PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED MCGILL CORPORATION,
Plaintiff-Appellant,

v.                                                                 No. 97-1046

SHARON STINNETT,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CA-96-1402-AW)

Argued: June 3, 1998

Decided: August 27, 1998

Before MURNAGHAN and ERVIN, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Vacated and remanded by published opinion. Senior Judge Phillips
wrote the opinion, in which Judge Murnaghan and Judge Ervin
joined.

_________________________________________________________________

COUNSEL

ARGUED: Matt R. Ballenger, Baltimore, Maryland, for Appellant.
Robyn B. Lupo, ERIC S. SLATKIN & ASSOCIATES, Burtonsville,
Maryland, for Appellee. ON BRIEF: Eric S. Slatkin, ERIC S. SLAT-
KIN & ASSOCIATES, Burtonsville, Maryland, for Appellee.

_________________________________________________________________
OPINION

PHILLIPS, Senior Circuit Judge:

This is an appeal by United McGill Corporation from a district
court judgment holding that an ERISA plan participant who recovers
from a third party is entitled to a pro rata reduction for attorney's fees
when reimbursing the plan for benefits paid. Although granting sum-
mary judgment for McGill on its claim for reimbursement, the district
court held that McGill, the employer and administrator of the welfare
benefit plan, must share in the costs of third-party recovery and,
therefore, reduced McGill's reimbursement from Sharon Stinnett, the
employee, by one-third. Because the express terms of the ERISA plan
provide otherwise, we vacate and remand with instructions.

I.

On May 9, 1993, Sharon Stinnett was involved in a motor vehicle
accident and suffered considerable injuries. At the time, Stinnett was
an employee of United McGill Corporation and participated in
McGill's welfare benefit plan ("the Plan"). Following the accident,
she incurred medical bills totaling $39,000 and received medical ben-
efit expenses from the Plan in the sum of $31,418.89. Stinnett then
brought suit against the driver who caused the accident and eventually
settled the claim for $100,000. Pursuant to a contingency fee arrange-
ment, Stinnett's attorney received one-third of the settlement pro-
ceeds.

McGill, as administrator of the Plan, sought to recover the full
amount of medical expenses paid to Stinnett and perfected a lien on
the settlement proceeds. The terms of the Plan provide:

          REFUND TO US FOR OVERPAYMENT OF BENEFITS

          If you or your dependent recover money for medical, hospi-
          tal, dental or vision expenses incurred due to an illness or
          injury for which a benefit has been paid under this plan, we
          will have the right to a refund from you or your dependent.
          The amount refunded to us will be the lesser of:

                     2
          1. the amount you or your dependent recover;

          2. the amount of benefits we have paid .

          RIGHT OF SUBROGATION

          If you or your covered dependent has a claim for damages
          or a right to recover damages from a third party or parties
          for any illness or injury for which benefits are payable under
          this plan, we are subrogated to such claim or right of recov-
          ery. Our right of subrogation will be to the extent of any
          benefits paid or payable under this plan, and shall include
          any compromise settlement. . . .

(J.A. at 69 (emphasis added).) Based on these provisions, McGill filed
a complaint for declaratory judgment and then moved for summary
judgment.

In both her answer to the complaint and response to the summary
judgment motion, Stinnett acknowledged McGill's right to reimburse-
ment for the medical expenses but insisted that McGill must reduce
the amount of the lien by one-third to account for the attorney's fees
expended in order to recover from the negligent driver. The district
court agreed and, although granting summary judgment in favor of
McGill, reduced McGill's award because it was "the fair, appropriate,
and equitable determination under the circumstances of this case."
(J.A. at 112.)

McGill now appeals that portion of the district court's decision
reducing its reimbursement of benefits paid by one-third to cover
Stinnett's attorney's fees.

II.

We review de novo the district court's ruling on summary judg-
ment and are therefore guided by the appropriate standard of review
of McGill's decision, as administrator of the Plan, not to apportion
Stinnett's attorney's fees. Bailey v. Blue Cross & Blue Shield of Va.,
67 F.3d 53, 56 (4th Cir. 1995).

                    3
Interpretive decisions by administrators of ERISA plans are gener-
ally subject to de novo review. Firestone Tire and Rubber Co. v.
Bruch, 489 U.S. 101, 115 (1989). If, however, the plan expressly
grants the plan administrator discretionary authority to construe the
provisions, the administrator's decision is reviewed for abuse of dis-
cretion. Id. (indicating that courts should defer when the administrator
is granted interpretive discretion). Under this deferential standard,
"the administrator or fiduciary's decision will not be disturbed if it is
reasonable, even if this court would have come to a different conclu-
sion independently." Ellis v. Metropolitan Life Ins. Co., 126 F.3d 228,
232 (4th Cir. 1997) (citations omitted). In certain circumstances, this
deference is "lessened to the degree necessary to neutralize any unto-
ward influence resulting from [ ] conflict[s] [arising from the adminis-
trator's financial interest in the outcome of the decision]." Bailey, 67
F.3d at 56 (citations omitted); Ellis, 126 F.3d at 233 ("The more
incentive for the administrator or fiduciary to benefit itself by a cer-
tain interpretation of benefit eligibility or other plan terms, the more
objectively reasonable the . . . decision must be and the more substan-
tial the evidence must be to support it.").

In this case, the Plan grants McGill discretionary authority to "con-
strue the terms of the Plan and resolve any disputes which may arise
with regard to the rights of any persons under the terms of the Plan."
(J.A. at 80.) Thus, McGill's interpretation of the Plan's reimburse-
ment provision is entitled to some deference. However, because
McGill serves as both employer and administrator and apparently
retains a financial interest in reducing payments under the Plan, its
decision is judicially reviewed under a less deferential abuse of dis-
cretion standard. Jenkins v. Montgomery Indus. Inc., 77 F.3d 740, 742
(4th Cir. 1996).

McGill argues that the Plan clearly, concisely, and unambiguously
requires Plan beneficiaries to refund the Plan from any third-party
recovery to the extent of any benefits paid. Here, Stinnett recovered
$100,000 and, after paying her negotiated attorney's fees, retained
approximately $67,000--more than enough to reimburse the Plan
$31,418.89 for medical benefits payments received from the Plan.
Accordingly, McGill contends that the district court erroneously dis-
regarded the plain language of the Plan and crafted a solution outside
the contractual arrangement between the parties.

                    4
In response, Stinnett maintains that the "obvious inequities" of
allowing McGill to benefit without contributing to the recovery
should control our decision. Even conceding that the language of the
Plan is clear, Stinnett reasons that but for her retention of an attorney
to pursue the claim, the Plan would not have recovered any of the
benefits paid. She argues that federal common law should not allow
McGill to profit from its inaction. If McGill had exercised its right of
subrogation to pursue the claim itself, McGill, and not Stinnett, would
have incurred attorney's fees for recovery of the medical expenses.
Therefore, according to Stinnett, McGill should not be permitted to
avoid these costs by simply shifting the burden of third-party recovery
to the Plan beneficiary.

The district court found Stinnett's position to be persuasive. Appar-
ently balancing the equities in favor of Stinnett and without discuss-
ing the content of either the reimbursement or subrogation provisions
in the Plan, the district court ordered that McGill share in the cost of
obtaining the settlement proceeds. Because this approach ignores
well-settled principles of ERISA law, we must reject it.

In enacting ERISA, Congress intended for the judiciary to develop
a body of federal common law to supplement the statute's express
provisions. Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 56 (1987).
This law-making authority is limited however to situations in which
it is "necessary to fill in interstitially or otherwise effectuate the
[ERISA] statutory pattern enacted in the large by Congress." Bollman
Hat Co. v. Root, 112 F.3d 113, 118 (3d Cir.), cert. denied, 118 S. Ct.
373 (1997) (quotation and citation omitted); see Jenkins, 77 F.3d at
743 (indicating that the federal common law of rights and obligations
under ERISA-regulated plans exists merely to fill in the statute's
gaps). Courts should only fashion federal common law when "neces-
sary to effectuate the purposes of ERISA." Singer v. Black & Decker
Corp., 964 F.2d 1449, 1452 (4th Cir. 1992) (citations omitted). In
reviewing ERISA-related disputes,

          [r]esort to federal common law generally is inappropriate
          when its application would conflict with the statutory provi-
          sions of ERISA, discourage employers from implementing
          plans governed by ERISA, or threaten to override the
          explicit terms of an established ERISA benefit plan. And,

                    5
          courts should remain circumspect to utilize federal common
          law to address issues that bear at most a tangential relation-
          ship to the purposes of ERISA.

Id. (citations omitted).

Although ERISA establishes a comprehensive regulatory scheme
for employee welfare benefit plans, it does not mandate any minimum
substantive content for such plans. See Shaw v. Delta Air Lines, Inc.,
463 U.S. 85, 91 (1983); Hamilton v. Air Jamaica, Ltd., 945 F.2d 74,
78 (3d Cir. 1991). Rather, one of the primary functions of ERISA is
to ensure the integrity of written, bargained-for benefit plans. Dugan
v. Hobbs, 99 F.3d 307, 309-10 (9th Cir. 1996); Van Orman v. Ameri-
can Ins. Co., 680 F.2d 301, 302 (3d Cir. 1982). To satisfy this objec-
tive, the plain language of an ERISA plan must be enforced in
accordance with "its literal and natural meaning." Health Cost Con-
trols v. Isbell, 139 F.3d 1070, 1072 (6th Cir. 1997).

Applying these principles, several of our sister circuits have
expressly declined to achieve the result reached here by the district
court through the application of federal common law at variance with
comparable reimbursement provisions in ERISA plans. In Ryan by
Capria-Ryan v. Federal Express Corp., 78 F.3d 123 (3d Cir. 1996),
the Third Circuit refused to reduce an administrator's reimbursement
award by prorating the covered participant's attorney's fees where the
ERISA plan expressly provided otherwise. In that case, the plan pro-
vided, in pertinent part:

          [T]he Plan shall have the right to recover, against any source
          which makes payments or to be reimbursed by the Covered
          Participant who receives such benefits, 100% of the amount
          of covered benefits paid. . . . If the 100% reimbursement
          provided above exceeds the amount recovered by the Cov-
          ered Participant, less legal and attorneys' fees incurred by
          the Covered Participant in obtaining such recovery .. ., the
          Covered Participant shall reimburse the Plan the entire
          amount of such Net Recovery.

Id. at 124. Because the covered participant's recovery, after expenses,
was sufficient to reimburse the Plan in full, the court interpreted the

                     6
contractual language unambiguously to require repayment of all
money received without a pro rata reduction for attorney's fees. The
court explained that federal common law may not"override a subro-
gation provision in an ERISA-regulated plan on the ground that the
plan would be unjustly enriched if it were to be enforced as written."
Id. Therefore, it held that the district court erroneously "established
a new federal common law right of recovery under ERISA; i.e. a right
under federal common law to deduct from a subrogation lien a pro
rata share of attorneys' fees incurred in pursuing a claim, despite
explicit contrary language in the Plan's subrogation clause." Id. at
125.

The language in Ryan is arguably distinguishable, because in the
operative provision, the plan did mention attorney's fees and their
treatment in relation to a situation where the award minus fees was
less than the benefits paid. Recently, however, the Third Circuit reit-
erated the Ryan approach in a case with language virtually identical
to McGill's Plan. Bollman, 112 F.3d at 116 (explaining that the plan
provided for reimbursement "to the extent of[any] payment" by the
plan). In that case, the court further declined to incorporate general
common law principles of subrogation into ERISA law because the
employee had not established that full reimbursement conflicted with
ERISA's policies or that adoption of a pro rata rule was necessary to
effectuate such policies. Id. at 118 (citation omitted).

The Sixth and Eighth Circuits have arrived at similar conclusions.
In reviewing a reimbursement provision similar to that in Ryan, the
Sixth Circuit denied pro rata distribution because"federal courts may
not apply common law theories to alter the express terms of written
benefit plans." Health Cost Controls v. Isbell, 139 F.3d 1070, 1072
(6th Cir. 1997) (citations omitted). The Eighth Circuit has also
expressed agreement with the Ryan holding but created a default rule
if the language of the benefits plan is inconclusive. Waller v. Hormel
Foods Corp., 120 F.3d 138, 141 (8th Cir. 1997). In that case, the sub-
rogation clause merely stated that the company would be subrogated
to all rights of recovery but did not delineate any specific amount and
lacked any language like that found in the McGill Plan. Id. Because
of this "silence," the court concluded as a matter of federal common
law that the employee was entitled to a pro rata offset of the value of
the legal services to the employer. Id.; see also McIntosh v. Pacific

                    7
Holding Co., 120 F.3d 911 (8th Cir. 1997) (same). We find these
decisions persuasive.

Notwithstanding the above authority, Stinnett maintains that it
would be unconscionable to force a Plan beneficiary to reimburse the
Plan for full benefits without deducting a pro rata share of the costs
required to obtain the reimbursement funds. If, as in Waller, the Plan
was silent as to the amount of reimbursement, Stinnett's argument
would be more compelling. Under the McGill Plan, however, Stinnett
cannot escape the unambiguous language that obligates her to repay
the benefits paid in full without mention of a pro rata deduction for
her expenses. See Ryan, 78 F.3d at 127 ("Enrichment is not `unjust'
where it is allowed by the express terms of the . . . plan.") (quoting
Cummings by Techmeier v. Briggs & Stratton Retirement Plan, 797
F.2d 383, 390 (7th Cir. 1986)).

Where, as here, the language of the Plan does not qualify the right
to reimbursement by reference to the costs associated with recovery,
we are bound to enforce the contractual provisions as drafted. Apply-
ing federal common law to override the Plan's reimbursement provi-
sion would contravene, rather than effectuate, the underlying purposes
of ERISA. See Coleman v. Nationwide Life Ins. Co., 969 F.2d 54, 58
(4th Cir. 1992) ("Use of estoppel principles to effect a modification
of a written employee benefit plan would conflict with ERISA's
emphatic preference for written agreements.") (quotation and citation
omitted). "The interpretive tool of a growing body of federal common
law applicable to ERISA actions is not a license to rewrite the Plan
to the Court's tastes." Health and Welfare Plan for Employees of
REM, Inc. v. Ridler, 942 F. Supp. 431, 435 (D. Minn. 1996), aff'd,
124 F.3d 207, 1997 WL 559745 (8th Cir. Sept. 10, 1997) (unpub-
lished). Irrespective of how federal common law would divide the set-
tlement proceeds absent contractual guidance, McGill is entitled to
full recovery based on the plain language of the Plan.*
_________________________________________________________________

*We leave for another day how to treat situations where the beneficia-
ries' recovery from the third party after deducting attorney's fees is actu-
ally less than the plan's reimbursement claim, thus ostensibly requiring
the beneficiary to pay out of her own pocket to meet the plan's claim.
See Bollman, 112 F.3d at 117 (refusing to address this hypothetical sce-

                     8
We therefore vacate the judgment of the district court and remand
with instructions to enter judgment for McGill for the full amount of
reimbursement claimed.

SO ORDERED
_________________________________________________________________
nario because the third party settlement in that case fully financed both
the attorney's fees and the plan's claim). We do note that future disputes
over such an anomalous result can easily be avoided by more careful
drafting of subrogation and reimbursement provisions. See Health Cost
Controls, 139 F.3d at 1071 (indicating that plan specified that "in no
event will the amount of reimbursement . . . exceed . . . [t]he amount
actually recovered from that part of judgment or settlement in excess of
the amount necessary to fully reimburse the Employee. . . for out-of-
pocket expenses incurred, including attorney fees"); Ryan, 78 F.3d at 125
(reciting that subrogation provision provided that"if the payment you
receive from the third party, less your attorneys' fees and other legal
expenses, is not enough to reimburse benefit payments at 100%, you
must reimburse the plan 100% of what is left after paying your attorneys'
fees and other legal expenses").

                    9
