‘Independent’ may replace ‘de novo’

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Just as attorneys once had to learn to substitute “claim preclusion” and “issue preclusion” for “res judicata” and “collateral estoppel,” the day may be coming when “independent” replaces “de novo.”

In a June 29 Seventh Circuit opinion, Judge Frank H. Easterbrook, writing for the court, said that it is time to scrap the Latin phrase “de novo.

For now, “de novo review” has only been replaced with “independent decisionmaking,” when a district court engages in its own factfinding. But the opinion could lead to abandonment of “de novo review” altogether.

Paul M. Krolnik brought suit under ERISA against The Prudential Insurance Company of America, after it terminated his long-term disability payments.

At issue was whether Krolnik’s ability to work is entirely physical, or mental.

The district court barred discovery on medical questions, and granted summary judgment in favor of Prudential based on the administrative record.

Krolnik appealed, and the Seventh Circuit reversed.

The court began by explaining that “de novo review” is a misleading phrase for describing a district court’s role.

The court acknowledged that, in Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989), the Supreme Court said that “de novo review” is the norm under ERISA.

But the court added, “Cases such as this show that ‘de novo review’ is a misleading phrase. The law Latin could be replaced by an English word, such as ‘independent.’ And the word ‘review’ simply has to go. For what Firestone requires is not ‘review’ of any kind; it is an independent decision rather than ‘review’ that Firestone contemplates (emphasis in original).”

The court noted that, only when a district court’s review is deferential is review limited to the administrative record. Otherwise, the district court must decide based on record made in the litigation itself.

Because the district court barred discovery, even though it was not limited to the administrative record, the Seventh Circuit reversed.

Before concluding, though, the court returned to the proper standard of review.

“All in all, it would be best for judges and lawyers to stop thinking about ‘de novo review’ — with the implication that the judge is ‘reviewing’ someone else’s action — and start thinking about independent decision, which is what Firestone requires,” Judge Easterbrook wrote.

If the court follows through on its reasoning, it may soon discard “de novo review” in favor of “independent review” or “independent decisionmaking” when it reviews purely legal questions, as well.