    Case: 16-41032   Document: 00514011592     Page: 1   Date Filed: 05/30/2017




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                No. 16-41032                            FILED
                                                                    May 30, 2017
                                                                   Lyle W. Cayce
                                                                        Clerk

DONNA RHEA,

                                          Plaintiff–Appellant,

versus

ALAN RITCHEY, INCORPORATED WELFARE BENEFIT PLAN;
ALAN RITCHEY, INCORPORATED,

                                          Defendants–Appellees.




                Appeal from the United States District Court
                     for the Eastern District of Texas




Before SMITH, PRADO, and GRAVES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

      Donna Rhea was the beneficiary of an employee benefit plan organized
under the Employee Retirement Income Security Act of 1974, as amended
(“ERISA”), 29 U.S.C. § 1001 et seq. Rhea suffered injuries from medical mal-
practice. The plan covered some of her medical expenses. After she settled the
malpractice claim, the plan sought reimbursement.
    Case: 16-41032    Document: 00514011592     Page: 2   Date Filed: 05/30/2017



                                 No. 16-41032
      The plan used a single document as both its summary plan description
and its written instrument. That document had a reimbursement provision.
Rhea refused to reimburse the plan, claiming that it did not have an enforce-
able written instrument. She sought a declaratory judgment and appeals an
adverse summary judgment and attorneys’ fees. Finding no error, we affirm.

                                       I.
      Alan Ritchey, Inc. (“Alan Ritchey”), is the sponsor and administrator of
an employee benefit program called the “Alan Ritchey, Inc. Welfare Benefit
Plan” (“the Plan”), which purports to comply with ERISA. Rhea, the wife of an
Alan Ritchey employee, was a beneficiary of the Plan. In November 2011, Rhea
underwent surgery and alleged injury from malpractice. The Plan covered
$71,644.77 of her medical expenses. After she settled the malpractice claim
for more than that amount, the Plan sought reimbursement.

      As a beneficiary, Rhea received a document entitled “Summary Plan
Description UnitedHealthcare Choice Plus Silver Plan for Alan Ritchey, Inc.”
The summary plan description (“SPD”) contains reimbursement and subroga-
tion language. It states that “if a third party causes a Sickness or Injury for
which you receive a settlement, judgment, or other recovery, you must use
those proceeds to fully return to the Plan 100% of any Benefits you received for
that Sickness or Injury.” The SPD adds, “If the Plan incurs attorneys’ fees and
costs in order to collect third party settlement funds held by you or your rep-
resentative, the Plan has the right to recover those fees and costs from you.”

      The SPD alludes to the existence of a separate “official Plan Document”
and provides that “[i]n the event of any discrepancy between this Summary
Plan Description and the official Plan Document, the Plan Document shall gov-
ern.” But when the Plan paid Rhea’s medical expenses, the SPD was the only


                                       2
     Case: 16-41032          Document: 00514011592         Page: 3   Date Filed: 05/30/2017



                                         No. 16-41032
document describing a beneficiary’s rights and obligations under the Plan. 1
When Rhea’s attorneys asked to see the “official Plan Document,” defendants
produced an affidavit signed by Charla Moss, Alan Ritchey’s benefits adminis-
trator, stating that the SPD “is the Plan document that has been accepted,
ratified, and maintained by the Plan Sponsor, that contains all of the ERISA-
required plan provisions, and operates as the Plan’s official plan document.”

         Rhea has refused to reimburse the Plan for the $71,644.77 it spent on
her medical treatment. She claims that Alan Ritchey did not have an ERISA-
compliant written instrument in place when the Plan paid her medical ex-
penses. As a result, she says, the Plan does not have a right to be reimbursed.
Rhea also accuses Alan Ritchey of making “knowing misrepresentations” about
the Plan’s compliance with ERISA.                Defendants claim that the Plan was
ERISA-compliant at all relevant times and that it established a right to be
reimbursed for Rhea’s medical expenses.

         In September 2013, Rhea sued Alan Ritchey and the Plan for a declara-
tory judgment that she is not required to reimburse the Plan. Defendants filed
a counterclaim requesting equitable relief and damages under ERISA. Both
sides moved for summary judgment.                    The magistrate judge (“MJ”) recom-
mended granting summary judgment and $31,415.50 in attorneys’ fees and
costs to defendants. The district court adopted those recommendations and
entered final judgment against Rhea, who appeals.

                                               II.
         ERISA requires plan administrators to provide SPDs to beneficiaries.
29 U.S.C. § 1024(b)(1). An SPD must “reasonably apprise [plan] participants



         1   Alan Ritchey later produced a document called the “Alan Ritchey Employee Benefit
Plan.”
                                                3
     Case: 16-41032        Document: 00514011592          Page: 4     Date Filed: 05/30/2017



                                        No. 16-41032
and beneficiaries of their rights and obligations under the plan” and must be
“written in a manner calculated to be understood by the average plan partici-
pant.” Id. § 1022(a). ERISA also mandates that plans “be established and
maintained pursuant to a written instrument.” Id. § 1102(a)(1). A plan’s writ-
ten instrument sets forth its terms and must do the following:
   (1) provide a procedure for establishing and carrying out a funding
       policy and method consistent with the objectives of the plan and
       the requirements of this subchapter,
   (2) describe any procedure under the plan for the allocation of respon-
       sibilities for the operation and administration of the plan (includ-
       ing any procedure described in section 1105(c)(1) of this title),
   (3) provide a procedure for amending such plan, and for identifying
       the persons who have authority to amend the plan, and
   (4) specify the basis on which payments are made to and from the
       plan.
Id. § 1102(b). Courts often refer to written instruments as “plan documents.”

                                               A.
       When the Plan paid Rhea’s medical expenses, its SPD was functioning
as both an SPD and a written instrument. That is nothing peculiar: Plan
sponsors commonly use a single document to satisfy both requirements, 2 and
courts have blessed the practice. 3 For example, we have treated an SPD as a


       2   See Lee T. Polk, Summary Plan Descriptions, 2 ERISA PRAC. & LITIG. § 12:38.
       3 See, e.g., Bd. of Trs. of Nat’l Elevator Indus. Health Benefit Plan v. Montanile,
593 F. App’x 903, 911 (11th Cir. 2014) (“We hold that the NEI Summary Plan Description
constitutes a written instrument that sets out enforceable ‘terms of the plan.’”), rev’d on other
grounds, 136 S. Ct. 651 (2016); Eugene S. v. Horizon Blue Cross Blue Shield of N.J., 663 F.3d
1124, 1131 (10th Cir. 2011) (“[T]he SPD does not conflict with the Plan or present terms
unsupported by the Plan; rather, it is the Plan.”); Wise v. Plan Adm’r, IBM Benefits Plan for
Retired Emps., No. 3:13CV1591 JBA, 2014 WL 3849975, at *4 (D. Conn. Aug. 5, 2014) (ex-
plaining that when there is no separate written instrument, “the SPD can legally serve as
the formal governing plan document”); Henderson v. Harford Life & Accident Ins.,
No. 2:11CV187DAK, 2012 WL 2419961, at *5 (D. Utah June 26, 2012) (“[T]he terms of the
SPD govern because there are no other ma[s]ter plan documents.”); Campbell v. Chevron
Phillips Chem. Co., 587 F. Supp. 2d 773, 782 (E.D. Tex. 2006) (“[O]ne document can serve as
                                               4
     Case: 16-41032          Document: 00514011592        Page: 5    Date Filed: 05/30/2017



                                         No. 16-41032
plan’s written instrument because there was “no alternative plan document in
the record.” 4

         Rhea claims that CIGNA Corp. v. Amara, 563 U.S. 421, 437–38 (2011),
requires a plan’s SPD and written instrument to be separate documents. But
courts have consistently rejected that reading of Amara. 5 To the contrary,
where a plan has an SPD but no separate written instrument, the SPD can



both the ‘summary plan description’ required under 29 U.S.C. § 1022(b) and the ‘written in-
strument’ required under 29 U.S.C. § 1102(a)(1).” (quoting Hamilton v. Air Jamaica, Ltd.,
750 F. Supp. 1259, 1265 (E.D. Pa. 1990)),rev’d on other grounds, 945 F.2d 74 (3d Cir. 1991)).
         4   Dudley v. Sedgwick Claims Mgmt. Servs. Inc., 495 F. App’x 470, 471 n.1 (5th Cir.
2012).
         See, e.g., Bd. of Trs. v. Moore, 800 F.3d 214, 220 (6th Cir. 2015) (“Nothing in Amara
         5

prevents a document from functioning both as the ERISA plan and as an SPD . . . .”); Mon-
tanile, 593 F. App’x at 910 (“Amara only precludes courts from enforcing summary plan de-
scriptions . . . where the terms of that summary conflict with the terms specified in other,
governing plan documents.”); Eugene S., 663 F.3d at 1131 (stating that an SPD can function
as a plan’s written instrument when there is no alternative written instrument, notwith-
standing Amara); JDA Software Inc. v. Berumen, No. CV-14-01565-PHX-DLR, 2016 WL
6143188, at *3 (D. Ariz. Oct. 21, 2016) (“Amara . . . did not involve a consolidated plan docu-
ment, and courts that have addressed consolidated plans consistently have found that an
SPD can serve as the governing plan document if it is the only document detailing the parti-
cipants’ rights and obligations and contains all necessary information.”); Jenkins v. Grant
Thornton LLP, No. 0:13-CV-60957, 2015 WL 349275, at *1 (S.D. Fla. Jan. 23, 2015) (citation
omitted) (“A plethora of authority exists for the proposition that (i) the holding in Amara was
specifically targeted towards situations where a summary plan document conflicts with a
master plan document and (ii) Amara does not address situations where a summary docu-
ment is the only plan document.”), aff’d, 667 F. App’x 754 (11th Cir. 2016) (per curiam), cert.
denied, 137 S. Ct. 1070 (2017); L&W Assocs. Welfare Benefit Plan v. Estate of Wines ex rel.
Wines, No. 12-CV-13524, 2014 WL 117349, at *6 (E.D. Mich. Jan. 13, 2014) (“Amara does not
support the broad proposition urged by the Estate, i.e. that an SPD can never serve as an
ERISA plan document.”). One Florida district court seemed to endorse Rhea’s reading of
Amara:
       Although the Eleventh Circuit has previously found that a summary plan descrip-
    tion is part of the plan and sufficient to confer discretion on an administrator . . .
    such decisions have been called into question by the Supreme Court’s recent holding
    that a summary plan description is not the plan, and courts may not give legal effect
    to provisions in an [sic] summary plan description.
Wilson v. Walgreen Income Prot. Plan, 942 F. Supp. 2d 1213, 1248 n.26 (M.D. Fla. 2013). But
the following year, the Eleventh Circuit construed Amara much more narrowly. See Mon-
tanile, 593 F. App’x at 910.
                                                5
     Case: 16-41032       Document: 00514011592         Page: 6     Date Filed: 05/30/2017



                                       No. 16-41032
serve as the plan’s written instrument.

       Amara arose from a dispute between CIGNA and its pension plan’s ben-
eficiaries. Until 1997, CIGNA had a traditional defined-benefit pension plan.
It issued an SPD announcing changes while assuring beneficiaries that the
new plan would provide “the same benefit security” with “steadier benefit
growth.” Id. at 426–28. Eleven months later, CIGNA rolled out its new written
instrument, which reduced benefits considerably. Id. at 426–31. The benefi-
ciaries challenged CIGNA’s adoption of the new plan. Id. at 424.

       The United States submitted a brief as amicus curiae urging that the
(more favorable) terms of the SPD should govern rather than the (less favora-
ble) terms of the written instrument. The Court rejected the premise that
SPDs are inherently enforceable: “[W]e cannot agree that the terms of statu-
torily required plan summaries . . . necessarily may be enforced . . . as the
terms of the plan itself.” Id. at 436 (emphasis added). The Court added that a
plan’s written instrument contains its terms. Id. at 436–38.

       The present case is factually distinguishable from Amara. We are not
grappling with a conflict between an SPD and a written instrument but, in-
stead, are deciding whether an SPD can function as a written instrument in
the absence of a separate written instrument. As the district court correctly
concluded, Amara does not bear on these facts. 6




       6 The Court noted the narrowness of its holding, explaining that “our decision rests in
important part upon the circumstances present here.” Amara, 563 U.S. at 425. The language
of ERISA and the decision in Amara do suggest that it is best to maintain a written instru-
ment, establishing a benefit plan’s terms, that is separate and distinct from the SPD. In
Amara the Court emphasized that SPDs serve a basic objective: “clear, simple communica-
tion.” Id. at 437. “To make the language of a plan summary legally binding could lead plan
administrators to sacrifice simplicity and comprehensibility in order to describe plan terms
in the language of lawyers.” Id. at 438. Nevertheless, when a plan’s sponsor does not maintain
a separate written instrument, we must look to the SPD to define the plan’s terms.
                                              6
    Case: 16-41032     Document: 00514011592      Page: 7   Date Filed: 05/30/2017



                                  No. 16-41032
                                        B.
      Rhea claims that the SPD does not comply with § 1102(b) because it does
not go into enough depth about how the Plan is funded or how it can be
amended. Here, too, we disagree.

      The SPD devotes a few paragraphs to discussing the Plan’s amendment
procedures. It explains that the Plan’s sponsor reserves the right to amend the
Plan without notice, but any amendment must be in writing. The SPD also
provides that “[a]ny provision of the Plan which, on its effective date, is in con-
flict with the requirements of federal statutes or regulations, or applicable
state law provisions not otherwise preempted by ERISA . . . is hereby amended
to conform to the minimum requirements of such statutes and regulations.”
Rhea describes the SPD’s amendment language as “merely a grant of authority
to Alan Ritchey, Inc. to makes [sic] changes as it chooses without following any
procedures whatsoever.”

      The SPD includes a brief discussion of the Plan’s funding. An addendum
to the SPD provides that “[a]ll Benefits under the Plan are paid from the gen-
eral assets of the Plan Sponsor. Any required employee contributions are used
to partially reimburse the Plan Sponsor for Benefits under the Plan.” The
same section includes a short description of how employee contributions are
calculated. Elsewhere, the SPD instructs Plan participants to contact their
benefits representatives for more information about contributions. The SPD
does not mention its source of funding: the Alan Ritchey, Inc. Employee Benefit
Plan Trust (though it does name “Alan Ritchey, Inc.” as the plan sponsor).

      Rhea is right that the SPD does not lay out complex amendment or
funding procedures. But ERISA does not require written instruments to set
forth complex procedures. In fact, the Supreme Court has approved of an
amendment procedure less detailed than the one in this case. See Curtiss-

                                        7
     Case: 16-41032      Document: 00514011592        Page: 8     Date Filed: 05/30/2017



                                     No. 16-41032
Wright Corp. v. Schoonejongen, 514 U.S. 73, 79–80 (1995). Given that prece-
dent, it is unlikely that the Court would find the amendment procedure here
to be lacking. Likewise, the SPD’s discussion of the Plan’s funding is sufficient
to satisfy ERISA’s requirements.

                                            C.
       Rhea claims that the SPD was never adopted as the Plan’s written in-
strument. But when an SPD is a plan’s only plausible written instrument,
courts assume that the SPD is the written instrument. In Feifer v. Prudential
Ins. Co. of America, 306 F.3d 1202, 1208–10 (2d Cir. 2002), the court concluded
that an SPD’s terms were controlling even though the plan administrator had
argued otherwise. 7 The two California district court cases that Rhea cites for
support are factually distinguishable from the instant case: Both concerned
SPDs that conflicted with other plan documents. 8 There is no evidence in the
record that Alan Ritchey adopted a document besides the SPD as the Plan’s
written instrument during the relevant time period.

                                            D.
       The Plan’s SPD references an “official Plan Document” that does not
exist. Defendants did not inform Rhea that they considered the SPD to be the
official plan document until her lawyers asked to see the plan document. Rhea
claims that defendants “lied” to her and therefore should not be able to enforce
the SPD as the plan document. For support, Rhea cites cases holding that plan
administrators breached their duty of loyalty to beneficiaries when they lied or


       7See, e.g., Admin. Comm. of Wal-Mart Stores, Inc. Assocs. Health & Welfare Plan v.
Gamboa, 479 F.3d 538, 544 (8th Cir. 2007) (“Where no other source of benefits exists, the
summary plan description is the formal plan document, regardless of its label.” (citation
omitted)).
       8See Mull v. Motion Picture Indus. Health Plan, 51 F. Supp. 3d 910 (C.D. Cal. 2014);
Ingorvaia v. Reliastar Life Ins., 944 F. Supp. 2d 964 (S.D. Cal. 2013).
                                            8
     Case: 16-41032        Document: 00514011592           Page: 9     Date Filed: 05/30/2017



                                        No. 16-41032
misrepresented material facts. 9

       Though we have never addressed this issue, at least one other circuit has
held that an SPD that defers to a non-existent plan document can be enforced
as the plan’s governing text. In Feifer, 306 F.3d at 1209, the Second Circuit
held that an SPD that stated that it was “not intended to cover all details of
the Plan” and that the “actual provisions of the Plan will govern” still qualified
as the plan document in the absence of a separate written instrument. 10 Rhea
has not presented evidence that defendants made intentional misrepresenta-
tions and has not cited any caselaw suggesting that an ERISA plan adminis-
trator breaches its duty of loyalty when it includes such an errant disclaimer
somewhere in a plan document. Most importantly, and fatal to her position,
Rhea has not demonstrated how this misrepresentation is material or detri-
mental to her interest. As the MJ observed, including the disclaimer in the
SPD was “sloppy,” but the disclaimer does not render the Plan’s terms
unenforceable.

                                               E.
       We agree with the MJ’s conclusion that the equities favor the defen-
dants. Rhea had a pre-existing obligation to reimburse the Plan for payments
it made for her medical expenses in the event she received a third-party
recovery. The SPD’s errant disclaimer does not tip the balance of the equities
in her favor. When Rhea settled her malpractice claim, an equitable lien by



       9 See, e.g., Varity Corp. v. Howe, 516 U.S. 489, 506 (1996) (citation omitted) (“[L]ying
is inconsistent with the duty of loyalty owed by all fiduciaries and codified in section 404(a)(1)
of ERISA.”); Martinez v. Schlumberger, Ltd., 338 F.3d 407, 424–25 (5th Cir. 2003) (noting
that employers have “a fiduciary duty to refrain from misrepresentations” regarding “the
future of a participant’s plan benefits”).
       10See also Gamboa, 479 F.3d at 544–45 (stating that a document can serve as a plan’s
written instrument even if it is mislabeled).
                                                9
    Case: 16-41032           Document: 00514011592        Page: 10     Date Filed: 05/30/2017



                                         No. 16-41032
agreement was created. 11 Defendants are entitled to reimbursement.

                                               III.
         The district court adopted the MJ’s recommendation to award $29,412
in attorneys’ fees and $2,003.50 in court costs to defendants. The MJ found
that the fee award was appropriate under 29 U.S.C. § 1132(g)(1), which gives
discretion to award reasonable attorneys’ fees and court costs in ERISA cases.
This court reviews an ERISA fee award for abuse of discretion. 12 There is no
abuse here.

         To determine whether to award fees under § 1132(g)(1), we weigh the
factors in Iron Workers Local No. 272 v. Bowen, 624 F.2d 1255 (5th Cir. 1980). 13
Those factors are as follows:

         (1) the degree of the opposing parties’ culpability or bad faith; (2) the
ability of the opposing parties to satisfy an award of attorneys’ fees; (3) whether
an award of attorneys’ fees against the opposing parties would deter other
persons acting under similar circumstances; (4) whether the parties requesting
attorneys’ fees sought to benefit all participants and beneficiaries of an ERISA
plan or to resolve a significant legal question regarding ERISA itself; and (5)
the relative merits of the parties’ positions.

Id. at 1266 (footnote omitted).

         In his report on attorneys’ fees and court costs, the MJ considered each



          See ACS Recovery Servs., Inc. v. Griffin, 723 F.3d 518, 527–28 (5th Cir. 2013)
         11

(en banc).
         12   See Dial v. NFL Player Supplemental Disability Plan, 174 F.3d 606, 613 (5th Cir.
1999).
         See, e.g., 1 Lincoln Fin. Co. v. Metro. Life Ins., 428 F. App’x 394, 395 (5th Cir. 2011)
         13

(per curiam) (“Once a district court determines that a party is eligible for a fee award under
§ 1132(g)(1), a district court may consider whether fees are appropriate under the factors
outlined in [Iron Workers].”).
                                                10
    Case: 16-41032       Document: 00514011592          Page: 11     Date Filed: 05/30/2017



                                       No. 16-41032
of these factors, including, most significantly, that Rhea was at least arguably
acting in bad faith when she moved to deny the Plan a recovery to which it is
contractually entitled. As the MJ explained, the other factors generally favor
a fee award to these defendants. 14

       AFFIRMED.




       14 The MJ also cited the SPD’s contractual attorneys’ fees provision as a justification
for fees. Because the district court did not abuse its discretion by awarding fees under
§ 1132(g)(1), we do not address the validity of the contractual provision.
                                             11
