Wednesday, April 9, 2008

Another Glenn ERISA Amicus Brief: Arguing NonDelegation

Legalbrief To follow up on Don Bogan's amicus brief in MetLife v. Glenn that we reported on yesterday, today we are featuring another amicus brief in Glenn that Jonathan Feigenbaum filed with Scott Riemer for the MS Society of New York City in the case.

In an interesting and novel argument, they maintain that deferring to a litigant in a Section 502(a)(1)(B) denial of benefits case is an impermissible delegation of Article III duties that denies Mrs. Glenn her constitutional right to Article III adjudication.  They write that they know of no other area of the law where the Federal Judiciary defers to the decision of a private litigant when deciding private rights.

This is a short pointed brief to alert the Supreme Court to this important constitutional issue that has been overlooked.

Jonathan and Scott would appreciate you comments on the brief and are interested in hearing feedback from others.


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I liked the brief and commend Jonathan and Scott for thinking critically about important matters that others have overlooked or taken for granted. In Erie v. Tompkins, the Court went so far as to hold that its earlier decision in Swift v. Tyson was an "unconstitutional decision"; could Firestone v. Bruch be another? Maybe not, on its face, but almost certainly, as it has been interpreted and applied in practice. This brief should influence the Court's thinking, even if the Court does not mention the constitutional issue. Because, whether or not judicial deference to ERISA administrators is unconstitutional, it has proved to be a bad idea, embarrassing to the bench and bar, and silly.

Posted by: Les Baker | Apr 10, 2008 6:56:18 PM

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