue grants the administrator discretion to determine eligibility and, thus, that the Court should review Defendant's benefit determination under an arbitrary and capricious standard of review. (Pltf. Br. 11; Def. Br. 13)
The Plan provides that Prudential "has the sole discretion to interpret the terms of the Group Contract, to make factual findings, and to determine eligibility for benefits." (Coppola Decl., Ex. 3 at D0827)
Under this standard, the determination of the Plan administrator must be upheld unless it is "without reason, unsupported by substantial evidence or erroneous as a matter of law." Kinstler v. First Reliance Standard Life Ins. Co., 181 F.2d 249 (2d Cir. 1999). "`Substantial evidence' is `such evidence that a reasonable mind must accept as adequate to support the conclusion reached by the [decision-maker and] requires more than a scintilla of evidence but less than a preponderance.'" Miller v. United Welfare Fund, 72 F.3d 1066, 1071 (2d Cir. 1995) (quotingSandoval v. Aetna Life Cas. Ins. Co., 967 F.2d 377, 382 (10th Cir. 1992)). "`Absent a showing of bad faith or arbitrariness, the court will not disturb [the administrator's] interpretations of [the] plan as long as they are consistent with the plan's terms and purpose.'" Sansevera v. DuPont de Nemours Co., 859 F. Supp. 106, 112 (S.D.N.Y. 1994) (quoting Seff v. NOITU Ins. Trust Fund, 781 F. Supp. 1037, 1040 (S.D.N.Y. 1992)). Where both parties "offer rational, though conflicting, interpretations of plan provisions, the [administrator's] interpretation must be allowed to control." Pulvers v. First Unum Life Ins., Co., 210 F.3d 89, 92-93 (2d Cir. 2000).
Where, as here, a claim administrator both determines the validity of benefit claims and is responsible for paying out benefits, the administrator has a conflict of interest. See Metropolitan Life Ins. v. Glenn, 554 U.S. 105 (2008). Even where a conflict of interest exists on the part of the claim administrator and can be shown to have influenced the plan administrator's benefit determination, however, the standard of review remains the same. As the Second Circuit has explained, "a plan under which an administrator both evaluates and pays benefits claims creates the kind of conflict of interest that courts must take into account and weigh as a factor in determining whether there was an abuse of discretion, but does not make de novo review appropriate. This is true even where the plaintiff shows that the conflict of interest affected the choice of a reasonable interpretation." McCauley v. First Unum Life Ins. Co., 551 F.3d 126, 133 (2d Cir. 2008).
II. PLAINTIFF IS NOT ENTITLED TO FURTHER DISCOVERY
Baird's primary argument in opposing summary judgment is that she requires discovery outside the administrative record to determine whether a conflict of interest affected Defendant's benefit determination. (Pltf. Br. 12, 14) Baird argues that Defendant's conflict of interest "weighs in favor of finding that at the very least a genuine issue of material fact exists as to whether Defendant's decisions amounted to an abuse of discretion." (Pltf. Br. 12) As discussed below, this argument has no merit.
In reviewing the decision of a claim administrator, this Court is limited to the administrative record. Baird has not demonstrated that any exception to this rule applies, nor does she suggest that Defendant's conflict actually affected its benefit determination here. Baird cannot avoid summary judgment through conclusory assertions that discovery might reveal some infirmity in Defendant's decision-making. Baird's application for discovery — which is entirely unsupported by citation to case law — will be denied, and the Defendant's motion for summary judgment will be decided on the basis of the administrative record.
A. Plaintiff's Declaration and Dr. Green's Letter Are Not Part of the Administrative Record
As a preliminary matter, this Court will not consider Plaintiff's newly submitted declaration or the letter from Dr. Richard Green, the Chairman of the Department of Surgery of Lenox Hill Heart and Vascular Institute of New York. "[T]he presumption is that judicial review `is limited to the record in front of the claims administrator unless the district court finds good cause to consider additional evidence.' As the Ninth Circuit has explained, `trial de novo on new evidence would be inconsistent with reviewing the administrator's decision about whether to grant the benefit.'" Muller, 341 F.3d at 125 (internal citations and quotations omitted). In some cases "where, as here, the plan administrator is not disinterested (i.e., [] was both the plan administrator and insurer), `the decision whether to admit additional evidence is one which is discretionary with the district court, but which discretion ought not to be exercised in the absence of good cause.'" Paese v. Hartford Life Accident Ins. Co., 449 F.3d 435, 441 (2d Cir. 2006) (quoting DeFelice v. Am. Int'l Life Assurance Co., 112 F.3d 61, 66 (2d Cir. 1997), cited in Muller v. First Unum Life Ins. Co., 341 F.3d 119, 125 (2d Cir. 2003)).
In Paese v. Hartford Life Accident Ins. Co., the Second Circuit "found that good cause existed for the admission of [a post-administrative decision] report because it was highly probative and written by a disinterested party who had actually examined [the plaintiff], and because [the plaintiff] was not at fault for the report's initial absence from the record." Id. In contrast to the instant case, however, the standard of review inPaese was de novo.
Where a court's review is under an abuse of discretion standard rather than de novo, supplementing the record with post-administrative decision materials will not ordinarily make sense. The question before the court, in this context, is whether the administrator's decision was arbitrary and capricious in light of the record before it. The breadth and type of evidence a claim administrator with discretionary authority chose to request and consider is subject to review only for an abuse of discretion.
Even if the "good cause" standard applicable in the de novo context governed here, Plaintiff's declaration and Dr. Green's letter would still be inadmissible. Baird's declaration discusses evidence she raised or could have raised during the administrative process. She was represented by counsel throughout that process, and she offers no excuse for failing to submit the information in her declaration to Defendant during its review of her LTD claim. Similarly, with respect to Dr. Green's letter, Baird has shown no good cause for why she delayed in obtaining this additional medical opinion. See Muller, 341 F.3d at 125 (holding that "the District Court did not abuse its discretion, as there was no `good cause' to admit additional evidence" where "[t]he record indicates that First Unum gave Muller ample time to submit additional materials"). Under the deferential standard of review applicable here, this Court's responsibility is to determine whether Defendant had a rational basis — founded in the medical evidence — for terminating Baird's benefits, not to conduct its own de novo evaluation of the medical evidence. Accordingly, neither Plaintiff's declaration nor Dr. Green's submission will be considered.
B. Additional Discovery Will Not be Permitted
"[T]he decision as to whether to allow discovery is distinct from the decision as to whether to allow consideration of additional evidence." Burgio v. Prudential Life Ins. Co. of Am., 253 F.R.D. 219, 229 (E.D.N.Y. 2008); Ramsteck v. Aetna Life Ins. Co., No. 08 Civ. 0012 (JFB) (ETB), 2009 WL 1796999, at *8 n. 3 (E.D.N.Y. Jun. 24, 2009) ("[T]he standard for permitting discovery to supplement the administrative record in an ERISA case is far less stringent than the standard for actually considering that outside evidence when reviewing the decision of the Plan Administrator, under either the de novo or the `arbitrary and capricious' standard.") (citation omitted). "If discovery is allowed, the plaintiff can then apply to the district judge for a determination as to whether she will expand the record to include information that discovery yielded, the nature of which is not yet known." Burgio, 253 F.R.D. at 229 (citation omitted).
The standard for authorizing discovery under the circumstances here is set forth in Yasinoski v. Connecticut General Life Ins. Co., No. 07 Civ. 2573 (RRM) (AKT), 2009 WL 3254929 (E.D.N.Y. Sept. 30, 2009):
Where . . . evidence outside of the administrative record is sought at the discovery stage, the petitioner
"need not make a full good cause showing, but must show a reasonable chance that the requested discovery will satisfy the good cause requirement." As noted in an earlier decision, "[i]f a plaintiff were forced to make a full good cause showing just to obtain discovery, then he would be faced with a vicious circle: To obtain discovery, he would need to make a showing that, in many cases, could be satisfied only with the help of discovery." "The good cause standard required to obtain evidence beyond the administrative record [through discovery] is therefore less stringent than when requesting that the court [] consider such evidence in its final determination."
Yasinoski, 2009 WL 3254929, at *5 (emphasis added) (quoting
Rubino v. Aetna Life Ins., Co., No. 07 Civ. 377 (LDW) (AKT),
2009 WL 910747, at *4 (E.D.N.Y. March 31, 2009)).
In Burgio v. Prudential Life Insurance Company of America, 253 F.R.D. 219 (E.D.N.Y. 2008), the court found that "enough evidence [was] raised by Plaintiff of a potential conflict of interest to warrant limited discovery outside the administrative record" where the plaintiff had shown that plaintiff's "eligibility for LTD benefits was allegedly tied to his continued eligibility for other employee benefits such as life insurance." Burgio, 253 F.R.D. at 231. Similarly, in Samedy v. First Unum Life Insurance Company of America, No. 05 Civ. 1431 (CBA) (KAM), 2006 WL 624889, at *2 (E.D.N.Y. Mar. 10, 2006), the court granted limited discovery where plaintiff had submitted a declaration from a former Unum employee — responsible for making eligibility determinations — stating that she had been pressured to deny claims.
As in Yasinoski, "the instant case [] is not analogous to [cases permitting discovery,]" because Plaintiff has cited nothing in the administrative record (or for that matter, outside the administrative record) suggesting that Defendant's conflict influenced the termination decision. See Yasinoski, 2009 WL 3254929, at *11. "[I]t is well-established that a conflict of interest does not per se constitute `good cause'" for discovery of evidence outside of the administrative record, and while a full "good cause" showing is not required to obtain discovery, "a party seeking to conduct discovery outside the administrative record must allege more than a mere conflict of interest."Rubino, 2009 WL 910747, at *3 (citing Lochner, 389 F.3d at 295).
Here, Baird argues that discovery is necessary to reveal whether Defendant's reviewing physicians were "actually independent of the Defendant," and whether "Defendant has walled off claims administration from those interested in firm finances or has imposed management checks that penalize inaccurate decision-making, irrespective of who the inaccuracy benefits." (Pltf. Br. 12, 14) Plaintiff's suggestion that discovery might demonstrate that Defendant's conflict of interest influenced its decision-making to a degree that would affect this Court's review of Defendant's termination decision, however, is insufficient to demonstrate that there is a "`reasonable chance that the requested discovery will satisfy the good cause requirement.'"Yasinoski, 2009 WL 3254929, at *5 (quoting Rubino, 2009 WL 910747, at *4 (denying motion to depose an employee of the defendant involved in the decision to reduce the plaintiff's monthly LTD benefits, because the plaintiff's assertion "that there exists a `structural conflict of interest because Aetna is both the claim insurer and claim administrator' falls far short of satisfying the standard necessary" to allow discovery); Schalit v. Cigna Life Ins. Co. of N. Y., 07 Civ. 476 (CM) (RLE), 2007 WL 2040587, at *3 (S.D.N.Y. Jul. 12, 2007) (denying motion for general discovery outside the administrative record where plaintiff had not provided any specific factual allegations, but permitting limited discovery as to whether the administrative record was complete).
Finally, and as discussed below, the administrative record contains ample evidence in support of Defendant's determination that Plaintiff was able, under the Plan's terms, to resume the "material and substantial duties" of her "regular occupation." Accordingly, even if evidence exists that Defendant's decision-making process was tainted by conflict, it would likely have no effect on this Court's determination that Defendant's decision to terminate Plaintiff's LTD benefits was not arbitrary and capricious.
Defendant also notes that Plaintiff should have filed a Rule 56(f) motion if she required discovery to respond to its motion for summary judgment. (Def. Br. 7) See Fed.R.Civ.P. 56(f). Plaintiff's counsel neither filed a Rule 56(f) motion nor requested discovery.
"Fed.R.Civ.P. 56(f) sets forth a specific procedure by which a party lacking information necessary to oppose a summary judgment motion may seek further discovery." Aetna Cas. Sur. Co. v. Aniero Concrete Co., 404, F.3d 566, 574 (2d Cir. 2005). Rule 56(f) provides:
If a party opposing the motion shows by affidavit that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:
(1) deny the motion;
(2) order a continuance to enable affidavits to be obtained, depositions to be taken, or other discovery to be undertaken; or
(3) issue any other just order.
Id. at 606. "To oppose a motion [for summary judgment] on the basis of Rule 56(f), a party must file an affidavit detailing: (1) what facts are sought and how they are to be obtained; (2) how these facts are reasonably expected to create a genuine issue of material fact; (3) what efforts the affiant has made to obtain those facts; and (4) why these efforts were unsuccessful." Id. Here, Plaintiff made no such submission.
III. DEFENDANT'S TERMINATION DECISION WAS NOT ARBITRARY AND CAPRICIOUS
As claimant, Baird bears the burden of demonstrating that she qualifies for LTD benefits. In order to establish that she is physically disabled under the Plan, Baird must show that she is "unable to perform the material and substantial duties of [her] regular occupation." (Coppola Decl. Ex. 3 at D0800) See Gannon v. Aetna Life Ins. Co., No. 05 Civ. 2160 (JGK), 2007 WL 2844869, at *11 (S.D.N.Y. Sept. 28, 2007) (citing Juliano v. Health Maintenance Org. of New Jersey, 221 F.3d 279, 287-88 (2d Cir. 2000)).
The fact that Baird received LTD benefits for a period of time does not create a presumption that she has a continued right to benefits. See Fitzpatrick v. Bayer Corp., No. 04 Civ. 5134 (RJS), 2008 U.S. Dist. LEXIS 3532, 2008 WL 169318, at *9 (past payment of benefits does not lessen plaintiff's burden in challenging termination decision); Lee v. Aetna Life and Cas. Ins. Co., No. 05 Civ. 2960 (PAC), 2007 U.S. Dist. LEXIS 38205, 2007 WL 1541009, at *4 (S.D.N.Y. May 24, 2007) ("[The administrator] is not required to disprove the possibility that [plaintiff] was disabled in order to terminate her benefits; rather, it is [plaintiff's] burden to demonstrate her disability under the Plan.").
In concluding that Baird was not physically disabled within the meaning of the Plan, Defendant considered all medical evidence submitted by Plaintiff in favor of her claim. Defendant's November 20, 2008 letter denying Plaintiff's first appeal, for example, recites an extensive list of medical records that Defendant considered, including notes and evaluations from Drs. Reich, Sun, Weiland, Hochwald, Lenzo, Lee, Katchis, and Posner; an EMG study; a Radiographic study; laboratory studies; sports and physical therapy notes; surveillance reports; and investigative reports, as well as various other test results and doctors' reports and notes. (See Hannan Decl., Ex. 1 at D0705, 708) Nothing in the record suggests that this evidence was not actually considered.
Moreover, Defendant arranged for an IME of Plaintiff and review of her medical records by three additional independent physicians. All four physicians concluded that Baird was able to perform the "material and substantial duties" of her occupation. That these physicians disagreed with Dr. Reich's assessment and Plaintiff's own accounts of her disabled status does not indicate that Defendant's review of Plaintiff's claim was flawed.
While "ERISA and the Secretary of Labor's regulations under the Act require `full and fair' assessment of claims and clear communication to the claimant of the `specific reasons' for benefit denials, [] these measures do not command plan administrators to credit the opinions of treating physicians over other evidence relevant to the claimant's medical condition."Black Decker Disability Plan v. Nord, 538 U.S. 822, 825 (2003) (citations omitted). "Therefore, when faced with a conflict between the opinion of the treating physician and the opinions of reviewing doctors and independent consultants, it is not arbitrary and capricious for the plan to prefer the reviewing doctors." Greenberg v. Unum Life Ins. Co., No. 03 Civ. 1396 (CPS), 2006 WL 842395, at *10 (E.D.N.Y. March 27, 2006) (citingManiatty v. Unumprovident Corp., 218 F. Supp. 2d 500, 504 (S.D.N.Y. 2002)). Similarly, "[a]n insurance company must be allowed to employ a system which will prevent awarding benefits to those whose symptoms are exaggerated or faked. As such, it is reasonable for the company to prefer objective verifiable evidence over the self-reported symptoms of the insured." Id. (citing Maniatty, 218 F. Supp. 2d at 504 (holding that the administrator's decisions were not arbitrary and capricious because "they demand[ed] objective evidence" and refused to rely solely on "subjective statement[s] of pain")).
Plaintiff has not demonstrated that Defendant's reliance on the opinion of reviewing doctors Hochwald, Avioli, Weiss, and McIntire was unreasonable or irrational. Accordingly, after reviewing the administrative record, this Court finds that Defendant's termination decision was supported by substantial evidence and was not arbitrary and capricious.
IV. THERE IS NO EVIDENCE THAT DEFENDANT'S CONFLICT OF INTEREST INFLUENCED ITS TERMINATION DECISION
Plaintiff argues that Defendant's conflict of interest may have influenced the termination decision. (Pltf. Br. 12) Where, as here, the claim administrator has a conflict of interest, the reviewing court must consider the conflict as a factor in assessing whether Defendant abused its discretion. See Firestone Tire Rubber, 489 U.S. at 115 ("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 factor in determining whether there is an abuse of discretion").
Here, Baird has not raised a material issue of fact as to whether Defendant's termination decision was influenced by its conflict of interest. Instead, Baird makes conclusory statements, such as the assertion that the effect of the conflict of interest is apparent from Defendant's reliance on its own reviewing physicians' opinions. As discussed above, Defendant's reliance on the four opinions of its reviewing physicians constitutes a rational choice that Defendant was entitled, in its discretion, to make.
A "conflict of interest . . . should prove more important (perhaps of great importance) where circumstance suggest a higher likelihood that it affected the benefits decision, [such as where] an insurance company administrator has a history of biased claims administration. . . . It should prove less important (perhaps to the vanishing point) where the administrator has taken steps to reduce potential bias and to promote accuracy."Glenn, 554 U.S. 105, 128 S.Ct. at 2352. Nothing before this Court suggests that Defendant has a history of biased claims administration.
Plaintiff relies heavily on Smith v. Novelis, 2009 U.S. Dist. LEXIS 90094 (GTS) (GJD), at **42-43 (N.D.N.Y Sept. 29, 2009), in arguing that the administrative record reveals procedural irregularities and possible structural conflicts that suggest biased decision-making. The background facts in Smith, however, are distinguishable. In Smith, plaintiff had been "deemed `totally disabled'" for fifteen years "based on objective and subjective medical evidence, and . . . there ha[d] been no change in [his] condition." There had likewise been "no change in the relevant plan." Nonetheless, the administrator "sua sponte re-open[ed] Plaintiff's file [to] consider terminating his benefits based on the exact same evidence and standard as before." Under these circumstances, the court found that the approach adopted by the claim administrator "smacks of arbitrary conduct." Smith, 2009 U.S. Dist. LEXIS 90094, at **42-43. The facts here, however, are entirely different.
Baird has not been "deemed totally disabled" for fifteen years, nor did her condition remain static during the thirty months that she received LTD benefits. Instead, undisputed evidence in Baird's medical records indicates that her condition improved over time. Indeed, while she was diagnosed with carpal tunnel syndrome in 2004, by 2008, two EMG studies had found "no neurophysiologic evidence of focal neuropathy on either side in the hand" and no evidence of carpal tunnel syndrome. (Def. Rule 56.1 Stat. ¶¶ 31-32) While Baird asserts that she developed other ailments that prevented her return to work, four physicians retained by Defendant concluded that Baird suffered from no disabling impairment. In sum, in contrast to the circumstances in Smith, nothing about Defendant's approach here "smacks of arbitrary conduct" or otherwise suggests that Defendant's termination decision was influenced by conflict of interest.
* * * *
"Given that only a rational connection is necessary between the facts relied upon and the decision to deny benefits," Glavan, 1997 WL 381789, at *3, this Court cannot find that Defendant's termination of Baird's LTD Plan benefits was arbitrary and capricious. In light of the deferential standard of review, Plaintiff's burden to demonstrate her physical disability under the Plan, and Defendant's citation to substantial evidence supporting its determination, there is no basis for this Court to overturn Defendant's benefit decision.
CONCLUSION
For the reasons stated above, Defendant's motion for summary judgment (Docket No. 13) is GRANTED. The Clerk of the Court is directed to terminate the motion and to close this case. Any other pending motions are moot.
Dated: New York, New York September 23, 2010
SO ORDERED.