Plaintiffs were beneficiaries of the United Staffing Medical Plan. The relevant plan documents contained the Firestone language, naming United Staffing as the Plan Administrator and Named Fiduicary, but identifying an independent third party, Everest Administrator, as responsible for the review of claims. Both United and Everest were sued for denial of benefits and breach of fiduciary duty. Applying a de novo standard, benefits were awarded by the district court. On appeal, the Tenth Circuit, citing traditional trust principles, noted that “a fiduciary’s decision to delegate does not violate his responsibility to the trust beneficiary insofar as the fiduciary himself remains personally liable for any decisions taken on his behalf.” Hence, “once a health plan administrator has been delegated discretionary authority under the terms of the ERISA plan, nothing prevents that administrator from then delegating portions of its discretionary authority to non-fiduciary third parties…. United Staffing’s decision to delegate limited authority to Everest Administrators according to the terms of the controlling Plan instrument…. does not constitute a failure of fiduciary judgment sufficient to warrant de novo review.” The Court further held that Everest could not be held liable under 29 U.S.C. 1132(d)(2), and the matter was remanded for review, under the arbitrary and capricious standard, of the denial of benefits claim. Judge Holloway, dissenting, found the majority’s decision “critically flawed because its underpinning is the unsupported assumption that ‘discretion was exercised by some combination of the fiduciary and its agent.’ Any suggestion that the agent exercised discretion is not supported by the evidence concerning how the claims were handled and is directly contrary to the contractual provision governing the relationship between the fiduciary and the agent. Further, both the fiduciary and the agent specifically denied in their pleadings, under constraints of Fed. R. Civ. P. 11, that the agent exercised any discretion. And the record is clear that the fiduciary, United, did nothing at all. Consequently, the majority’s naked assertion that some combination of the fiduciary and its agent exercised discretion is simply that – a naked assertion completely lacking in support.”See Geddes v. United Staffing Alliance Medical Plan, 469 F.3d 919 (10th Cir. 2006).