Opinion
Case No. 8:00-CV-210-T-27TGW
August 31, 2001
ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came on to be considered on Defendants' Motion for Summary Judgment (Dkt. 27). The Court having reviewed said motion and being otherwise fully advised in the premises, finds as follows:
I. Introduction
Plaintiff sued Defendants New York Life Insurance Company, Aetna Life Insurance Company and NYLCare Health Plans, Inc. (collectively "Defendants") under the provisions of the Employment Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001-1461, to recover past and future long term disability insurance benefits he alleges are due under the terms of the employee welfare benefit plan established by his employer, New York Life Insurance Company. (Dkt. 18). Defendants moved for summary judgment on the grounds that the policy provisions grant Defendants discretionary authority to make determinations concerning benefits, Defendants' decision denying benefits to Plaintiff was not wrong and that the decision was not tainted by any conflict of interest. (Dkts. 27, 28).
II. Undisputed Facts
In considering a motion for summary judgment all evidence is viewed in the light most favorable to the nonmoving party. See Adickes v. S.H. Kress Co., 398 U.S. 144 (1970); Stewart v. Happy Herman's Cheshire Bridge. Inc., 117 F.3d 1278, 1285 (11th Cir. 1997).
Plaintiff worked for Defendant, New York Life insurance Company ("NYL"), from January 2, 1979, through January 10, 1997, during which he was insured under group policy number G- 00610-3 ("the Plan"). (Dkt. 37, Johnson Aff. ¶ 2; Dkt. 36, Evans Aff. ¶¶ 4-5, Exs. A). NYL was the self-insurer and plan sponsor of the Plan when it was issued to Plaintiff. (Dkt. 36, Evans Aff. ¶¶ 4-5). NYL performed claims administration through its subsidiary NYLCare Health Plans, Inc. (Dkt. 36, Evans Aff. ¶ 5). During Plaintiff's enrollment in the Plan, Aetna Life Insurance Company ("Aetna") bought NYL's group policies, including the Plan and acquired NYLCare, effective March 15, 1998. (Dkt. 36, Evans Aff. ¶ 6). As a result, Aetna became claims administrator and insurer for the Plan. (Dkt. 36, Evans Aff. ¶ 7).
During the pendency of Plaintiff's claim for benefits, both NYLCare and Aetna served as administrator of the Plan at different times. Throughout this Order, the Court refers to the administrators collectively as "Defendants."
Plaintiff submitted a claim for long term disability benefits to Defendants in March 1998. (Dkt. 30, Frazier Aff. ¶ 6, Ex. 2). He alleges that he became totally disabled on January 7, 1997, as a result of depression, stress, anxiety, memory loss, hypertension, cardiac arrhythmia, lumbar disc disease and acute arthritis. (Dkt. 37, Johnson Aff. ¶ 3; Dkt. 30, Frazier Aff. ¶ 6, Ex. 2). His depression, stress and anxiety were precipitated by the untimely death of his wife in 1996. (Dkt. 30, Frazier Aff. ¶¶ 6, 8, Exs. 2, 6).
At the time of the onset of his alleged illnesses, Plaintiff was employed as a field underwriter in New York. (Dkt. 30, Frazier Aff. ¶ 6, Ex. 2). In that position, he was responsible for selling insurance, prospecting for future clients and servicing Defendants' existing clients. (Dkt. 30, Frazier Aff. ¶ 7, Ex. 5). Although Plaintiff's work was primarily sedentary, he was required to frequently bend and reach as well as handle stress and satisfy production sales quotas. (Dkt. 30, Frazier Aff. ¶ 7, 11, Exs. 5, 15). Plaintiff worked out of his home. (Dkt. 30, Frazier Aff. ¶ 7, Ex. 3). After Plaintiff allegedly became disabled, he sold his client files, sold his home in New York and moved to Florida in 1998 to be closer to his wife's family. (Dkt. 30, Frazier Aff. ¶ 10, Ex. 14).
In support of his disability claim, Plaintiff provided Defendants with his medical records and attending physicians' statements from Drs. Muneeb Haroon, James White and Richard Wolin and records and statements from Donna Puma, CSWR. (Dkt. 30, Frazier Aff. ¶¶ 9-10, Exs. 7, 10-14). Dr. Haroon treated Plaintiff for chest pains and hypertension beginning in January 1997. (Dkt. 30, Frazier Aff. ¶¶ 9, Ex. 7). Plaintiff's hypertension was "well controlled" by June 1997 and an echocardiogram showed normal results in February 1997. Id. Dr. Haroon believed that no physical illness prevented Plaintiff from returning to work. Id. He concluded that Plaintiff's physical status was stable, but that he was suffering from an anxiety disorder. Id. Dr. Haroon referred Plaintiff to Donna Puma, CSWR, a clinical social worker. (Dkt. 30, Frazier Aff. ¶ 10, Ex. 12).
Plaintiff began psychotherapy with Ms. Puma in October 1997. (Dkt. 30, Frazier Aff. ¶ 10, Ex. 12). She observed that Plaintiff had a visibly apprehensive attitude and was agitated. Id. Ms. Puma concluded that Plaintiff was suffering from severe anxiety and depression. Id. She believed that Plaintiff was exhibiting progress but that he remained impaired. Id.
At the same time Plaintiff was undergoing psychotherapy with Ms. Puma, Plaintiff consulted with Dr. Richard Wolin, a psychiatrist. (Dkt. 30, Frazier Aff. ¶ 10, Exs. 13, 14). Dr. Wolin assisted Plaintiff by adjusting Plaintiff's medications as needed. (Dkt. 30, Frazier Aff. ¶ 12, Ex. 19). Dr. Wolin diagnosed Plaintiff as suffering from an adjustment disorder with an anxious and depressed mood. (Dkt. 30, Frazier Aff. ¶ 13, Ex. 21). Dr. Wolin found that Plaintiff responded moderately to prescribed medication, but that Plaintiff remained very anxious. Id. As such, Dr. Wolin concluded that Plaintiff was disabled from competitive employment and that Plaintiff should not work in stressful jobs. (Dkt. 30, Frazier Aff. ¶ 10, 12, Exs. 14, 21).
Plaintiff also allegedly suffered from back pain after sitting or standing for prolonged periods of time. (Dkt. 30, Frazier Aff. ¶ 9, Ex. 7). Plaintiff treated with Dr. James White, Jr., an orthopaedic physician and spine surgeon, from March 1991 through November 1996. Id. Dr. White diagnosed Plaintiff as having a herniated disc and recommended that Plaintiff abstain from heavy lifting, repetitive lifting, bending and twisting. Id.
Defendants performed an investigation of Plaintiff's claim. In addition to reviewing the documentation received from Plaintiff's physicians and social worker, Defendant considered two Disability Case Administrator Findings/Recommendations by Deborah Thomson, R.N. and file reviews performed by Kenneth Berc, M.D., Defendants' in-house consulting psychiatrist. (Dkt. 30, Frazier Aff. ¶¶ 9, 12, Exs. 8, 9, 16-19). Defendants also had a vocational consultant, Mary Ellen Meckes, Ed. M., COMS, interview Plaintiff. (Dkt. 30, Frazier Aff. ¶ 11, Ex. 15).
After conducting the investigation, on June 1, 1999, Defendants denied Plaintiff's request for benefits. (Dkt. 30, Frazier Aff. ¶ 13, Exs. 20-21). Defendants concluded that Plaintiff did not meet the Plan's definition of "total disability" given "the absence of clinical documentation of an illness and in light of the supporting documents that [he] decided to modify [his] job to accommodate [his] family situation." (Dkt. 30, Frazier Aff. ¶ 13, Ex. 20).
Plaintiff appealed the denial and submitted new medical correspondence, progress notes, psychiatric analysis and limitation forms and an attending physician's statement from Debra M. Barnett, M.D., a psychiatrist. (Dkt. 30, Frazier Aff. ¶ 15, Ex. 22). Dr. Barnett treated Plaintiff after he moved to Florida. Id. She found that Plaintiff exhibited a worried mood, but that he was stable. Id. She believed that Plaintiff was able to return to some work and noted that he was engaged in philanthropic efforts. Id. However, she opined that Plaintiff could not perform sales work or have any client responsibilities for an indefinite period of time. Id. Plaintiff also submitted a new letter from Dr. Wolin, who opined that Plaintiff suffered from an adjustment disorder with an anxious and depressed mood as a result of his wife's death and that Plaintiff was "disabled from competitive employment." Id.
Defendant Aetna's medical director, W.J. Defoy, M.D., reviewed Plaintiff's file and concluded that Plaintiff was not totally disabled. (Dkt. 30, Frazier Aff. ¶ 16, Ex. 23). Defendants also had an independent psychiatrist, Robert G. Slack, M.D., review Plaintiffs claim file. In addition to reviewing Plaintiffs claim file, Dr. Slack conducted a Mental Residual Functional Capacity Assessment of Plaintiff. (Dkt. 30, Frazier Aff. ¶ 17, Ex. 24). Dr. Slack concluded that Plaintiff "experienced brief psychiatric symptomatology following the death of his wife and emerging responsibility of a single parent for his young children. . . . However, this does not reflect a psychiatric disorder that has removed from him the option or choice of performing a number of occupations outside his home if he should choose." (Dkt. 30, Frazier Aff. ¶ 17, Ex. 24). Based in part on the conclusions of Drs. Defoy and Slack, Defendants upheld the prior determination denying Plaintiff's claim for long term disability benefits on September 5, 2000. (Dkt. 30, Frazier Aff. ¶ 18, Ex. 25).
III. Summary Judgment Standards
Summary judgment is proper if following discovery, the pleadings, depositions, answers to interrogatories, affidavits and admissions on file show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Fed.R.Civ.P. 56. The Court must view all evidence and all factual inferences reasonably drawn from the evidence in the light most favorable to the nonmoving party. Adickes v. S.H. Kress Co., 398 U.S. 144 (1970); Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278, 1285 (11th Cir. 1997). Judgment in favor of a party is proper where there is no legally sufficient evidentiary basis for a reasonable jury to find for the nonmoving party on the issue before the Court. Fed.R.Civ.P. 56.
IV. Discussion
Plan Affords Administrator Discretion in Determining Eligibility for Benefits
When a plaintiff challenges a denial of benefits under 29 U.S.C. § 1132(a)(1)(B) the denial is 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 Rubber Co. v. Bruch, 489 U.S. 101, 113 (1989). The plan must include language affording the administrator the discretionary authority before the administrator makes its final determination concerning coverage. Mitchell v. Eastman Kodak Co., 113 F.3d 433 (3rd Cir. 1997).
Section 1132(a)(1)(B) expressly provides: (a) Persons empowered to bring a civil action A civil action may be brought — (1) by a participant or beneficiary — (B) to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan;
Here, the Plan gives Defendants discretionary authority to determine Plaintiffs eligibility for benefits. The Plan expressly provides:
For the purposes of determining whether an individual is eligible for coverage, and the class of coverage for which an individual is eligible, the Plan Administrator has the exclusive and final discretionary authority to construe and interpret Plan provisions, to make any necessary factual determinations and to resolve any ambiguities.
(Dkt. 29, Evans Aff. ¶ 4, Ex. A, pg. 118). This provision gives Defendants sole discretionary authority to determine eligibility for benefits and to construe the terms of the Plan. See HCA Health Services of Georgia. Inc. v. Employers Health Insurance Company, 240 F.3d 982. 995 (11th Cir. 2000) (policy language gives administrator final decision-making authority concerning coverage and interpretation of plan); Brown v. Blue Cross and Blue Shield of Alabama, Inc., 898 F.2d 1556 (1lth Cir. 1990) (same); Jett v. Blue Cross and Blue Shield of Alabama. Inc., 890 F.2d 1137, 1139 (11th Cir. 1989) (same). Therefore, the Court must apply the arbitrary and capricious standard in reviewing Defendants' decision denying benefits. See Firestone Tire Rubber Co., 489 U.S. at 113; Levinson v. Reliance Standard Life Ins. Co., 245 F.3d 1321, 1325 (11th Cir. 2001).
Heightened Arbitrary and Capricious Standard
If the plan affords the administrator discretionary authority to interpret the plan and make determinations concerning coverage, the administrator's interpretation "will not be disturbed if reasonable."Firestone, 489 U.S. at 114. However, the claims administrator's interpretation of the plan is not entitled to deference if the administrator has a conflict of interest. HCA Health Services, 240 F.3d at 994. An administrator acts under a conflict of interest if it pays claims out of its own assets. Id. at 1001. Defendants admit that Aetna acted as the administrator of its own policy and also acts as insurer for the payment of claims. (Dkt. 29, Evans Aff. ¶ 7).
When an administrator acts under a conflict of interest, as in this case, a heightened arbitrary and capricious standard applies. Levinson, 245 F.3d at 1325; HCA Health Services, 240 F.3d at 994. An interpretation would be considered arbitrary and capricious if it advances the conflicting interest of the fiduciary at the expense of the affected beneficiary unless the fiduciary justifies the interpretation on the ground of its benefit to the class of all participants and beneficiaries. Levinson, 245 F.3d at 1326. However, it is "fundamental that the fiduciary's interpretation first must be "wrong' from the perspective of de novo review before a reviewing court is concerned with the self-interest of the fiduciary." Id. (quoting Brown, 898 F.2d at 1566 n. 12).
DE Novo Review
A decision is wrong if after reviewing the plan documents and disputed terms de novo, the court disagrees with the administrator's decision. HCA Health Services, 240 F.3d at 993 n. 23.
Plaintiffs long term disability insurance plan defines "total disability" as follows:
"Total Disability" means a period which begins while you are insured, which is due to an accidental bodily injury, or sickness, and during which: (a) for the first 6 consecutive months (the waiting period) you are completely unable to perform any and every duty under your contract with the Company; and (b) beginning with the 7th consecutive month you are completely unable to do any job for compensation or profit for which you are or may become reasonably qualified by education, training or experience. For purposes of this Plan, "Sickness" includes pregnancy and MENTAL, NERVOUS AND EMOTIONAL DISORDER. (Emphasis in the original).
(Dkt. 36, Evans Aff. ¶ 7, Ex. A, pg. 83). Thus, under the Plan, Plaintiff can only be deemed to have a "total disability" if by the seventh (7th) consecutive month of his disability, on July 7, 1997, he was completely unable to perform any job for which he was or could become qualified by his education, training or experience.
Plaintiff argues that the cumulative impact of all of his illnesses rendered him totally disabled. He contends that if Defendants would have considered all of his physical and mental injuries or sicknesses, they would have found him totally disabled as defined in the Plan. According to Plaintiff, his disability resulted from major depression, anxiety disorder, short-term memory loss, obsessive compulsive traits, hypertension, cardiac arrhythmia and lumbar disc disease. (Dkt. 33). In Plaintiff's claim for disability, however, he asserted only that the nature of his sickness or injury was "[d]epression, stress, anxiety after death of spouse." (Dkt. 30, Frazier Aff. ¶ 6, Ex. 2). As evidence of his alleged disability, Plaintiff also submitted evidence relating to cardiac arrhythmia and lumbar disc disease. (Dkt. 30, Frazier Aff. ¶¶ 9-10, Exs. 7, 10-14). Even considering the cumulative effects from all of Plaintiff's illnesses and sicknesses that are documented in this administrative record, Plaintiff was not totally disabled under the Plan.
Plaintiff has argued that evidence outside of the administrative record for his claim for long term disability insurance benefits should be considered by the Court. Specifically, Plaintiff seeks consideration of evidence submitted in his claim for income loss benefits, including the results of an independent medical examination by Donald Taylor, Jr., M.D. and consideration of the definitions in a whole life insurance policy issued by New York Life. See (Dkt. 33, pgs. 3-4 and Dkt. 37, ¶¶ 4-7). in this case, Defendants' coverage decisions are subject to heightened arbitrary and capricious standard analysis. Under that analysis, only the evidence before the Defendants at the time the benefits decision was made may be considered in ruling upon a claim under 29 U.S.C. § 1132(a)(1)(B). See Brown v. Blue Cross and Blue Shield of Alabama. Inc., 898 F.2d 1556 (11th Cir. 1990); Jett v. Blue Cross and Blue Shield of Alabama. Inc., 890 F.2d 1137(11th Cir. 1989). The evidence Plaintiff urges the Court to consider was not part of the administrative record of Plaintiff's claim for long term disability insurance benefits. Plaintiff could have, but did not submit such evidence to Defendants during their review of that claim or include it as part of his appeal of the Defendants' denial of his claim. See e.g. Levinson v. Reliance Standard Life Ins. Co., 245 F.3d 1321 (11th Cir. 2001) (holding that, in affirming a decision not to remand for consideration of new medical reports, following the reasoning of the Eighth Circuit in Davidson v. Prudential Ins. Co. of Am., 953 F.2d 1093 (8th Cir. 1992), "if Davidson believed the evidence he now offers was necessary for Prudential to make a proper benefits determination, Davidson should have . . . submitted it to Prudential."). Thus, if Plaintiff believed evidence outside of the administrative record was necessary for Defendants' consideration of his claim, it was incumbent upon him to raise it in the administrative record of this claim. Additionally, the income loss policy and whole life insurance policy are not relevant here. Plaintiff himself admits that the policies include a definition of "total disability" that is different from the definition applicable to this case. For these reasons, the evidence outside of the administrative record cannot be considered here and Defendants' Motion to Strike Affidavit and Supporting Documents to Plaintiff's Memorandum of Fact and Law in Opposition (Dkt. 40) has been granted in a separate Order.
The evidence submitted by Plaintiffs own physicians indicates that he could perform at least some work. With respect to Plaintiffs physical illnesses or injuries, Dr. Haroon noted that Plaintiff's hypertension was "well controlled" by March 1997, an echocardiogram showed normal results in February 1997 and that his physical status was stable. (Dkt. 30, Frazier Aff. ¶ 9, Ex. 7). On June 9. 1997, Dr. Haroon informed Defendants in a letter that "[a]fter examination and going over this gentleman's problem, I feel he is simply suffering from acute stress reaction with everything that has happened in his life and the current stress of his job. Since he has stopped working he has improved." (Dkt. 30. Frazier Aff. ¶ 10, Ex. 10). Dr. Haroon continued, "It is my medical opinion that he should be able to return to his previous work duties within the next few months." Id. Although Dr. Haroon did indicate on a form he completed in June 1997 that Plaintiff was totally disabled, he also opined that Plaintiff should be able to return to work in October 1997. Id.
Dr. Haroon found no signs that Plaintiff suffered from coronary artery disease and concluded that he was physically stable. Id. Dr. Haroon's findings do not support Plaintiffs argument that consideration of Plaintiff's physical illnesses along with his mental illness would have resulted in a finding of total disability. To the contrary, Dr. Haroon found that physically, Plaintiff was stable and all of the investigations concerning Plaintiffs physical condition were "negative." (Dkt. 30, Frazier Aff. ¶ 10, Ex. 10). Dr. Haroon confirmed that there was no physical limitation to Plaintiff returning to work in October 1997. Id. It was Plaintiff's mental illness that led Dr. Haroon to state in a letter to Defendant in November 1997, "I was sure that with the tincture of time and help of tranquilizers that he was going to get better, but so far, he has not. I have recently referred him to a psychologist for further help . . . ." Id.
Dr. White, Plaintiffs orthopaedic physician, treated Plaintiff beginning in March 1991 for back pain. (Dkt. 30, Frazier Aff. ¶ 9, Ex. 7). In the information Plaintiff provided to Dr. White, Plaintiff reported that he was not presently out of work due to his medical condition. Id. Dr. White found that Plaintiff had a bulging disc, but concluded in May 1999 that "[t]here is no reason for us to do anything at this time unless the symptoms become intolerable and unmanageable. At that point. I think that just a fusion at L 4-5 probably would resolve a majority of his complaints." Id. Thus, Plaintiffs back pain could have been treated if necessary. He could have pursued the option suggested by Dr. White if the condition was unmanageable. Instead, he saw Dr. White sporadically on an as needed basis. The medical records reflect that Plaintiff only saw Dr. White one time in 1996, the year Plaintiff's wife passed away. Dr. White also recommended that Plaintiff abstain from heavy lifting, repetitive lifting, bending and twisting. Id. He did not recommend complete bed rest or that Plaintiff abstain from moving entirely. Dr. White treated Plaintiff by prescribing medication on an as needed basis. Id. He never opined that Plaintiff was completely unable to perform some work.
The physical injuries or illnesses Plaintiff suffered from did not cause Plaintiff to be totally disabled under the definition of "total disability" in the Plan. Nor could they cumulatively result in a finding of "total disability" when considered along with Plaintiff's mental illness. Plaintiffs numerous test results showed no evidence of coronary artery disease and Plaintiff's hypertension was under control.
Drs. Barnett, Wolin and Haroon did find that Plaintiff suffered from an anxiety disorder and depression. However, none of them opined that those ailments rendered Plaintiff completely unable to perform any work. Rather, Drs. Wolf and Barnett recommended that Plaintiff avoid stressful employment and concluded that he was disabled from competitive employment and should not perform sales work or have any client responsibilities. Additionally, Plaintiffs social worker, Ms. Puma, noted that Plaintiff was making some progress. She did find that despite the progress, Plaintiff was still impaired. Even if Plaintiff remained impaired as suggested by Ms. Puma, Drs. Wolf and Barnett believed that Plaintiff could nonetheless perform some work.
This is not a case in which the Defendants failed to seek outside review of Plaintiff's medical records. See. e.g., Levinson, 245 F.3d at 1326 (decision denying benefits was arbitrary and capricious when administrator did not rely on independent medical evidence and there was little evidence to contradict treating physician's conclusion of disability); Brown, 898 F.2d at 1564 n. 11 (suggesting fiduciary has affirmative duty to gather information bearing on fiduciary's claim). Here, Defendants arranged for an independent physician, Dr. Slack, to review Plaintiff's medical records and for a vocational consultant, Ms. Meckes, Ed. M. COMS, to interview Plaintiff. Both independent reviewers found that Plaintiff was not disabled. From the records he reviewed, Dr. Slack observed that plaintiff "experienced brief psychiatric symptomatology following the death of his wife and emerging responsibility of a single parent for his young children." (Dkt. 30, Frazier Aff. ¶ 17, Ex. 24). Dr. Slack also observed that Plaintiff's work performance "could be mildly interfered with during the most significant acuity," but that his treating physicians have documented Plaintiff's continued improvement and remission from major depression.Id. Importantly, Dr. Slack noted an absence of any history of psychiatric hospitalization, psychotic illness, dementia and suicide attempts. Id. Dr. Slack concluded that a "thorough review of the [Plaintiff's medical records] provided does not demonstrate support, from a psychiatric perspective, for a significant mental impairment sufficient to preclude employment from any and all occupations" for Plaintiff. Id.
In addition, Ms. Meckes' interview of Plaintiff shows that Plaintiff did not consider himself totally disabled. (Dkt. 30, Frazier Aff. ¶ 11, Ex. 15). Plaintiff reportedly felt that the psychiatric and medical treatment he received was successful and he expected that he would return to his former employment. Id. Ms. Meckes also performed a transferrable skills analysis to determine other potential employment positions for which Plaintiff was qualified or could become qualified. As Plaintiff had graduated from college with a bachelor of science degree in finance and had earned professional designations including Chartered Life Underwriter and Chartered Financial Consultant, Ms. Meckes found that Plaintiff could work as an insurance agent, financial planner, insurance claims adjuster or a general merchandise sales representative. Id.
Given the evidence from Plaintiffs own physicians and the independent medical review and interview of Plaintiff, the Defendants were not wrong in their determination that Plaintiff did not meet the definition of "total disability" under the Plan. Plaintiff understandably suffered from major depression and anxiety after his wife's death. However, even considering the cumulative effect of Plaintiff's illnesses, his physical condition was stable and he could perform non-competitive employment by July 1997 as long as he refrained from heavy lifting, repetitive lifting, bending and twisting.
As the Defendants' decision was not wrong from the perspective of de novo review, it is not necessary to consider the self-interest of the Defendants. See Brown, 898 F.2d at 1566 n. 12. Accordingly, it is
ORDERED AND ADJUDGED that Defendants Motion for Summary Judgment (Dkt. 27) is GRANTED. The Clerk is directed to deny any pending motions as moot and close this case.