Judge Acker: the hits just keep on coming

Somewhere in judicial heaven there has to be an abundant bounty set aside for U.S. District Judge William M. Acker, Jr., whose work we've enjoyed many, many, times before. His latest single to go platinum for the Rising Judicial Chorus is a little number we like to call Criss v. Union Security Insurance Company, released just this year. Time to stand aside and let the lead singer have the stage:

This court devoutly wishes that the Supreme Court of the United States had not blindly stumbled off on the wrong foot and in the wrong direction when it handed down Firestone Tire & Rubber Co. v. Bruch, 49 U.S. 101 (1989), the case in which it invented a strange quasi-administrative regime for court review of denials of ERISA benefits claims. It inexplicably substituted a procedure borrowed from administrative law for the clear congressional mandate that the filing of a “civil action” (a simple, straight-forward, garden-variety suit for breach of contract) is the only means for challenging such denial decisions. In the amicus curiae brief filed by the Solicitor General in Bruch,he did his best to keep the Supreme Court from wandering off track and ignoring Congress. The Solicitor General, who was representing both Congress and the persons whom Congress intended to benefit from ERISA, failed to talk the Supreme Court out of its misguided step, a misstep that has led to a series of further judicial glosses, distillations, penumbras, and emanations, eventuating in the sad state of affairs now faced by ERISA claimants and by the courts who have to deal with ERISA benefits claims.

If Congress itself had enacted the weird scheme created by the Bruch court out of whole cloth, ERISA would have been promptly and successfully attacked for its patent unconstitutionality as a violation of “due process”. A quick application of the universally recognized legal maxim, nemo judex in causa sua, would have kept any such statute off the statute books. Chief Justice Sir Edward Coke in Dr. Bonham's Case, 8 Co. Rep. 107a, 77 Eng. Rep. 638 (C.P.1610), carved in granite for all time this fundamental jurisprudential principle when he said, using the vernacular: “No man should be a judge in his own case.”

The justices of the Supreme Court, including some who decided Bruch, routinely recuse themselves when there is even the slightest hint of any possible self-interest by the recusing justice. And yet, today, clearly conflicted ERISA plan administrators and insurers, when granted by the plan document that they drafted full discretion to interpret their plans and to decide the ultimate issue of entitlement, are routinely allowed, even required, to rule on their own cases. Not surprisingly, this court has not found a single case in which an insurance company has recused itself in an ERISA case under the rule of nemo judex in causa sua. There is no scheme remotely like the one created byBruch in the annals of Anglo–American jurisprudence. Chief Justice Coke is uncomfortable in his crypt.

Justice Coke ain't the only one. Thanks, Judge Acker.