Carmen Mays-Williams v. Asa Williams, Jr. , 777 F.3d 1035 ( 2015 )


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  •                  FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    LAWRENCE M. BECKER, as fiduciary          No. 13-35069
    of the Xerox Corporation Savings
    Plan and Xerox Corporation                   D.C. No.
    Retirement Income Guarantee Plan,         3:11-cv-05830-
    Plaintiff,          BHS
    CARMEN STEPHANIE MAYS-
    WILLIAMS,                                   OPINION
    Defendant-Appellee,
    v.
    ASA WILLIAMS, JR., as personal
    representative of the Estate of Asa
    Willie Williams,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the Western District of Washington
    Benjamin H. Settle, District Judge, Presiding
    Argued and Submitted
    May 15, 2014—Seattle, Washington
    Filed January 28, 2015
    Before: Diarmuid F. O’Scannlain, Marsha S. Berzon,
    and Richard C. Tallman, Circuit Judges.
    Opinion by Judge O’Scannlain
    2                MAYS-WILLIAMS V. WILLIAMS
    SUMMARY*
    Employee Retirement Income Security Act
    The panel reversed the district court’s summary judgment
    in an ERISA interpleader action seeking a determination as
    to the proper beneficiary of proceeds under two employee
    benefit plans.
    The plan participant formally designated his wife as his
    beneficiary. After their divorce, he designated his son as
    beneficiary over the telephone but did not sign and return
    beneficiary designation forms.
    The panel held that the beneficiary designation forms
    were not “plan documents” governing the plan
    administrator’s award of benefits under 29 U.S.C.
    § 1104(a)(1)(D). The panel concluded that there was a
    triable issue as to whether, under state law, the plan
    participant strictly or substantially complied with the
    governing plan documents’ requirements for changing his
    beneficiary designation. The panel remanded the case for
    further proceedings.
    *
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    MAYS-WILLIAMS V. WILLIAMS                    3
    COUNSEL
    Steven P. Krafchick, Krafchick Law Firm PLLC, Seattle,
    Wash., argued the cause and filed the briefs for the
    Defendant-Appellant. With him on the briefs was Lisa V.
    Benedetti, Krafchick Law Firm PLLC, Seattle, Wash.
    Marcia P. Ellsworth, Peterson Russell Kelly, PLLC, Bellevue,
    Wash., argued the cause and filed a brief for the Defendant-
    Appellee. With her on the brief was Merryn B. DeBenedetti,
    Peterson Russell Kelly, PLLC, Bellevue, Wash.
    OPINION
    O’SCANNLAIN, Circuit Judge:
    We must decide whether a decedent succeeded in his
    attempt to ensure that his son—and not his ex-wife—received
    the benefits to which his employer’s retirement plans entitled
    him.
    I
    A
    When he retired in October 2004, Asa Williams, Sr.,
    (“Asa, Senior”) had worked for the Xerox Corporation for
    over thirty years. He participated in various benefit programs
    that Xerox maintained for its employees, including the Xerox
    Retirement Income Guarantee Plan (the “RIGP”) and the
    Xerox Savings Plan (the “Savings Plan,” and, together with
    the RIGP, collectively, the “Xerox Plans”), both of which are
    4              MAYS-WILLIAMS V. WILLIAMS
    subject to the Employee Retirement Income Security Act of
    1974 (“ERISA”), 29 U.S.C. § 1001 et seq.
    Asa, Senior, married Carmen Mays-Williams (“Carmen”)
    in January 1993. In 2002, he formally designated Carmen as
    his beneficiary under the Xerox Plans. Following his divorce
    from Carmen in 2006, he attempted to change his designated
    beneficiary under the Xerox Plans from his now ex-wife
    Carmen to his son from an earlier marriage, Asa Williams,
    Jr., (“Asa, Junior”). Specifically, in July 2007, Asa, Senior,
    “telephonically undesignated” Carmen as his beneficiary
    under the RIGP, and indicated that he wanted his son as
    beneficiary instead. Asa, Senior, gave similar telephonic
    instructions with respect to the RIGP in February 2008 and
    with respect to both Xerox Plans in January 2011. In each
    instance, following the telephone conversation with Xerox,
    Asa, Senior, received, but did not sign and return, beneficiary
    designation forms requesting that he confirm his selection of
    his son as beneficiary.
    On May 16, 2011, Asa, Senior, died.
    B
    A month later, Carmen wrote to Xerox claiming to be her
    ex-husband’s beneficiary under the Xerox Plans. Asa, Junior,
    likewise asserted a right to the plan proceeds. Rather than
    resolve the competing claims, the fiduciary of the Xerox
    Plans interpleaded the two parties in federal district court
    seeking its determination as to the proper beneficiary.
    Carmen moved for summary judgment, asserting that because
    Asa, Senior, failed to fill out and to return the beneficiary
    designation forms, he did not properly designate Asa, Junior,
    as beneficiary in her place.
    MAYS-WILLIAMS V. WILLIAMS                      5
    The district court granted Carmen’s motion for summary
    judgment, and declined, on the subsequent motion of Asa,
    Junior, to reconsider its judgment. Asa, Junior, filed a timely
    notice of appeal.
    C
    The Xerox Retirement Income Guarantee Plan Agreement
    (the “RIGP Agreement”) provides the terms and procedures
    under which Xerox extends retirement benefits to qualified
    employees, including the procedure for designating a
    beneficiary. By its terms, unmarried participants “shall
    designate” a beneficiary, and “may change [the] designation
    of beneficiary from time to time.” A married participant, in
    contrast, before “designat[ing] one other than his Spouse as
    beneficiary,” must first obtain “the requisite spousal consent
    complying in every respect with regulations promulgated by
    the Secretary of the Treasury.” The Agreement also bestows
    upon the plan administrator the discretion to “construe and
    interpret the provisions of the Plan, determine all questions of
    fact, and make rules and regulations under the Plan to the
    extent deemed advisable or helpful.”
    The Xerox Retirement Income Guarantee Plan Summary
    Plan Description (the “RIGP SPD,” or “SPD”) similarly notes
    that, while unmarried participants “can name anyone [they]
    want to be the beneficiary of any death benefit that may
    become payable,” ERISA restricts married participants from
    freely designating beneficiaries. 29 U.S.C. § 1055(c)(2).
    Specifically, the SPD explains that if a married participant
    age 35 or older wishes to designate a beneficiary other than
    his wife, he must “submit [his] spouse’s written and notarized
    consent to do so on forms available . . . .” The SPD does not
    outline any further requirements for designating a
    6              MAYS-WILLIAMS V. WILLIAMS
    beneficiary. Rather, it explains that a participant “may visit
    the Your Benefits Resources web site . . . or call the Xerox
    Benefits Center . . . to complete or change [his] beneficiary
    designation at any time.” Elsewhere, the SPD explains that,
    upon the death of an unmarried participant, “a valid
    beneficiary designation must be on file with the Xerox
    Benefits Center prior to . . . death,” or Xerox will disburse
    benefits to the participant’s estate.
    The Xerox Savings Plan Agreement (together with the
    RIGP Agreement, collectively, the “Plan Agreements”) was
    not in the record before the district court at the time of
    Carmen’s motion for summary judgment. Rather, Carmen
    attached five pages of “excerpts” from the Agreement as an
    exhibit to her response to a subsequent motion for
    reconsideration. These excerpts—which do not include a
    signature page, a date of adoption, or any authentication
    besides the affidavit of Carmen’s attorney—outline a similar
    procedure for beneficiary designations to the one described in
    the RIGP Agreement. They also delegate to the plan
    administrator the authority “to prescribe such schedules or
    forms which he deems necessary or helpful to carry out the
    purposes of the Plan . . . .”
    The Xerox Savings Plan Summary Plan Description (the
    “Savings Plan SPD,” and, together with the RIGP SPD,
    collectively, the “SPDs”) contains similar language to the
    RIGP SPD regarding beneficiary designations, except that the
    Savings Plan SPD omits any reference to any required
    “form,” even when describing the restrictions on a married
    participant’s freedom to designate beneficiaries.
    MAYS-WILLIAMS V. WILLIAMS                                  7
    II
    An ERISA fiduciary must distribute benefits “in
    accordance with the documents and instruments governing
    the plan.” 29 U.S.C. § 1104(a)(1)(D). In granting summary
    judgment in favor of Carmen, the district court determined
    that the beneficiary designation forms themselves constituted
    “plan documents” which Asa, Senior, needed to sign and to
    return in order to change his beneficiary designation. Asa,
    Junior, disputes this determination, and argues that the
    beneficiary forms do not constitute “plan documents.”
    A
    In Kennedy v. Plan Administrator for DuPont Savings &
    Investment Plan, 
    555 U.S. 285
    (2009), the Supreme Court
    declined to decide whether the category of “documents and
    instruments governing the plan” described in § 1104(a)(1)(D)
    included beneficiary designation forms such as those at issue
    in this case. 
    Id. at 304.
    Nor have we yet addressed the
    question.1 Thus, whether such beneficiary forms constitute
    1
    Only one court of appeals has confronted the issue. The Third Circuit,
    in a pre-Kennedy case, suggested that potentially all “documents on file
    with the Plan,” including beneficiary designation forms, fit within the
    statutory definition. See McGowan v. NJR Serv. Corp., 
    423 F.3d 241
    ,
    245–46 (3d Cir. 2005) (Van Antwerpen, J.), abrogated on other grounds
    by Kennedy, 
    555 U.S. 285
    . But see 
    id. at 258
    n.17 (Fuentes, J., dissenting)
    (“[Although] Judge Van Antwerpen’s opinion reads this provision as
    allowing all documents filed with the Plan to govern its administration,
    including forms filed to designate beneficiaries[,] . . . I note in passing that
    the governing documents could reasonably be limited to those that set
    forth the terms of the plan.”).
    But McGowan provides little guidance for this case. In McGowan,
    the claimant sought to require the plan administrator to abide by the terms
    8                 MAYS-WILLIAMS V. WILLIAMS
    “plan documents” presents this court with a question of first
    impression.
    We draw guidance from our previous interpretation of a
    similar ERISA provision, 29 U.S.C. § 1024(b)(4). See
    Hughes Salaried Retirees Action Comm. v. Adm’r of the
    Hughes Non-Bargaining Ret. Plan, 
    72 F.3d 686
    (9th Cir.
    1995) (en banc). Under § 1024(b)(4), plan administrators are
    required, upon the request of a participant or beneficiary, to
    provide the requesting party with a copy of various plan
    documents, including SPDs, annual reports, terminal reports,
    bargaining agreements, trust agreements, contracts, and
    “other instruments under which the plan is established or
    operated.” 29 U.S.C. § 1024(b)(4). In Hughes Salaried
    Retirees Action Committee v. Administrator of the Hughes
    Non-Bargaining Retirement Plan, we interpreted that
    category to include only “those documents that provide
    individual participants with information about the plan and
    benefits.” 
    Id. at 690.
    Citing legislative history, the en banc
    panel explained that § 1024(b)(4) includes only those
    documents that elucidate “exactly where [the participant]
    stands with respect to the plan—what benefits he may be
    entitled to, what circumstances may preclude him from
    obtaining benefits, what procedures he must follow to obtain
    benefits . . . .” 
    Id. (quoting S.
    Rep. No. 93–127, at 27 (1974))
    of a marital settlement agreement instead of the beneficiary designation
    form. The lead opinion drew a contrast between those instruments duly
    filed with the plan, such as beneficiary designation forms, and extrinsic
    documents, such as “outside private agreements between beneficiaries and
    participants.” 
    Id. at 246
    (Van Antwerpen, J.). Asa, Junior, in the present
    case, does not argue that extrinsic documents prevail over those filed with
    the plan. Rather, he contends that the provisions of the Plan Agreements
    should control over any purportedly additional requirements imposed by
    the beneficiary designation forms.
    MAYS-WILLIAMS V. WILLIAMS                              9
    (internal quotation marks omitted). Notably, the en banc
    panel specifically rejected an interpretation of § 1024(b)(4) to
    include “all documents that are critical to the operation of the
    plan.” 
    Id. (internal quotation
    marks omitted). Rather, the en
    banc panel limited the “other instruments” category to those
    “similar in nature” to the documents specifically listed in
    § 1024(b)(4). 
    Id. at 691.2
    In Kennedy, the Supreme Court suggested that the “other
    instruments” category described in § 1024(b)(4) overlaps
    with the “documents and instruments governing the plan”
    category in § 
    1104(a)(1)(D). 555 U.S. at 304
    . Indeed, the
    category described in § 1104(a)(1)(D) may be even narrower
    than that described in § 1024(b)(4).3 Thus, only those that
    provide information as to “where [the participant] stands with
    respect to the plan,” such as an SPD or trust agreement might,
    could qualify as governing documents with which a plan
    administrator must comply in awarding benefits under
    § 1104(a)(1)(D). Because the beneficiary designation forms
    2
    Other circuits have similarly construed § 1024(b)(4) as encompassing
    only formal documents that govern the operation of the plan. See, e.g.,
    Mondry v. Am. Family Mut. Ins. Co., 
    557 F.3d 781
    , 797–98 (7th Cir.
    2009) (collecting cases from across the circuits consistent with the view
    that “instruments” in § 1024(b)(4) “reaches only formal legal documents
    governing a plan” (internal quotation marks omitted)); Faircloth v. Lundy
    Packing Co., 
    91 F.3d 648
    , 654 (4th Cir. 1996) (“The clear and
    unambiguous meaning of this statutory language encompasses only formal
    or legal documents under which a plan is set up or managed.”).
    3
    The Supreme Court has specifically excluded the statutorily mandated
    summary plan description, listed in § 1024(b)(4), as a source of the plan’s
    governing terms. See CIGNA Corp. v. Amara, 
    131 S. Ct. 1866
    , 1878
    (2011) (“[T]he summary documents, important as they are, provide
    communication with beneficiaries about the plan, but . . . their statements
    do not themselves constitute the terms.”).
    10               MAYS-WILLIAMS V. WILLIAMS
    in this case provide no such information—rather, they simply
    confirm the participant’s attempt to change his designated
    beneficiary—the forms are not “plan documents” governing
    the administrator’s award of plan benefits.
    B
    Nor do any of the actual plan documents incorporate the
    beneficiary designation forms so as to bring them into the
    § 1104(a)(1)(D) category of governing documents. The
    RIGP Agreement defines the “Plan” as the provisions “set
    forth [t]herein or in any amendment [t]hereto.” While the
    Agreement expressly contemplates the incorporation of
    certain other documents, such as trust agreements, to be
    “deemed to form a part of the Plan,” nowhere does the
    Agreement allude to beneficiary designation forms, and none
    of the schedules annexed to the Agreement contain even the
    vaguest reference to a beneficiary designation form.
    Moreover, while the RIGP SPD refers to the use of forms for
    married participants to change their beneficiary designations,
    nowhere does the RIGP SPD refer to the use of any form for
    unmarried participants. Finally, the Xerox representative,
    whose declaration Carmen attached to her motion for
    summary judgment, did not list among the “plan documents”
    those beneficiary designation forms that appear in the record.4
    In sum, nothing in the record indicates that the beneficiary
    designation forms themselves constituted, or were in any way
    4
    Even if the panel were to review the excerpts from the Savings Plan
    Agreement submitted by Carmen in response to Asa, Junior’s motion to
    reconsider, the excerpts do not allude to the mandatory use of specific
    forms, and therefore fail to demonstrate the incorporation of the
    beneficiary forms into the governing plan documents.
    MAYS-WILLIAMS V. WILLIAMS                           11
    incorporated into, governing plan documents. Therefore, the
    district court erred in determining that Asa, Senior, was
    required to abide by the language contained in the forms—but
    not in the governing plan documents—to change his
    beneficiary designation from Carmen to Asa, Junior.
    III
    Carmen counters that even if the beneficiary forms were
    not “plan documents,” Asa, Senior, still needed to comply
    with them because Xerox exercised its authority to require
    their use.
    Under Firestone Tire & Rubber Co. v. Bruch, 
    489 U.S. 101
    (1989), if a plan grants the administrator discretion to
    interpret it or to determine benefit eligibility, a court will
    uphold such interpretation or determination if reasonable. 
    Id. at 115.
    Here, the RIGP Agreement bestows upon Xerox the
    discretion to “construe and interpret the provisions of the
    Plan, determine all questions of fact, and make rules and
    regulations under the Plan to the extent deemed advisable or
    helpful.” Assuming without deciding that such language
    bestows discretion on the plan administrator, we must
    determine whether the administrator actually exercised such
    discretion by sending the beneficiary designation forms to
    Asa, Senior.5
    Carmen argues that the forms themselves are evidence of
    Xerox’s exercise of discretion to require Asa, Senior, to
    complete and to return the beneficiary designation forms in
    order to effect the change. The forms indicate that “to
    5
    We also assume that the Savings Plan Agreement would require similar
    judicial deference to administrative determinations thereunder.
    12             MAYS-WILLIAMS V. WILLIAMS
    finalize” and “to validate” the beneficiary designations, the
    participant must “[s]ign, date, and return” them. The forms
    also state that they “confirm[] your beneficiary designations
    that you made” and refer to the date of Asa, Senior’s phone
    call.
    Asa, Junior, on the other hand, contends that the record
    fails to establish that the plan administrators were vested with
    discretion to require their use. Notably, while the forms
    conspicuously display the Xerox logo and indicate the
    benefits plan to which they pertain, they also include the
    insignia and other information of Hewitt Associates LLC,
    which the Xerox Plans hired as an agent, but apparently did
    not nominate as a plan administrator or other fiduciary.
    Furthermore, nothing in the record indicates that the plan
    administrator required any other plan participants to sign and
    to return such beneficiary forms in order to change
    beneficiary designations.
    Moreover, rather than award benefits to Carmen due to
    Asa, Senior’s alleged failure to return the signed beneficiary
    forms, the plan administrator declined to award benefits to
    either party, and instead chose to file this present interpleader
    action. Thus, the plan administrator impliedly declined to
    exercise any discretion in determining whether Asa, Senior’s
    telephonic designation of Asa, Junior, as beneficiary was
    valid under the plan. See, e.g., Liberty Life Assurance Co. of
    Boston v. Kennedy, 
    358 F.3d 1295
    , 1299 (11th Cir. 2004)
    (finding that a plan administrator did not exercise discretion
    granted to it under the plan when the administrator filed an
    interpleader action to determine whether a beneficiary
    designation form filed in accordance with plan documents or
    a subsequently executed will governed benefit eligibility).
    MAYS-WILLIAMS V. WILLIAMS                      13
    Thus, as there has been no exercise of discretion to which
    we could defer, we review de novo whether Carmen or Asa,
    Junior, is entitled to plan benefits—a question answered by
    reference to the governing plan documents. See Thomas v.
    Or. Fruit Prods. Co., 
    228 F.3d 991
    , 993 (9th Cir. 2000); see
    also Liberty 
    Life, 358 F.3d at 1299
    (applying de novo review
    when the plan administrator declined to exercise its
    discretionary authority to interpret benefit eligibility).
    IV
    The inquiry thus is whether Asa, Senior, strictly or
    substantially complied with the governing plan documents.
    See BankAmerica Pension Plan v. McMath, 
    206 F.3d 821
    ,
    830 (9th Cir. 2000). Such an inquiry is one of state law, see
    
    id., and one
    that implicates Asa, Senior’s intentions, see, e.g.,
    Sun Life Assurance Co. of Canada v. Sutter, 
    95 P.2d 1014
    ,
    1016 (Wash. 1939) (“[I]n cases in which the insurer is not
    interested, the intent of the insured is entitled to great
    consideration.”); see also Krishna v. Colgate Palmolive Co.,
    
    7 F.3d 11
    , 16 (2d Cir. 1993) (“Summary judgment is
    notoriously inappropriate for determination of claims in
    which issues of intent, good faith and other subjective
    feelings play dominant roles.” (internal quotation marks
    omitted)).
    Nothing in the governing plan documents prevents
    unmarried participants from designating beneficiaries by
    telephone call. The RIGP Agreement provides that
    unmarried participants “may change [the] designation of
    beneficiary from time to time.”           In clarifying the
    requirements of the underlying Plan Agreements, both SPDs
    instruct unmarried participants to call the Xerox Benefits
    Center or to visit the Xerox website in order to change or to
    14             MAYS-WILLIAMS V. WILLIAMS
    complete a beneficiary designation. And while the plan
    documents require written designations for married
    participants, they decline to impose any sort of writing
    requirement on unmarried participants. Thus, the governing
    plan documents permit unmarried participants to change their
    beneficiary designations by telephone.
    In light of the evidence before us, including Xerox’s call
    log from January 10, 2011, reflecting that Asa, Senior, called
    Xerox to change his beneficiary designation from Carmen to
    Asa, Junior, a reasonable trier of fact could determine that
    Asa, Senior, intended to change his beneficiary to Asa,
    Junior, and that his phone calls to Xerox constituted
    substantial compliance with the governing plan documents’
    requirements for changing his beneficiary designation.
    Accordingly, we cannot sustain the grant of summary
    judgment in favor of Carmen.
    V
    We therefore REVERSE the judgment of the district
    court and REMAND the case for further proceedings
    consistent with this opinion.