Michelle Sandy's disability benefits were terminated when Reliance Standard Life Ins. Co., her ERISA Plan's Administrator, determined that she could perform her regular occupation as an accountant at Toshiba American Medical Systems. She filed suit, and the district court -before our decision in Kearney v. Standard Ins. Co., 175 F.3d 1084 (9th Cir. 1999) (en banc) -held that the Plan conferred discretionary authority on Reliance, reviewed Reliance's decision for abuse of discretion, and found none.

The ERISA Plan in this case requires a participant to "submit satisfactory proof of total disability" to the Plan administrator (Reliance). If Reliance denies the claim, it must provide "the specific reason or reasons for denial with reference to the policy provisions on which the denial is based" along with a description of additional materialor information necessary to complete the claim. If the denial is appealed, Reliance must make a "full and fair review"; it may "require additional documents as it deems necessary or desirable in making such a review"; and "the final decision on review shall be furnished in writing and shall include the reasons for the decision with reference, again, to those policy provisions upon which the final decision is based."

The question is whether, in the post-Kearney world, this suffices to confer discretion on Reliance such that judicial review of its discontinuation of benefits should be for abuse of discretion, or de novo. We think the answer must be de novo.

It is easy to see why the district court concluded otherwise, for before Kearney we had never said that a clause requiring "satisfactory proof" was insufficient to confer discretion, or that language to this effect, together with language relating to the claims procedure and determination of continuation or termination of benefits, was insufficient to grant the discretionary authority necessary for invoking an abuse of discretion standard.1 However, in Kearney, we tightened the reins. First, we reiterated the rule from Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989), that " `denial of benefits challenged under [29 U.S.C.] S 1132(a)(1)(B) is to be 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.' " Kearney, 175 F.3d at 1089 (quoting Firestone , 489 U.S. at 115) (alteration in original). As we explained,"[t]hat means the default is that the administrator has no discretion, and the administrator has to show that the plan gives it discretionary authority in order to get any judicial deference to its decision." Kearney, 175 F.3d at 1089. The Plan at issue in Kearney stated that Standard, the Plan Administrator, would pay disability benefits "upon receipt of satisfactory written proof that you have become DISABLED." Standard argued that the word "satisfactory" implied discretion, but we held that it did not because the phrase is ambiguous."Only by excluding alternative readings as unreasonable could we conclude that the conferral of discretion is unambiguous." Kearney, 175 F.3d at 1090. Thus, a plan will not sufficiently confer discretion sufficient to invoke review for abuse of discretion just because it includes a discretionary element. Rather, the power to apply that element must also be "unambiguously retained" by the administrator. Id. (quoting Bogue v. Ampex Corp., 976 F.2d 1319, 1325 (9th Cir. 1992), cert. denied, 507 U.S. 1031 (1993)).

Reliance argues that its "satisfactory proof" language is different from Standard's in Kearney, and it is -but not meaningfully so. No matter how you slice it, requiring a claimant to submit "satisfactory proof" does not unambiguously confer discretion under Kearney.2 See also Newcomb v. Standard Ins. Co., 187 F.3d 1004, 1006 (9th Cir. 1999) (provision requiring "satisfactory written proof of loss" controlled by Kearney; and language providing that claimant must submit "written authorization for STANDARD to obtain the records and information needed to determine eligibility for LTD BENEFITS"does not unambiguously retain discretion because the primary function of this provision was to inform the claimant that he had to provide authorization, not to confer discretion).

Nor, under Kearney, is discretion conferred by way of the parcel of duties set out in the Summary Plan Document's "full and fair review" provisions. Reliance maintains that even apart from requiring satisfactory proof of disability, language which requires a statement of reasons for denial of benefits and provides for "full and fair review" of a claim on appeal necessarily implies discretion. Sandy contends that this language is just as ambiguous as "satisfactory proof " because it, too, can be read in three ways: to say that Reliance is required to use an objectively full and fair procedure in reviewing claims appeals; to say that Reliance would have to arrive at a substantively fair result; and to say that Reliance is required to make a subjective determination, pursuant to its fiduciary duty, as to whether a disability exists. Reliance does not argue this is incorrect so much as it points out that the "full and fair review" language is almost exactly the same as the Plan which we held conferred discretion in Patterson v. Hughes Aircraft Co., 11 F.3d 948, 949-50 (9th Cir. 1993). Regardless, Sandy counters, it cannot survive Kearney because the "full and fair review" provision simply tracks the statutory mandate in 29 U.S.C. S 1133.3 If reciting the statutory language confers discretion sufficient to warrant review for abuse of discretion, then the statute itself confers discretion and no review would ever be de novo -which would be contrary to Firestone.

We need not tarry long with these arguments, because it seems clear to us that de novo review is required under Kearney. Even if Patterson survives, we indicated that the Hughes Plan at issue there "grants the plan administrator power to determine eligibility, and grants Centennial, as the administrator's fiduciary, authority to review that determination." Patterson, 11 F.3d at 949. While the specific provisions we noted do not do this unambiguously,4 we take our statement at face value and on this footing distinguish the plan in Patterson from the plan in this case.

Here, unlike other plan provisions we have held conferred discretion, there is no language conferring authority on Reliance to determine eligibility, to construe the terms of the Plan, or to make final and binding determinations. For example, the plan in Bogue, 976 F.2d at 1324, stated that "[t]he determination . . . will be made by Allied-Signal upon consideration of whether the new position . . . has responsibilities similar to those of your current position"; the plan in Eley v. Boeing Co., 945 F.2d 276, 278 n.2 (9th Cir. 1991), provided that "[t]he Company shall determine the eligibility of a person for benefits under the plan, pursuant to the terms and conditions specified"; and the plan in Jones v. Laborers Health & Welfare Trust Fund, 906 F.2d 480, 481 (9th Cir. 1990), specified that "[t]he Board of Trustees shall have power . . . to construe the provisions of this Trust Agreement and thePlan, and any such construction adopted by the Board in good faith shall be binding." Recently, we concluded in McDaniel v. Chevron Corp., 203 F.3d 1099, 1107 (9th Cir. 2000) that a plan which gave the administrator "sole discretion to interpret the terms of the Plan" and whose interpretations "shall be conclusive and binding" conferred discretion sufficient to overcome the presumption in favor of de novo review; and in Bendixen v. Standard Ins. Co., 185 F.3d 939, 943 & n.1 (9th Cir. 1999), we held that language which acknowledged that "we have full and exclusive authority to . . . interpret the Group Policy and resolve all questions arising in the . . . interpretation, and application of the Group Policy" along with a provision that "any decision we make in the exercise of our authority is conclusive and binding" "clearly " confers discretion to decide whether a claimant is disabled.

In the absence of some such language, Kearney does not permit discretion to be inferred simply from the fact, standing alone, that Reliance is making benefits decisions for which it must give reasons. Although the "full and fair review" language does connote discretionary decisionmaking, it does not unambiguously grant Reliance power to determine eligibility, power to construe the terms of the Plan, or power to make decisions that are final and binding.

This appears to be easy enough to do, if plan sponsors, administrators or fiduciaries want benefits decisions to be reviewed for abuse of discretion. Otherwise, in this circuit at least, they should expect de novo review.5

Although different circuits approach the standard of review somewhat differently,6 we see great value in clarity(no matter what the rule is). Kearney has settled the rule for us. That being so, there is little point in litigating the standard of review in every ERISA case where benefits have been denied. To do so is expensive, time-consuming, and draining for the parties as well as the courts. Moreover, the process by which benefits disputes are resolved should be more efficient, not less. Neither the parties nor the courts should have to divine whether discretion is conferred. It either is, in so many words, or it isn't. For sure, there is no magic to the words "discretion" or "authority" -but we're not at Hogwarts. Therefore, it should be clear: unless plan documents unambiguously say in sum or substance that the Plan Administrator or fiduciary has authority, power, or discretion to determine eligibility or to construe the terms of the Plan, the standard of review will be de novo.

We must, therefore, remand for the district court to decide whether Relianceproperly determined that Sandy was no longer disabled.7

REVERSED AND REMANDED.