Charles Dimry v. Bert Bell/pete Rozelle Nfl Player Retirement Plan;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARLES DIMRY,
Plaintiff-Appellee,
v.
BERT BELL/PETE ROZELLE NFL
PLAYER RETIREMENT PLAN; et al.,
Defendants-Appellants.
No. 20-17049
D.C. No. 3:19-cv-05360-JSC
MEMORANDUM*
CHARLES DIMRY,
Plaintiff-Appellant,
v.
BERT BELL/PETE ROZELLE NFL
PLAYER RETIREMENT PLAN; et al.,
Defendants-Appellees.
No. 20-17124
D.C. No. 3:19-cv-05360-JSC
Appeal from the United States District Court
for the Northern District of California
Jacqueline Scott Corley, Magistrate Judge, Presiding
Argued and Submitted July 6, 2021
San Francisco, California
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
AUG 10 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Before: GRABER and LEE, Circuit Judges, and VRATIL,** District Judge.
These cross-appeals arise from an action to recover long-term group disability
benefits under the Employee Retirement Income Security Act of 1974 (“ERISA”),
29 U.S.C. § 1132(a)(1)(B). Charles Dimry has won two favorable federal court
judgments (“Dimry I” and “Dimry II”) against the Bert Bell/Pete Rozelle NFL
Player Retirement Plan, The NFL Player Supplemental Disability Plan, and the plan
administrator, the Retirement Board (collectively, the “Plan”), on account of their
denials of his application for total and permanent disability benefits. On appeal, the
Plan (Appellant/Cross-Appellee) challenges the Dimry II judgment. Dimry
(Appellee/Cross-Appellant) cross-appeals.
Reviewing for abuse of discretion the Plan’s denial of benefits, Boyd v. Bert
Bell/Pete Rozelle NFL Players Ret. Plan, 410 F.3d 1173, 1178 (9th Cir. 2005), we
affirm on the ground that the Plan committed procedural error in evaluating Dimry’s
claim under ERISA, and we remand to the district court with instructions to
determine whether Dimry is entitled to benefits.
1. Section 1133 of Title 29 requires that every ERISA plan administrator
must “afford a reasonable opportunity to any participant whose claim for benefits
has been denied for a full and fair review by the appropriate named fiduciary of the
** The Honorable Kathryn H. Vratil, United States District Judge for the
District of Kansas, sitting by designation.

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decision denying the claim.” In the Ninth Circuit, “full and fair review” cannot be
achieved without “a meaningful dialogue between ERISA plan administrators and
their beneficiaries.” Booton v. Lockheed Med. Ben. Plan, 110 F.3d 1461, 1463 (9th
Cir. 1997). This standard includes requesting “more information [when] needed to
make a reasoned decision.” Id. A plan administrator fails to meet this duty when its
communications are opaque or nonexistent. Saffon v. Wells Fargo & Co. Long Term
Disability Plan, 522 F.3d 863, 873 (9th Cir. 2008).
We agree with the district court in Dimry II that the Plan’s actions on remand,
following Dimry I, violated the requirement of “meaningful dialogue between
ERISA plan administrators and their beneficiaries.” Booton, 110 F.3d at 1463.
Dimry and his counsel were in the dark during the entirety of the remand process.
The Plan did not notify Dimry that the remand process had begun or indicate how
the process would take place. The Plan concluded that the record required
supplementation but did not inform Dimry that it intended to reopen the record for
reports from Dr. Allen Jackson, the Plan’s Medical Director, or allow Dimry the
opportunity to respond to those reports. We therefore affirm the district court’s
finding that the Plan denied Dimry a full and fair review under ERISA.
2. Because the Plan committed procedural error by excluding Dimry from
the process following remand, we remand to the district court with directions to
determine whether Dimry is entitled to benefits.

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Where procedural irregularities have prevented full development of the
administrative record, the district court “must permit the participant to present
additional evidence.” Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 973 (9th
Cir. 2006) (en banc). After taking into account all of the evidence and “determining
the degree of deference (if any)” owed to the Plan, “the district court must then
determine whether [the beneficiary] is permanently disabled.” Saffon, 522 F.3d at
873; see also Abatie, 458 F.3d at 974 (remanding to district court rather than plan
administrator).
Here, the Plan violated ERISA by not giving Dimry a chance to participate at
the administrative level. Dr. Jackson’s reports resulted in a final decision that revised
the Plan’s reasons for denial. Yet the Plan excluded Dimry from dialogue about Dr.
Jackson’s reports and told Dimry to revise his lawsuit rather than discuss the changes
with the Plan. The parties agree that, if a remedy is necessary, we should not remand
to the Plan. They mutually prefer to have the district court decide Dimry’s
entitlement to benefits, and their preference aligns with our precedent. Saffon, 522
F.3d at 873; Abatie, 458 F.3d at 974.
AFFIRMED in part and REMANDED.

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