Ronald Lehn v. GE Pension Plan ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2430
M ARY B ETH P ONSETTI, Trustee of the
Ronald J. Lehn Declaration of Trust
dated July 25, 2002,
Plaintiff-Appellant,
v.
GE P ENSION P LAN, GE S AVINGS AND
S ECURITY P ROGRAM, and G ENERAL
E LECTRIC C OMPANY,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of Illinois.
No. 07-1180—Michael M. Mihm, Judge.
A RGUED A PRIL 16, 2010—D ECIDED JULY 30, 2010
Before E ASTERBROOK, Chief Judge, F LAUM, Circuit Judge,
and H IBBLER, District Judge. 1
1
The Honorable William J. Hibbler, District Judge for the
Northern District of Illinois, sitting by designation.
2 No. 09-2430
F LAUM, Circuit Judge. This is an appeal from a district
court order granting summary judgment in favor of the
defendant benefit plans and company. Plaintiff-appellant
alleged that defendants breached their fiduciary duty
and their obligation to provide a “full and fair” review of
a request for claims when they refused to disburse cash
to a trust fund established by a former employee of Gen-
eral Electric. Both parties agree that by default, under the
Employee Retirement Income Security Act (“ERISA”), 29
U.S.C. §§ 1001 et seq., money should go to the surviving
spouse of the decedent. They also agree that decedent did
not execute a valid transfer of entitlements to the plaintiff
Trust. The plans required that any such change involve
a form that bore the signature of the beneficiary, the
signature of the spouse consenting to a transfer of benefits,
and the signature of a notary or plan representative
witnessing the prior two. At one point, decedent brought
in the appropriate form to work with his signature on it
and another he claimed belonged to his wife. A notary
public signed it, but later swore in an affidavit that she
did not actually witness the two principal signatures
and that her certification was invalid. The Trustee ac-
knowledges all of this, but nonetheless attempts to
mount a collateral attack on the plans’ decision to dis-
burse money to the then-living spouse (the one bene-
ficiary recognized by law). We affirm.
I. Background
Defendants-appellees GE Pension Plan and GE Savings
and Security Program (collectively, “the Plan”) are benefit
No. 09-2430 3
plans organized under ERISA. Defendant General Electric
Company (“GE”) operated a facility in Ottawa, Illinois.
The Plan designated GE as its administrator.
Decedent, Ronald J. Lehn (“Lehn”) was employed by
GE at the Ottawa facility. Lehn had two children from
a prior marriage, Samuel Lehn (“Samuel”) and Sarah Lehn
(“Sarah”). He married Lisa Lehn on June 6, 1991, and
remained married to her until his death. On June 3, 1991,
he designated Lisa Lehn as his primary beneficiary
under the Plan. By 2002, Lehn’s retirement accounts
with the Plan exceeded a million dollars. After consulting
with an attorney, Lehn signed a Declaration of Trust on
July 25, 2002 (“the Trust”), to implement his estate plan.
The Trust provided that following payment of expenses
and taxes, the Trustee was directed to pay 25% of the
principal and undistributed income to Lehn’s spouse,
Lisa Lehn; 25% of the principal and undistributed
income to Samuel; 25% of the principal and undistributed
income to Sarah; and 25% of the principal and undistrib-
uted income to Lehn’s siblings and parents.
Sometime prior to March 2005, Lehn contacted em-
ployees at GE’s Ottawa facility to obtain a Beneficiary
Designation (“BD”) form. On March 27, 2005,2 he presented
2
Appellant’s original complaint states: “On March 7, 2005, Lisa
Lehn and the decedent, Ronald Lehn, executed the attached
Exhibit B.” Exhibit B is the GE Benefits Plans Beneficiary
Designation form, which is dated “27 March 2005” next to
Lehn’s signature. This date comports with the one mentioned by
(continued...)
4 No. 09-2430
to GE the signed BD form designating the Trustee as
the primary beneficiary and recipient of all of his benefits
under the Plan. The form bore the following language:
STOP—If you are married your spouse is automatically
your only primary beneficiary under the GE Pension
and Savings & Security Plans. If you wish to name
someone other than your spouse as primary benefi-
ciary for these plans you must do the following:
1) complete and sign this designation form; 2) obtain
your spouse’s signature on this designation form;
AND 3) complete and obtain the required sig-
natures on the Consent Form which accompanies
this designation form.
Likewise, the Plan specifically provided that if a par-
ticipant is married at the time of his death, his spouse
will be the automatic beneficiary of any death benefits
payable under the Plan unless the spouse consents to
the designation of a different beneficiary in accordance
with specific procedures. Among other requirements, the
spouse’s consent must acknowledge the effect of the
decision to waive benefits, and the spouse’s signature
2
(...continued)
Joyce Anderson, GE Benefits Counsel, in her December 5, 2006
letter. The district court referred to the document by the
erroneous date introduced in the complaint, but we will rely on
the actual marking for our shorthand. Curiously, elsewhere
in their briefs, appellants describe the document as the
“March 27, 2005 Designation of Beneficiary Form.” The form
is stamped “APR 11 2005.”
No. 09-2430 5
must be “witnessed by a Plan representative or notary
public.” These criteria parallel the ERISA rule that a
spouse may waive his or her right to death benefits
under a retirement plan only if the spouse’s consent
acknowledges the effect of the waiver “and is witnessed
by a plan representative or notary public.” 29 U.S.C.
§ 1055(c)(2)(A)(iii).
After Lehn attempted to submit the March 27, 2005
BD form, a GE employee informed him that he had to
provide evidence of spousal consent in order to designate
his trust as a beneficiary. On April 6, 2005, Lehn presented
Karen Riveland, an administrative assistant employed
at the GE plant who was licensed as an Illinois notary
public, with a spousal consent form bearing a signature
purporting to belong to Lisa Lehn. The consent form
itself included a statement that the spouse’s consent
must be witnessed by the notary. Riveland, whose
usual duties included handling travel arrangements
and performing clerical tasks, signed the form. On April 11,
2005, Lehn submitted this consent form to GE along
with the BD form directing the Plan to pay death benefits
to appellant Trust.
Lehn died on November 8, 2005. On November 11, 2005,
Susan VanderVoort, GE Benefits Specialist, sent a letter
to Lisa Lehn, advising her that GE was aware of Lehn’s
death and that the records indicated that the Ronald J.
Lehn Declaration of Trust was the named beneficiary.
On December 15, 2005, Delia Garcia, acting as Lisa Lehn’s
guardian and representative, submitted a claim for bene-
fits. Garcia stated that “Lisa Lehn did not validly consent
6 No. 09-2430
to the payment of any GE benefits to the Ronald J. Lehn
Declaration of Trust.” Garcia followed up with a letter
dated January 4, 2006 asserting that Lisa Lehn was not
mentally competent on the date of her purported consent.
On March 22, 2006, an Illinois court adjudicated Lisa
Lehn disabled and officially appointed Garcia as her
guardian. Garcia informed VanderVoort of this develop-
ment in a letter dated April 26, 2006. On August 28, 2006,
an attorney for Lisa Lehn submitted to VanderVoort
affidavits from two of Lisa Lehn’s physicians stating
that Lisa’s “cognitive function was severely impaired”
from advanced multiple sclerosis and that Lisa
was “totally incapable of making financial decisions and
understanding financial matters” in March and April
2005. Garcia also forwarded the Plan a letter Ronald
Lehn sent to his health insurance company on Septem-
ber 27, 2005, in which he characterized his wife as
suffering from dementia and a “senile degenerative
brain” disorder since at least June 2004. Said letter de-
scribed Lisa as “confused,” “disoriented,” “combative,”
and “profoundly demented.” Finally, Garcia assembled
evidence showing that Lisa had been concerned about
her ability to cover her escalating medical expenses at
the time of her alleged consent and would not have
waived her right to benefits.
During the summer of 2006, the Plan informed plain-
tiff-appellant about Garcia’s claim that Lisa Lehn could
not have competently waived her rights to the decedent’s
benefits. Raymond Nolasco, attorney for the Trust, called
Riveland and asked if she had notarized the Consent
No. 09-2430 7
Form for Lehn. Riveland indicated that she had and may
have suggested that Lisa Lehn was present when she
notarized the document. Approximately a month later,
Nolasco called Riveland and asked her to sign an af-
fidavit stating that Lisa Lehn was present when Riveland
notarized the Consent Form. Riveland responded that
she could not sign the affidavit because she had never
met Lisa Lehn and that Lisa Lehn was not present when
the Consent Form was notarized. Nolasco then advised
VanderVoort and Joyce Anderson, GE’s in-house Benefits
Counsel, to speak to Riveland about the notarization.
Anderson contacted Riveland, who admitted that Lisa
Lehn was not present when she notarized the Consent
Form and swore to as much in an affidavit. VanderVoort
subsequently received a copy of the letter written by
Lehn on September 27, 2005 that sought medical coverage
for his wife’s inpatient care and described Lisa Lehn
as “profoundly demented.”
On October 19, 2006, the Trust filed a complaint
against GE, the GE Pension Plan, and the Estate of Lisa
Lehn in Illinois Circuit Court. The Trust held off serving
process on defendants to facilitate negotiation. The com-
plaint alleged a breach of fiduciary duty and failure to
pay benefits under ERISA as well as several state-law
violations.
On December 5, 2006, Anderson sent a letter to the
Trust and Garcia advising them that Lisa Lehn’s claim
for benefits was granted while the Trust’s claim was
denied. The letter stated:
Karen Riveland notarized [Lisa Lehn’s] signature.
Karen Riveland is a GE employee in addition to being
8 No. 09-2430
a notary. I spoke with Karen Riveland along with
Sue Vandervoort [sic], the GE Survivor Support team
member who is handling the Lehn matter. Karen
told us that she notarized the form at Ronald Lehn’s
request at work. Lisa Lehn did not appear before
the notary. Without a proper witness, the spousal
consent is invalid.
As the surviving spouse of Ronald J. Lehn, Lisa Lehn
is the primary beneficiary of the Pension and S&Sp
benefits.
Anderson attached Riveland’s affidavit.
Following receipt of the letter, one of the attorneys for
appellants, Melissa Sims, requested additional documenta-
tion from the Plan. Appellees fulfilled this demand and
sent over the Summary Plan Description (“SPD”), Lehn’s
entire claim file, and Karen Riveland’s job description. The
Plan had provided the Trust with a copy of the disputed
consent form on a prior occasion (appellants attached it
to their original state court complaint).
On March 20, 2007, Sims emailed Anderson the
following message:
After careful review, it has been determined that the
intended plan beneficiary designation to the Ronald
Lehn Trust was not legally effectuated based upon
the representations made by your employee, Karen
Riveland.
In that connection [sic], we believe the law is such
that the benefits according to the plan must be paid
over to the surviving spouse, Lisa Lehn. Our com-
No. 09-2430 9
plaint will not be dismissed as we will be adding
a separate count against your client for breach of
fiduciary duty in effectuating the intended plan
beneficiary to the trust.
You should discuss with Attorney John Sandberg the
manner in which the funds must be paid over to his
client, who is currently disabled.
In June 2007, the Trust served process on defen-
dants-appellees, who removed the action to federal court.
On October 29, 2007, the $1,118,283.39 in Lehn’s GE
Savings & Security Program account was paid to the Estate
of Lisa Lehn. On December 1, 2007, the GE Pension Plan
paid out the sums of $115,743.27 and $11,772.74 to Lisa’s
Estate as well.
On July 31, 2008, Judge Mihm granted GE’s motion to
dismiss plaintiff-appellant’s breach of fiduciary duty
claim on the grounds that the complaint did not identify
any of the named defendants as fiduciaries who breached
their duties under ERISA.3 The district court also
3
Two typographical errors in the decision below threaten to
muddle the issues on appeal, but go away with a glance at
subsequent developments in the case. The district court order
ruling on the motion to dismiss began by discussing plain-
tiff’s claim for payment of benefits under 29 U.S.C. § 502(a)(1)(B)
in a segment titled “Section 502(A)(1)(b) [sic].” It then re-
viewed our decision in Butler v. Encyclopedia Brittanica, 41 F.3d
285 (7th Cir. 1994) (finding “appealing” the argument that a
consent form was invalid because the spouse claimed that he
(continued...)
10 No. 09-2430
3
(...continued)
did not sign it in a suit under both §§ 502(a)(1)(B) and 502(a)(3)).
After remarking that the Trust’s posture in the current case
resembles that discussed in Butler, the district court went on to
state that “the resolution of the § 502(a)(3) claim must be
resolved on a more complete factual record following the
limited discovery authorized in this case. Accordingly, this
portion of the GE Defendants’ Motion to Dismiss must be
denied at this time.” The court then moved on to segment B of
the order, entitled “Fiduciary Duty Claim,” where it granted
the motion to dismiss “[p]laintiff’s claim for breach of fiduciary
duty under 29 U.S.C. § 1132(a)(1)(B)” because the Trust con-
ceded that “the Complaint does not identify any GE Defendant
as a ‘fiduciary’ who breached its duties under ERISA.” The
district court then moved on to appellant’s state law claims.
Given the decision’s context, nature of each cause of action,
and the subsequent course of litigation, we read the July 31, 2008
order to have denied the motion to dismiss with respect to the
§ 502(a)(1)(B) claim for payment of benefits and granted it
with respect to the § 502(a)(3) claim for equitable relief. This
interpretation follows the form of the Trustee’s November 30,
2007 Amended Complaint, which reads, in relevant part: “The
Trustee brings this action under Section 502 (a)(1)(B)of ERISA
as a claim for the benefits the Trust is entitled to receive under
the GE Benefits Program. 29 U.S.C. § 1132 (a)(1)(B). Alterna-
tively, she brings this action under Section 502 (a)(3)(B) of
ERISA seeking equitable relief for the GE Plan’s breach of its
fiduciary duty of care. 29 U.S.C. § 1132 (a)(3)(B).” The reading
we adopt also validates the posture of the district court’s
subsequent ruling on defendants’ motion for summary judg-
ment. In any event, in its Jurisdictional Statement and other
(continued...)
No. 09-2430 11
dismissed the Trust’s state law claim under the Illinois
Notary Public Act. Finally, Judge Mihm dismissed all
claims against Riveland and the Estate of Lisa Lehn, noting
that, “[w]ith all due respect, Plaintiff’s explanation for
why the Estate and Garcia were named parties makes
no sense . . . .” In the same order, the district court denied
the Trust’s motion for a jury trial, which is unavailable
under ERISA.
This left only the ERISA § 502(a)(1)(B) claim, which
entitles a person to bring a civil action “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.” Appellant alleged that the Plan’s decision to
deny benefits to the Trust and award them to Lisa Lehn
amounted to an arbitrary and capricious action by an
administrator prohibited by this provision. On May 4,
2009, the district court granted the Plan’s motion for
summary judgment on that issue. It found that documen-
tary evidence of Lisa Lehn’s longstanding illness and
incapacity at the time she allegedly signed the form, the
Riveland affidavit, and
3
(...continued)
parts of the brief, the Trust acknowledges that its § 502(a)(3)
claim is no longer viable and that it is appealing only the
judgment on its action under 29 U.S.C. § 1132(a)(1). Pl. Brief,
at 41 (“On GE’s Rule 12(b)(6) motion to dismiss, plaintiff agreed
the breach of fiduciary duty claim under Section 502(a)(3) of
ERISA was eliminated by payment of the benefits to the sur-
viving spouse.”).
12 No. 09-2430
the admission by Plaintiff’s counsel that the Consent
Form had not been legally effectuated, is clear and
convincing evidence that Riveland’s notarization on
the Consent Form was invalid. The Court must con-
clude that the Plan’s decision reaching the same
conclusion was not arbitrary or capricious, but
rather was imminently reasonable, as was its determi-
nation that the benefits must be paid to Lisa Lehn
under the terms of the Plan documents and ERISA.
The court continued:
Although the Plaintiff erroneously casts her argu-
ment in terms of a breach of fiduciary duty claim, she
then falls back to the argument that the Plan Adminis-
trator acted arbitrarily in processing the claim for
benefits under § 502(a)(1)(B) of ERISA. Assuming
arguendo that such a claim can be asserted against a
plan administrator under § 502(a)(1)(B), Plaintiff’s
argument would still fail. . . . While perhaps not a
textbook example of how competing claims for
benefits should be resolved, the Court finds that the
transactions and exchanges that took place between
GE and the beneficiaries substantially complied with
ERISA’s requirement that specific reasons for a
denial of benefits be communicated to a claimant and
that the claimant be afforded a full and fair review
by the administrator. . . . Thus, even assuming that
Plaintiff could bring a claim for breach of fiduciary
duty in processing benefits pursuant to § 502(a)(1)(B),
the Court concludes that such claim would fail. GE’s
procedures substantially complied with the require-
No. 09-2430 13
ments of ERISA under Hackett, and any deficiencies
did not rise to the level of an arbitrary or capricious
claims processing procedure.
The Trust appeals. Its arguments, though poorly devel-
oped, center around the proposition that the Plan did not
fulfill its obligation to provide a full and fair review of a
claim for benefits. For example, appellant states, “[The
Anderson letter from Dec. 5, 2006] did not state the basis
in the Plan the Plan provision [sic] or the statute on the
form of a Spouse’s Consent. That was the basis of the
decision, which full and fair review requires be stated”
(citing 29 U.S.C. § 1055(c)(2)(A)(i)). Section 1055(c) sets out
the requirements for a valid transfer of benefits from
the default beneficiary spouse to a third person. It is
the section referenced by the Plan in clauses demanding
express spousal consent and notarization. Section
1055(c)(2)(A) explains that a spouse’s election to waive
benefits is valid only if:
(i) the spouse of the participant consents in writing
to such election,
(ii) such election designates a beneficiary (or a form
of benefits) which may not be changed without
spousal consent (or the consent of the spouse ex-
pressly permits designations by the participant with-
out any requirement of further consent by the
spouse), and
(iii) the spouse’s consent acknowledges the effect of
such election and is witnessed by a plan representative
or a notary public . . . .
14 No. 09-2430
Appellant next takes issue with the standard of review
the district court applied to the Plan’s decision, arguing
that the district court should have reexamined the
validity of the spousal consent form de novo as a ques-
tion of law. The Trustee then attempts to append argu-
ments that notary certifications should be interpreted
through a lens of state common law and as testamentary
acts to their already muddled brief. Section 1291 of
Title 28 only grants us jurisdiction over final decisions of
the district courts, here the May 4, 2009, summary judg-
ment order. Accordingly, the Trust is restricted to a
narrow appellate posture on the issue of whether the
district court erred in finding that the Plan complied with
ERISA demands of a full and fair review of benefit claims.
II. Discussion
A. Standard of Review
We review a grant of summary judgment de novo.
Semien v. Life Ins. Co. of N. Am., 436 F.3d 805, 809 (7th Cir.
2006). The party moving for summary judgment bears
the burden of establishing that there is no genuine issue
of material fact and that it is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(c). Any doubt as to the
existence of a genuine issue for trial is resolved against
the moving party. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986).
In litigation over the payment of benefits under ERISA,
our default stance is to examine an administrator’s deter-
mination de novo. Firestone Tire & Rubber Co. v. Bruch, 489
No. 09-2430 15
U.S. 101, 115 (1989); Raybourne v. Cigna Life Ins. Co. of
N.Y., 576 F.3d 444, 448 (7th Cir. 2009). If, however, the
plan explicitly confers discretionary authority to an
administrator to determine whether benefits are due,
we check only that the administrator did not abuse
such discretion. Firestone, 489 U.S. at 115. Here, the
parties do not dispute that the Plan vested absolute
discretion in the administrator, so we will not reverse
unless the action was arbitrary and capricious. Halpin
v. W.W. Grainger, Inc., 962 F.2d 685, 688 (7th Cir. 1992).
That is, we will uphold the administrator’s decision so
long as “(1) it is possible to offer a reasoned explanation,
based on the evidence, for a particular outcome, (2) the
decision is based on a reasonable explanation of relevant
plan documents, or (3) the administrator has based its de-
cision on a consideration of the relevant factors that en-
compass the important aspects of the problem.” Williams
v. Aetna Life Ins. Co., 509 F.3d 317, 321-22 (7th Cir. 2007).
Appellant nonetheless claims that we should review
the Plan’s decision to distribute the funds to Lisa Lehn
de novo for compliance with the requirements of ERISA
§ 502(a)(1)(B). To support this proposition, the Trustee
cites a set of cases that grappled with the boundaries of
discretion conferred to plan administrators in one
narrow area: so-called “deemed denials” of benefits. In
these situations, a set of regulations authorizes indi-
viduals to file suit in federal court to dispute a plan’s
failure to respond to a claim or an appeal within a time
limit proscribed by regulation, generally ranging from
45 to 120 days. See 29 C.F.R. § 2560.503-1(f) (2009). An older
version of the regulation implemented this extension
16 No. 09-2430
of adjudicatory rights by deeming claims met with
silence denied, which in turn made them eligible for
review by a district court pursuant to ERISA § 502, 29
U.S.C. § 1132.4 See generally Jacobson v. SLM Corp. Welfare
Benefit Plan, No. 1:08-cv-0267-DFH-DML, 2009 U.S. Dist.
LEXIS 78597, at *11-14 (S.D. Ind. Sept. 1, 2009). Courts of
Appeals then had to determine whether Firestone, which
requires deferential review of discretionary action by
plan administrators, also compelled similarly hands-off
scrutiny of inaction by said administrators. See, e.g., Nichols
v. Prudential Ins. Co. of Am., 406 F.3d 98 (2d Cir. 2005);
Gilbertson v. Allied Signal, Inc., 328 F.3d 625 (10th Cir. 2003).
The circuits reached conclusions with somewhat varied
contours, but their precise parameters are not at issue
here: the Trustee contests the validity of an overt act by
the Plan, not an omission. Binding current precedent
from this Court demands that upon review, we determine
4
The updated variant of the regulation equates an admin-
istrator’s failure to follow the regulatory timeline with respect
to a claim to the claimant’s exhaustion of administrative
remedies, instead of an outright denial. The maneuver still
entitles the claimant to file suit in federal court under 29 U.S.C.
§ 1132(a). See 29 C.F.R. § 2560.503-1(l) (2009) (“In the case of
the failure of a plan to establish or follow claims procedures
consistent with the requirements of this section, a claimant
shall be deemed to have exhausted the administrative
remedies available under the plan and shall be entitled to
pursue any available remedies under section 502(a) of the Act
on the basis that the plan has failed to provide a reasonable
claims procedure that would yield a decision on the merits
of the claim.”).
No. 09-2430 17
whether this act fell into the spectrum of discretion
allotted to the administrator, not whether it was a con-
clusion we would reach by looking at the problem anew.
Cf. Herzberger v. Standard Ins. Co., 205 F.3d 327, 329 (7th
Cir. 2000) (“The issue is whether language in plan docu-
ments to the effect that benefits shall be paid when the
plan administrator upon proof (or satisfactory proof)
determines that the applicant is entitled to them confers
upon the administrator a power of discretionary judg-
ment, so that a court can set it aside only if it was ‘arbitrary
and capricious,’ that is, unreasonable, and not merely
incorrect, which is the question for the court when
review is plenary (‘de novo’).”).
Thus, appellant’s citations to cases like Jebian v. Hewlett-
Packard Co. Employee Benefits Org. Income Prot. Plan, 349
F.3d 1098 (9th Cir. 2003), and Nichols are at best misguided.
Both decisions concerned the review appropriate for
deemed denials and reached the conclusion that such
automatic decisions must be scrutinized more closely
than reasoned interpretations of plan requirements. Cf.
Sanford v. Harvard Indus., 262 F.3d 590, 597 (6th Cir. 2001).
Prior to embarking on the non-deferential review, the
Ninth Circuit expressly distinguished instances where
a beneficiary attempts to pinpoint some procedural flaw
in a discretionary plan action done in good faith from
ultra vires steps that cannot receive deference:
We have held previously that procedural violations
can affect the merits determination concerning
whether an abuse of discretion has taken place. Blau v.
Del Monte Corp., 748 F.2d 1348 (9th Cir. 1984), ruled
that “ordinarily, a claimant who suffers because of a
18 No. 09-2430
fiduciary’s failure to comply with ERISA’s proce-
dural requirements is entitled to no substantive rem-
edy,” but that if procedural violations result in “sub-
stantive harm,” then “a court must consider [such
violations] in determining whether the decision to
deny benefits in a particular case was arbitrary and
capricious.” Blau, 748 F.2d at 1353-54.
...
For present purposes, however, we leave the more
general issue open and decide only that where the
plan itself provides that a particular procedural viola-
tion results in an automatic decision rather than one
calling for the exercise of the administrator’s discre-
tion, that provision is as enforceable as the provision
giving the administrator discretionary authority
under other circumstances. Deference to an exercise
of discretion requires discretion actually to have
been exercised.
349 F.3d at 1105-06 (emphasis added). The procedural
violation at issue in Jebian was a plan’s failure to abide
by its own contractual procedures for denying claims by
default. The Trustee here has not alleged a similar
breach and wouldn’t fare any better even if it did
because our own precedent mandates that we review
the statutory adequacy of procedures employed by a
discretionary plan for abuse of discretion. Hackett v.
Xerox Corp., 315 F.3d 771, 774-75 (7th Cir. 2003).
Other cases cited by appellant are similarly inapposite.
Krohn v. Huron Memorial Hospital, 173 F.3d 542 (6th Cir.
1999), concerns the scope of a fiduciary’s statutory duty
No. 09-2430 19
to disclose information in response to a beneficiary’s
questions. Gaither v. Aetna Life Insurance Co., 394 F.3d
792 (10th Cir. 2004), deals with the extent of a plan’s
contractual and statutory obligation to investigate the
nature of a claimaint’s disability and ends up applying
arbitrary and capricious review, though in part due to
appellant’s decision not to ask for closer scrutiny. The
Tenth Circuit there asserted “the narrow principle that
fiduciaries cannot shut their eyes to readily available
information when the evidence in the record suggests
that the information might confirm the beneficiary’s
theory of entitlement and when they have little or no
evidence in the record to refute that theory.” Id. at 807.
In this sense, the most salient aspect of Gaither works
directly against the Trustee’s efforts to impugn on pro-
cedural grounds the validity of a decision by appellees
to which the Trustee herself acceded.
We therefore inquire only whether the Plan’s decision
to pay out benefits to Lisa Lehn was reasonable, mindful
that “[r]eview under the deferential arbitrary and capri-
cious standard is not a rubber stamp and deference
need not be abject. Even under the deferential review
we will not uphold a termination when there is an
absence of reasoning in the record to support it.” Hackett,
315 F.3d at 774-75; Hess v. Hartford Life & Accident Ins.
Co., 274 F.3d 456, 461 (7th Cir. 2001).
B. Failure to Pay Benefits
Sections 503 and 505 of ERISA require that “specific
reasons for denial be communicated to the claimant
20 No. 09-2430
and that the claimant be afforded an opportunity for
‘full and fair review’ by the administrator.” Halpin, 962
F.2d at 688-89; see also 29 U.S.C. § 1133; 29 C.F.R.
§ 2560.503-1 (2009). Substantial compliance is sufficient
to meet this standard. Halpin, 962 F.2d at 690. The
inquiry into whether termination procedures substan-
tially complied with the demands of 29 U.S.C. § 1133is fact-intensive and “guided by the question of whether
the beneficiary was provided with a statement of reasons
that allows a clear and precise understanding of the
grounds for the administrator’s position sufficient to
permit effective review.” Hackett, 315 F.3d at 775.
As explained by the district court and apparent even
from appellant’s statement of facts, the Plan’s decision to
deny the Trust’s claim was reasonable and properly
communicated. The Trust does not base its contrary
position on the contention that Lisa Lehn actually con-
sented to the transfer of benefits, and with good reason—
in the face of overwhelming evidence, its counsel ad-
mitted the opposite in her March 20, 2007, email. Instead,
appellant seeks to deny the Plan the right to use this same
evidence to distribute benefits pursuant to federal law.
The Trust cannot succeed in this endeavor. The rec-
ord before us shows without ambiguity that appellees
conducted a diligent, if unusual, investigation prior to
reaching a conclusion that appellants acknowledge to be
accurate. All available evidence in this case points to
the fact that Riveland did not witness Lisa Lehn’s signa-
ture and the Plan administrator did not act unreasonably
when finding as much. The Plan then distributed much
No. 09-2430 21
of this evidence to appellants and summarized the rest
in substantively detailed correspondence that satisfies
the requirements of 29 U.S.C. § 1133. In a case where
plaintiffs-appellants filed a complaint long prior to any
adverse determination and then used their counsel to
engage in protracted negotiations under threat of
moving forward with the action, the Plan duly accorded
their position full and fair review.
The Trust argues that “Judge Mihm [improperly] left
the decision on the effect of a notary’s recantation of her
certification to the discretion of the Plan Administrator.
Here that confirmed a truly arbitrary decision because
GE gave no consideration to the strong presumption of
the validity of a notary certification.” Appellant then
proceeds to cite a variety of cases establishing the pre-
sumptive validity of testamentary documents and
notary certifications. See, e.g., Colton v. Colton, 127 U.S. 300,
309 (1888) (discussing rules of construction for wills).
Most are from the nineteenth century. Appellants argue
that together, these mean that the Plan was not entitled
to disregard the spousal consent form just because a
notary subsequently cast doubt on the validity of her
certification.
This argument has little to do with the actual question
before us. The Plan disregarded the spousal consent form
not “just” on the basis of Riveland’s negative affidavit,
but also because of the voluminous evidence of Lisa
Lehn’s incapacity at the time she supposedly signed the
document. Even the Trust does not claim that Lisa Lehn
actually executed the waiver on March 27, 2005. Thus, the
22 No. 09-2430
totality of the circumstances in this case unambiguously
undermines the validity of the consent form.
By contrast, the cases cited by appellant deal with
situations where an individual attempts to dispute the
validity of his or her own signature on the basis of a
faulty notarization or an unreliable witness. For example,
in Butler v. Encyclopedia Brittanica, 41 F.3d 285 (7th Cir.
1994), we held that a spouse who admitted signing
an ERISA benefit waiver form could not himself later
undo the effect of this signature by claiming that the
form was not properly witnessed by a notary or plan
representative. Id. at 293. Based on the unremarkable
proposition that “a notary public’s certificate of acknowl-
edgment, regular on its face, carries a strong presump-
tion of validity,” we held that testimony from an
obviously self-interested witness (the plaintiff) was not
enough evidence to cast aside the waiver.5 We explicitly
5
The Butler opinion characterized this result as an absence
of “clear and convincing evidence” that the notarization was
faulty. 41 F.3d at 295. Appellant hangs much of its argument
on this phrase and implores us to read the decision as estab-
lishing either an alternative level of review for administrative
decisions dealing with notarized documents or a higher
burden of proof for a Plan seeking to establish the validity
of discretionary decisions implicating such documents. As we
explained earlier, our precedent rejects the first request. The
second proposition also goes nowhere because of this Court’s
strong interest, reinforced by instructions from the Supreme
Court, in maintaining the uniform weight of federal civil
(continued...)
No. 09-2430 23
and repeatedly referenced the record to reach this con-
clusion. Accordingly, our comment that “[i]f a notary’s
certificate were vulnerable to attack every time an inter-
ested witness contradicted the certificate and the
notary did not have a personal recollection of the event, ‘it
would shock the moral sense of the community, deny
justice, and create chaos in land titles[]’ and every other
type of document requiring notarization,” 41 F.3d at
295, does not mandate reversal in this case.
This conclusion is in line with the relevant older deci-
sions of the Supreme Court. See, e.g., Young v. Duvall, 109
U.S. 573, 577 (1883) (requiring proof “of such a character
as will clearly and fully show the certificate to be false
or fraudulent” to contradict a certificate of acknowledg-
ment to a conveyance of real estate); Ins. Co. v. Nelson, 103
U.S. 544 (1880) (finding that testimony by wife that hus-
band physically forced her to sign a mortgage on her
property was not enough to void a transfer of the land
where all other witnesses to the transaction were dead
and her signature looked normal). These decisions
5
(...continued)
judgments. To implement this interest, we presume that a
preponderance of the evidence is enough to prove any fact in a
civil suit. See Herman & Maclean v. Huddleston, 459 U.S. 375,
391 (1983) (applying the “preponderance-of-the-evidence
standard generally applicable in civil actions” to suits under
§ 17(a) of the 1933 Securities Act). We will not deviate from
this position unless a statute demands otherwise. See id. at 388-
89; see also Grogan v. Garner, 498 U.S. 279, 287-88 (1991).
24 No. 09-2430
retain authority in the wake of Erie Railroad Co. v. Tompkins,
304 U.S. 64 (1938), because they form the federal
common law of contracts applied to ERISA plans and the
federal common law of trusts that provides a theoretical
foundation for the statute itself. See Marrs v. Motorola,
Inc., 577 F.3d 783, 787 (7th Cir. 2009); Ruttenberg v. United
States Life Ins. Co., 413 F.3d 652, 659 (7th Cir. 2005). See
generally Mondry v. Am. Family Mut. Ins. Co., 557 F.3d 781,
805-06 (7th Cir. 2009); Eddy v. Colonial Life Ins. Co. of Am.,
919 F.2d 747, 750 (D.C. Cir. 1990). In this sense, they
support our finding that the Plan acted reasonably. For
example, while the Nelson Court reached its result
under the rubric of the “clear and convincing evidence”
standard inapplicable here, it focused on the record.
Cases like Nelson thus only serve to reinforce the
obvious conclusion that appellee’s determination that
Lisa Lehn did not waive her right to the decedent’s bene-
fits was neither arbitrary nor capricious.
C. Breach of Fiduciary Duty
Appellant asserts that even if it is not entitled to receive
any payment of benefits from the Plan, it may still sue
them for breach of fiduciary duty in this § 502(a)(1)(B)
action (the Trust does not appeal the dismissal of its
plea for equitable remedies under §502(a)(3)). This is a
novel theory. We have previously differentiated be-
tween suits under ERISA § 502(a)(1)(B), which we have
characterized as essentially a contract remedy under
the terms of the plan, Herzberger v. Standard Ins. Co., 205
F.3d 327, 330 (7th Cir. 2000), from suits under ERISA
No. 09-2430 25
§ 510, actionable through ERISA § 502(a)(3). Section 510
prohibits interference with a person’s opportunity to
become eligible for plan benefits:
Section 510, unlike Section 502(a)(1)(B), is not con-
cerned with whether a defendant complied with the
contractual terms of an employee benefit plan.
Rather, the emphasis of a Section 510 action is to
prevent persons and entities from taking actions
which might cut off or interfere with a participant’s
ability to collect present or future benefits or which
punish a participant for exercising his or her rights
under an employee benefit plan. See, e.g., 29 U.S.C.
§ 1140; Felton v. Unisource Corp., 940 F.2d 503, 512
(9th Cir. 1991). The difference between enforcing the
terms of a plan and assuring that parties do not some-
how impinge on current or future rights under em-
ployee benefit plans may seem subtle at first glance,
but upon a close examination it becomes clear that
the distinction is great. In order to enforce the terms of
a plan under Section 502, the participant must first qualify
for the benefits provided in that plan. See 29 U.S.C. § 1132.
Rather than concerning itself with these qualifica-
tions, one of the actions which Section 510 makes
unlawful is the interference with a participant’s
ability to meet these qualifications in the first instance.
Tolle v. Carroll Touch, Inc., 977 F.2d 1129, 1133-34 (7th Cir.
1992) (emphasis added).
The live portion of appellant’s suit alleges only a viola-
tion of § 502(a)(1)(B). This statutory provision is designed
to defend a person’s contractual entitlements to benefits.
26 No. 09-2430
For the reasons stated in Part B, the Trustee has no
rights under the Plan—nothing that belongs to appellant
falls under the protective umbrella of § 502(a)(1)(B). Such
a conclusion restricts the remedy for any remaining
fiduciary violation to equitable relief. Varity Corp. v. Howe,
516 U.S. 489, 508-15 (1996); see also Strom v. Goldman, Sachs
& Co., 202 F.3d 138 (2d Cir. 1999) (holding that where
a plaintiff was not entitled to receive any benefits
under the terms of the plan, a breach of fiduciary duty
by the plan administrator in violation of § 404(a)(1)(B)
did not establish alternate grounds for recovery under
§ 502(a)(1)(B)). With its § 502(a)(3) cause of action gone,
appellant is no longer eligible to seek equitable relief. The
Trust’s sole remaining claim under § 502(a)(1)(B) could
only “recover benefits due . . . under the terms of the plan.”
Because any monetary award in the suit would amount
to compensatory damages for breach of contract and the
Plan’s conduct makes such an award inappropriate, we
affirm the district court’s judgment without examining
whether the Plan’s conduct complied with ERISA require-
ments for a fiduciary.6 See also Sharp Elecs. Corp. v. Metro.
6
Though we do not reach the merits of the fiduciary claim in
this appeal, we note that the Plan’s conduct would likely pass
muster under any applicable standard. By invoking the
§ 502(a)(3) remedy, appellant seeks to recharacterize its argu-
ment that the Plan acted arbitrarily and capriciously when
it identified Lisa Lehn as the sole valid beneficiary of
decedent’s entitlement into a claim that the Plan did not act
with the “care, skill, prudence, and diligence” required by 29
(continued...)
No. 09-2430 27
Life Ins. Co., 578 F.3d 505, 513 (7th Cir. 2009) (reiterating
the rule that a claim for a breach of fiduciary duty
under ERISA following a permissible adverse determina-
tion must seek to recover losses to the Plan, not a con-
tractual counterparty).
6
(...continued)
U.S.C. § 1104 in reaching this same decision. Both allegations
arise from the same record, which, as we explained, contains
no sign of faulty decisionmaking by the administrator. Since the
Trustee has almost no evidence to back her position, even a
rather drastic change in legal standard applicable to the case
(from that of reasonableness to the “ ‘rigid level of conduct’
expected of fiduciaries,” Varity, 516 U.S. at 514-16 (citations
omitted)) would yield the same result—no matter how strong
a magnifying glass a court is willing to use, a zero will remain
a zero. Moreover, ERISA § 404 by its terms imposes a
fiduciary duty on the Plan only with respect to Plan participants
and beneficiaries, not third parties whose financial interests
may be indirectly implicated by a compensation decision.
29 U.S.C. §1104(a)(1) (“a fiduciary shall discharge his duties
with respect to a plan solely in the interest of the participants
and beneficiaries and—. . . for the exclusive purpose of: . . .
providing benefits to participants and their beneficiaries . . . .”).
Appellant is one such third party and could not find redress
even if she could squeeze her claim into the § 502(a)(1)(B) box.
See also Johnson v. Georgia-Pacific Corp., 19 F.3d 1184, 1188 (7th
Cir. 1994) (stating that the ERISA definition of a “fiduciary” in
29 U.S.C. § 1002(21)(A) “does not make a person who is a
fiduciary for one purpose a fiduciary for every purpose. A
person ‘is a fiduciary to the extent that’ he performs one of
the described duties; people may be fiduciaries when they
do certain things but be entitled to act in their own interests
when they do others.”).
28 No. 09-2430
We recognize the strong need for uniformity in federal
common law generally and ERISA interpretation in
particular, see Metro. Life Ins. Co. v. Johnson, 297 F.3d 558,
567 (7th Cir. 2002); Phoenix Mut. Life Ins. Co. v. Adams, 30
F.3d 554, 564 (4th Cir. 1994), and our conclusion here
comports with the bulk of jurisprudence on the issue, as
well as Supreme Court decisions like Varity that view
the remedies available under 29 U.S.C. § 1132(a) as dis-
crete, non-redundant, non-fungible causes of action. The
Second Circuit has permitted a “hybrid” suit for a proce-
dural violation of ERISA that led to an underpayment
of benefits and that the plaintiff characterized as a breach
of fiduciary duty to go forward under § 502(a)(1)(B),
Wilkins v. Mason Tenders Dist. Council Pension Fund, 445
F.3d 572, 582 (2d Cir. 2006), but the posture of that case
stands in stark contrast to the one before us today and
poses questions that we reserve for a later date. The
plaintiff in Wilkins was a union construction worker who
claimed that the plan owed him a larger benefit than the
one the plan had calculated. Wilkins premised this claim
on the theory that over the span of 40 years, his various
employers underreported his wages to avoid making
the full contribution required for his contractually guaran-
teed union retirement benefits. Wilkins faulted the de-
fendant pension fund too, for failing to adequately audit
the employers, as well as for not disclosing an internal,
written fund policy that required members to provide
pay stubs showing a union wage as evidence that they
were entitled to benefits for work not reported by em-
ployers (“the Pay Stub Policy”).
No. 09-2430 29
Only the second allegation is potentially relevant here,
because in form, it asserted a procedural violation of
ERISA disclosure requirements for conditions that a
participant must satisfy to be eligible for benefits. See 29
U.S.C. § 1022(b); 29 C.F.R. § 2520.102-3(l) (2009); 29 C.F.R.
§ 2520.102-3(j)(1) (2009). The district court characterized
this theory as a one articulating a breach of fiduciary
duty colorable under § 502(a)(3) and thus ineligible for
anything other than equitable relief. The Second Circuit
disagreed, contrasting Strom v. Goldman, Sachs & Co. in
the process:
The district court’s starting premise is correct: suits
may be brought under § 502(a)(3) only for “those
categories of relief that were typically available in
equity,” Mertens v. Hewitt Assocs., 508 U.S. 248, 256
(1993), and “classic compensatory . . . damages are
never included within” these categories, Gerosa, 329
F.3d at 321. See also Great-West, 534 U.S. at 210-11. We
believe, however, that Wilkins’s claim may be under-
stood not as a claim for equitable relief under
§ 502(a)(3), but as a claim to recover plan benefits
under § 502(a)(1)(B). Accordingly, the limitations
on the forms of relief available under § 502(a)(3) do not
apply to his claim.
...
Wilkins, on the other hand, is, by hypothesis, entitled
under the plan to the benefit he seeks: a pension
calculated on the basis of all his covered employ-
ment. (What level of benefits he is due—if any—is,
of course, an analytically distinct (and fact-inten-
30 No. 09-2430
sive) question that depends on the scale of the
underreporting.) That he has also characterized the
Fund’s alleged failure to produce a valid SPD as a
breach of its duties as a fiduciary in no way fore-
closes his access to relief under § 502(a)(1)(B). And,
as decisions of this court have made clear, “if a sum-
mary plan ‘is inadequate to inform an employee of
his rights under the plan, ERISA empowers plan
participants and beneficiaries to bring civil actions
against plan fiduciaries for any damages that result
from the failure to disclose’ under 29 U.S.C.
§ 1132(a)(1)(B).” Layaou, 238 F.3d at 212; see also
Burke, 336 F.3d at 114 (holding that, where the plain-
tiff was likely prejudiced by a defective SPD, she
was entitled to recover under § 502(a)(1)(B) the
benefits she was due under the plan as construed in
light of the SPD).
445 F.3d at 582-83 (some citations omitted). To the extent
that the above language suggests that ERISA permits
some co-mingling between theories of recovery, it also
distinguishes environments where such fraternizing may
occur from the present appeal. Crucially, under the logic
of Wilkins and Strom (where the Second Circuit denied
recovery for a potential breach of fiduciary duty under
the auspices of § 502(a)(1)(B) contractual remedy to a
plaintiff lacking a contractual connection to the plan), a
procedural misstep by a plan administrator can only lead
to money damages when the plaintiff victim of said
misstep has an indisputable entitlement to some benefits.
Here, the Trust has no right to receive anything from
the appellees. Any injury appellant suffered from a poten-
No. 09-2430 31
tial shortfall in care by a plan with which it maintained
no legal relationship is not cognizable in a suit under
§ 502(a)(1)(B). See Wilkins, 445 F.3d at 585; cf. Burke v.
Kodak Ret. Income Plan, 336 F.3d 103, 113 (2d Cir. 2003)
(“Cognizant of ERISA’s distribution of benefits, we
require, for a showing of prejudice, that a plan participant
or beneficiary was likely to have been harmed as a result
of a deficient SPD.”).
Appellants also make the argument that the district
court erred in granting summary judgment in favor of
defendants-appellees on the fiduciary duty issue be-
cause the Plan “did not address plaintiff’s claim for
the breach of the fiduciary duty of care in claims pro-
cessing.” In doing so, the Trust argues, the Plan failed to
meet its burden of identifying grounds on which sum-
mary judgment may be granted. As appellees point
out, however, the Amended Complaint distinguished
between a claim of a breach of fiduciary duty under
ERISA § 502(a)(3)(B) and a claim for benefits under
§ 502(a)(1)(B). The latter survived a motion to dismiss;
the former did not. The Trust acknowledges that “the
breach of fiduciary duty claim under § 502(a)(3) of
ERISA was eliminated by payment of the benefits to the
surviving spouse.” As demonstrated above, § 502(a)(1)(B)
does not amount to parallel grounds for relief on
fiduciary duty grounds where a person is not already
entitled to benefits. There were no procedural errors in
the district court’s grant of summary judgment.
32 No. 09-2430
III. Conclusion
For the foregoing reasons, we A FFIRM the judgment of
the district court.
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