          United States Court of Appeals
                       For the First Circuit

No. 13-2065

                  ALFREDO GUERRA-DELGADO, ET AL.,

                      Plaintiffs, Appellants,

                                 v.

                       POPULAR, INC., ET AL.,

                       Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

         [Hon. José Antonio Fusté, U.S. District Judge]


                               Before

              Howard, Selya, and Lipez, Circuit Judges.



     William Santiago Sastre for appellants.
     Oreste R. Ramos, with whom Pietrantoni Mendez & Alvarez LLC
was on brief, for appellees.



                         December 18, 2014
            LIPEZ, Circuit Judge.          After appellant Alfredo Guerra-

Delgado ("Guerra") retired from appellee Banco Popular de Puerto

Rico ("BPPR"), BPPR undertook a final calculation of his pension,

which yielded monthly payments substantially lower than earlier

estimates had suggested.       Guerra brought claims seeking the higher

amount under § 502(a)(1) of the Employee Retirement Income Security

Act   of   1974   ("ERISA"),   29   U.S.C.    §   1132(a)(1),   a   theory   of

estoppel, and Puerto Rico contract law.                The district court

dismissed the ERISA and contract claims, holding that Guerra could

not be awarded relief under the terms of BPPR's retirement plan and

that ERISA preempted the commonwealth law claims. After discovery,

the district court granted summary judgment against Guerra on the

estoppel claim, holding that estoppel could not apply where the

terms of the benefits plan were unambiguous.             Agreeing with the

district court's conclusions, we affirm.

                                      I.

            Appellant Guerra was an employee of Banco de Ponce for

eight years, from 1980 to 1988.1           Although Banco de Ponce merged

with BPPR in 1990, Banco de Ponce was not affiliated with BPPR

during Guerra's tenure there.       Guerra resigned from Banco de Ponce

in February 1988 to work for First Bank of Puerto Rico, where he

remained until he moved to Florida in May 1995 to help his son


      1
       We recite Guerra's version of the facts in discussing the
summary judgment motion. We look only to the allegations in the
complaint in discussing the motion to dismiss.

                                     -2-
through difficult times.        Guerra lived in Florida until 1997, and

during   that    period    he   worked   three     jobs   part-time:   as   an

independent contractor for First Bank of Puerto Rico, as a bus

driver for the Osceola school district, and as a driver at Hertz

Car Rental.

            In late 1996, a former colleague, Angel René Guzmán,

recruited Guerra to work for the New York branch of BPPR.              Guerra

alleges that BPPR, through Guzmán, agreed as part of its recruiting

effort to credit seventeen years of work for other firms toward his

pension at BPPR.      In other words, his pension would reflect prior

work at two different banks, as well as his other jobs in Florida,

beginning with his employment for Banco de Ponce in February 1980.

Guzmán denies making such a promise.

            Guerra began working for BPPR in New York in April 1997.

In January 1999, Guerra and many other BPPR employees in New York

became employees of a new entity, Banco Popular North America, Inc.

("BPNA").     Although Guerra retained the same employee ID number,

worked in the same office, and performed the same work, he was

technically     an   employee   of   BPNA   from   January   1999   until   he

transferred to a BPPR office in Puerto Rico a year later, in

January 2000.

            Guerra remained in BPPR's Puerto Rico office until his

retirement in 2009.       At the beginning of his tenure there, Guerra

asked if the period from 1980 onwards was still being credited


                                     -3-
toward his pension.      In June 2000, a BPPR Benefits Department

representative, Madeline Mundo, sent Guerra a letter on BPPR

letterhead, which stated: "Having been an employee of [BPNA] from

February 1, 1980, until December 31, 1998, these years of service

will be considered as years of credit for purposes of the Banco

Popular Pension Plan.    From January 1, 1999, until January 2, 2000

[i.e., the period Guerra worked in New York for the new BPNA

entity], these years of service will be considered as years of

eligibility for purposes of the . . . Plan."       Guerra read this

letter as confirmation that his employer would continue to honor

the alleged 1997 promise.      Notwithstanding the contents of the

Mundo letter, it is uncontested that Guerra did not, in fact, work

for BPNA from February 1, 1980 through December 31, 1998.

          Every year from 2003 to 2007, Guerra received an annual

"Total Compensation Report" from BPPR.      These reports contained

estimates of Guerra's pension benefits, calculated on the basis of

a 1980 start date.      Each report contained a disclaimer that the

estimates did not govern the final benefits calculation, and that

the official policies of the company's retirement plan would

govern.

          In 2005, BPPR's benefits structure changed.     Employees

who had accrued fewer than ten years of benefits had their benefits

frozen and received an eleven percent pay raise. Employees who had

accrued more than ten years of benefits continued to accrue


                                 -4-
benefits and received a smaller, three percent raise.        Even though

Guerra did not actually begin working for BPPR until 1997, he

received the latter deal because he had, according to BPPR's

records, accrued over twenty years of pension benefits by that

time.

            In 2008, Guerra contacted the BPPR Benefits Department to

determine what his benefits would be if he retired early.             On

September 8, 2008, José Torres of the BPPR Benefits Department sent

Guerra an email estimating that he would receive $2,371.99 per

month if he retired on February 1, 2009.            Guerra subsequently

received a written "Estimated Pension Calculation" with the same

information.    Based on this information, Guerra formally informed

BPPR on December 1, 2008 that he would retire in February 2009.

            On January 21, 2009, Guerra attended a meeting for

retirees.      There,   a   representative   from   the   BPPR   Benefits

Department suggested to Guerra that he might receive credit for

only ten years of service, and that the Torres email and the

Estimated Pension Calculation based on the 1980 start date may have

grossly overestimated his benefits. Guerra nevertheless retired on

February 1, 2009.

            During the first week of February, Guerra spoke with

someone from the BPPR Benefits Department to try to clarify his

benefits entitlement and to make arrangements to return to work in

the event the higher figure was not honored.        BPPR was supposed to


                                   -5-
make a final calculation and then follow up with Guerra.     Over a

month later, however, Guerra still had not heard from BPPR, nor had

he received any pension payment.       On March 18, he emailed the

Benefits Department to press the issue.

          The next day, Guerra received a letter from Torres.    The

letter explained that he had accrued only seven years of credit,

yielding monthly benefits of $570.87, not the $2,371.99 monthly

payment he had expected.      The seven credited years included:

(1) April 29, 1997 through December 31, 1998 (the period Guerra

worked for BPPR in New York, up to the time it became BPNA); and

(2) January 18, 2000 through December 31, 2005 (the period Guerra

worked for BPPR in Puerto Rico, up to the time BPPR discontinued

its benefits program for employees who had accrued fewer than ten

years of credit).   The seven years excluded the one-year period he

worked for BPNA in New York and the seventeen years he had worked

for other firms. In the same letter, Guerra was offered $18,137.90

in back pay because he had not accrued more than ten years of

credit by December 31, 2005, and therefore should have received an

eleven percent raise instead of a three percent raise.        Guerra

requested reconsideration of the estimates, but BPPR confirmed its

calculation. Guerra was never reinstated and, according to Guerra,

he received no pension payments until after a settlement conference

in this action in December 2013.      That month, he began receiving

monthly payments of $485.


                                -6-
            Guerra filed suit in June 2011 against (1) Popular, Inc.

(BPPR and BPNA's parent company); (2) BPPR; (3) BPNA; (4) Plan de

Retiro de Banco Popular ("the Plan"); and (5) Comité Administrativo

de Beneficios de Popular, Inc. ("the Committee").           He advanced

claims under ERISA § 502(a), federal common law doctrines of

promissory and equitable estoppel, and Puerto Rico contract law.

Guerra sought declaratory and injunctive relief, and restitution to

redress denial of benefits, breach of contract, and consequential

losses.

            The defendants moved to dismiss the complaint pursuant to

Federal Rule of Civil Procedure 12(b)(6).          The district court

granted the motion in part, holding, inter alia, that Guerra had

failed to state a claim under ERISA § 502(a)(1) and that ERISA

preempted   the   commonwealth   claims.2   Only   the   estoppel   claim

survived.    After discovery, the defendants successfully moved for

summary judgment on the estoppel claim.      The district court held

that the unambiguous Plan terms precluded a claim for estoppel. On

appeal, Guerra challenges both the dismissal of his ERISA and

contract claims and the summary judgment on his estoppel claim.




     2
       The district court also dismissed all claims against
Popular, Inc. because Guerra had not made any specific allegations
that Popular, Inc. had acted as a fiduciary.

                                   -7-
                                     II.

A. Motion to Dismiss

              We review the order granting a Rule 12(b)(6) motion de

novo.    Herman v. Meiselman, 541 F.3d 59, 61 (1st Cir. 2008).            In

our review, we accept as true all well-pleaded facts in the

complaint and draw all reasonable inferences in the pleader's

favor.    Tasker v. DHL Ret. Sav. Plan, 621 F.3d 34, 38 (1st Cir.

2010).    The "complaint must contain enough factual material to

raise a right to relief above the speculative level . . . and state

a facially plausible legal claim."          Ocasio-Hernández v. Fortuño-

Burset, 640 F.3d 1, 12 (1st Cir. 2011) (internal quotation marks

omitted).

              1. ERISA § 502(a)(1) Claim

              Guerra's complaint alleges that the defendants are liable

"for    the   benefits   due   to   [him]   under   the   Plan"   per   ERISA

§ 502(a)(1)(B).      First Am. Compl. ¶ 34 (emphasis added); see 29

U.S.C. § 1132(a)(1)(B) (providing a cause of action to a plan

participant or beneficiary to recover benefits due "under the terms

of [the] plan").      Guerra does not allege, however, that the plain

language of the Plan as adopted requires that he be credited for

the years he worked at other firms.         Rather, he alleges that those

years should be counted because various fiduciaries of the Plan




                                     -8-
represented to him that they would be counted.3                   For Guerra to be

entitled      to     benefits   under      the      terms   of   the     Plan,    those

representations would have to amount to Plan amendments.

              The 1997 promise (in which Guzmán allegedly told Guerra

that BPPR would credit seventeen years of employment at other firms

toward Guerra's pension) cannot plausibly have amended the Plan

because ERISA plans cannot be modified orally.4                        See 29 U.S.C.

§ 1102(a)(1) (plans must be "established and maintained pursuant to

a written instrument"); Livick v. Gillette Co., 524 F.3d 24, 31

(1st Cir. 2008); Law v. Ernst & Young, 956 F.2d 364, 370 & n.9 (1st

Cir.       1992).        Similarly,   of      the    written     documents       Guerra

incorporated into his complaint, none purport to make any change to

the Plan, and nearly all of them clearly identify themselves as

"estimates"         of   Guerra's   pension      benefits.5      Since    it     is   not


       3
       A number of written representations, along with the Plan,
were attached to the complaint as exhibits and were incorporated by
reference. They are therefore properly before us in our review of
the motion to dismiss. See Giragosian v. Ryan, 547 F.3d 59, 65
(1st Cir. 2008).
       4
        Guerra has argued (though he did not allege in his
complaint) that a written memorialization of this promise must have
existed in his now-missing employment file. But such speculation
cannot successfully lift his claim out of the merely possible into
the plausible. See Ocasio-Hernández, 640 F.3d at 12 (a plaintiff
must state a claim that is plausible, not merely possible).
       5
        The annual "Total Compensation Reports" and the 2008
"Estimated Pension Calculation" are clearly marked as estimates.
An email Guerra received from José Torres of the BPPR Benefits
Department did not include an "estimate" disclaimer, but Guerra
himself refers to the email as an "estimate." Guerra also cites a
letter from Madeline Mundo of the BPPR Benefits Department, but the

                                           -9-
plausible that the Plan was amended by these documents, the relief

Guerra seeks does not flow from the terms of the Plan.                     He

consequently cannot recover under § 502(a)(1).

              2. Commonwealth Claims

              In his complaint, Guerra asserts a cause of action for

breach of employment contract and denial of retirement benefits

under Articles 1044 and 1051 of the Puerto Rico Civil Code, P.R.

Laws   Ann.     tit.    31,   §§   2994,   3015.   Article    1044    states,

"Obligations arising from contracts have legal force between the

contracting parties, and must be fulfilled in accordance with their

stipulations."         Article 1051 states, in pertinent part, "If the

person obliged to do something should not do it, it shall be

ordered to be done at his expense."

              Guerra argues that the district court erred in dismissing

these commonwealth claims as preempted by ERISA.             ERISA preempts

"any and all State laws insofar as they may . . . relate to any

employee benefit plan." 29 U.S.C. § 1144(a). "[A] cause of action

'relates to' an ERISA plan when a court must evaluate or interpret

the terms of the ERISA-regulated plan to determine liability under

the state law cause of action . . . [as well as] where the damages

must be calculated using the terms of an ERISA plan."            Hampers v.

W.R. Grace & Co., 202 F.3d 44, 52 (1st Cir. 2000).                   A law is


letter does not purport to amend the Plan and operates from the
uncontestedly mistaken factual premise that Guerra worked for BPNA
from 1980 to 1998.

                                      -10-
preempted "even if the law is not specifically designed to affect

such plans, or the effect is only indirect."       Zipperer v. Raytheon

Co., 493 F.3d 50, 53 (1st Cir. 2007) (quoting Ingersoll-Rand Co. v.

McClendon, 498 U.S. 133, 139 (1990)).           Where "the very same

conduct" underlies both the state law claim and the ERISA claim,

that overlap "suggests that the state law claim is an alternative

mechanism for obtaining ERISA plan benefits," and the state law

claim is preempted.     Hampers, 202 F.3d at 52.

             Here, Guerra's commonwealth claims are based on the same

facts as his ERISA claims.       Indeed, his complaint relies on the

same allegations for both causes of action.      Further, he specifies

in the complaint that "[t]he measure of damages is the difference

between the benefits correctly owed to [him] and the reduced

benefits offered."6      First Am. Compl. ¶ 57.       This calculation,

dependent on a calculation of "the benefits correctly owed,"

demonstrates     that   the   commonwealth   claims   are   merely   "an

alternative mechanism for obtaining ERISA plan benefits."            The

district court thus properly held that Guerra's commonwealth claims

"relate to" the ERISA-regulated Plan and, accordingly, they are

preempted.


     6
       Guerra also links the commonwealth claims to a claim for
lost social security benefits. He argues that he retired early in
reliance on appellees' representations about his pension, and that
retiring early caused his social security benefits to be
significantly lower than if he had worked to age sixty-five.
However, Guerra forfeited this argument by failing to raise it
below.

                                  -11-
B. Summary Judgment: ERISA Estoppel

            We review summary judgment orders de novo.      Riley v.

Metro. Life Ins. Co., 744 F.3d 241, 244 (1st Cir. 2014).      Summary

judgment is appropriate if there is no genuine dispute of material

fact and the moving party is entitled to judgment as a matter of

law.     Id.; Fed. R. Civ. P. 56(a).    A "material" fact is one that

could potentially affect the outcome of the case. Calero-Cerezo v.

U.S. Dep't of Justice, 355 F.3d 6, 19 (1st Cir. 2004).    A "genuine"

dispute is one that could be resolved in favor of either party.

Id.      In other words, summary judgment is inappropriate if a

reasonable factfinder could return a verdict for the non-moving

party.    Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

            ERISA § 502(a)(3)(B) authorizes a plan participant,

beneficiary, or fiduciary to bring a civil action for "appropriate

equitable relief" to redress violations of or enforce any provision

of ERISA or the Plan.   29 U.S.C. § 1132(a)(3)(B).   Although many of

our sister circuits have recognized equitable estoppel claims under

§ 502(a)(3)(B), see Livick, 524 F.3d at 30-31 (listing cases from

the Second, Third, Fifth, Sixth, Ninth, and Eleventh Circuits);

Mello v. Sara Lee Corp., 431 F.3d 440, 444 n.4 (5th Cir. 2005)

(listing other cases from those same circuits, plus cases from the

Seventh and Eighth Circuits), we have not yet had occasion to do

so.    In each of the cases raising the issue, we have concluded

that, even if such a claim were cognizable, the facts specific to


                                 -12-
that case would not support it.        See Livick, 524 F.3d at 31; Mauser

v. Raytheon Co. Pension Plan for Salaried Emps., 239 F.3d 51, 57-58

(1st Cir. 2001); City of Hope Nat'l Med. Ctr. v. HealthPlus, Inc.,

156 F.3d 223, 230 n.9 (1st Cir. 1998); Law, 956 F.2d at 370 n.9;

see also Todisco v. Verizon Commc'ns, Inc., 497 F.3d 95, 99 n.4

(1st Cir. 2007) (noting cases).         We continue that approach here.

           An equitable estoppel claim consists of two elements:

(1) the first party must make "a definite misrepresentation of

fact" with "reason to believe" the second party will rely on it,

Law, 956 F.2d at 368 (internal quotation marks omitted); and

(2) the second party must reasonably rely on that representation to

its detriment, id.; Mauser, 239 F.3d at 57.             We have in the past

assumed that any such claim under ERISA is necessarily limited to

statements that interpret the plan and cannot extend to statements

that   would   modify   the   plan.      See   Law,    956    F.2d   at   369-70

(discussing the notion that estoppel applies to interpretations but

not modifications of ERISA plans).

           Two reasons support this limitation.              First, because an

ERISA plan must be "established and maintained pursuant to a

written instrument," 29 U.S.C. § 1102(a)(1), a plan cannot be

modified orally.   Law, 956 F.2d at 370 n.9.          Therefore, it would be

inherently unreasonable to rely on an oral statement purporting to

modify the plan. Second, ERISA plans must "provide a procedure for

amending [the] plan," 29 U.S.C. § 1102(b)(3), and modifications


                                      -13-
made in contravention of the plan's stated procedure violate that

requirement.   Law, 956 F.2d at 370 n.9.   It would be unreasonable

to rely on an informal statement that departed from that procedure.

Livick, 524 F.3d at 31.     However, representations that interpret

rather than modify the plan may provide "a narrow window for

estoppel recovery."   Law, 956 F.2d at 370.    We have observed that

"a plan beneficiary might reasonably rely on an informal statement

interpreting an ambiguous plan provision; if the provision is

clear, however, an informal statement in conflict with it is in

effect purporting to modify the plan term, rendering any reliance

on it inherently unreasonable."    Livick, 524 F.3d at 31.    We have

explained that "[t]his is why courts which do recognize ERISA-

estoppel do so only when the plan terms are ambiguous."      Id.

           In this case, Guerra argues that ERISA estoppel applies

because the terms of the Plan are ambiguous.    Whether the terms of

a contract are ambiguous is a question of law, subject to plenary

review.   Smart v. Gillette Co. Long-Term Disability Plan, 70 F.3d

173, 178 (1st Cir. 1995).    We will usually find ambiguity if the

"terms are inconsistent on their face" or the language "can support

reasonable differences of opinion as to [its] meaning."            Id.

(quoting Fashion House, Inc. v. K mart Corp., 892 F.2d 1076, 1083

(1st Cir. 1989)).   Guerra has identified three alleged ambiguities

in the Plan.   We take each in turn.




                                -14-
             1. Years of Service

             Guerra argues that an ambiguity exists in the Plan's

definition of Years of Service.       Years of Service are defined in

§ 1.35 of the Plan as the period of employment for BPPR or an

affiliated company measured in years and months.             In addition,

Years   of   Service   include    years   of    active   participation   or

employment with a handful of specified companies during limited

periods when those companies were not affiliates of BPPR.          Guerra

argues that § 1.35 is ambiguous insofar as it leaves open the

possibility that there may be other, unspecified exceptions.             We

rejected such thinking in Riley, when we reaffirmed our commitment

to the principle of expressio unius est exclusio alterius.               744

F.3d at 249.     "The [expressio unius] maxim instructs that, when

parties list specific items in a document, any item not so listed

is typically thought to be excluded. . . . While this interpretive

maxim is not always dispositive, it carries great weight . . . ."

Id. (quoting Smart, 70 F.3d at 179) (alteration and first omission

in original). Here, the mere inclusion of specifically articulated

exceptions does not render § 1.35 of the Plan ambiguous.

             2. Years of Credit

             Reprising the same argument in a slightly different

context, Guerra contends that the definition of Years of Credit is

ambiguous because credit may be given for time employed with a

closed set of unaffiliated employers.          The argument fails here for


                                   -15-
the same reason it failed in the preceding discussion on Years of

Service.

           3. The Power to Amend

           Finally,   Guerra   maintains   that   there   is   a   "clear

irreconcilable conflict between section 1.34 [Years of Credit]

. . . and section 10.01."      Section 10.01 gives BPPR the power to

"amend the Plan, retroactively or otherwise, at any time."         Guerra

insists that the power to amend is at odds with a non-fluid

definition of Years of Credit for specified companies that were not

affiliated with BPPR.    In effect, he argues that because BPPR can

change the Plan "at any time," the otherwise clear provisions of

the Plan are unstable or, to use a word more useful to his estoppel

claim, ambiguous.     But the bare power to amend a plan does not

upset the clarity of its terms.     Otherwise, every term in a plan

subject to amendment would be ambiguous.     The untenability of that

argument is plain.

           Since Guerra has not shown any ambiguity in the Plan, his

equitable estoppel claim necessarily fails.7




     7
      Guerra also argues that he has vested rights in the Banco de
Ponce pension plan and that BPPR became liable for that pension
when it acquired Banco de Ponce in 1990. The argument was not
raised below until Guerra's post-judgment Rule 60(b) motion. The
district court denied the motion and Guerra did not appeal that
decision. Consequently, the issue was not preserved for appellate
review.

                                 -16-
                                     III.

             For   the    reasons   set     forth   above,   Guerra's   ERISA

§ 502(a)(1) claim fails because he cannot recover benefits under

the terms of the Plan. His commonwealth claims are preempted. His

estoppel claim pursuant to ERISA § 502(a)(3) fails because the Plan

is unambiguous.          Accordingly, we affirm the district court's

judgment.8

             So ordered.




     8
      Guerra bears primary responsibility for this outcome because
of his decision to retire early in the face of uncertainty about
his pension amount.     Moreover, under the applicable law, he
unreasonably relied on oral and written representations from BPPR
about his pension that contravened the unambiguous terms of the
Plan.   Still, as a factual matter, BPPR bears a share of the
responsibility for Guerra's present circumstances. BPPR employees
provided Guerra with inaccurate written pension estimates for
years, even when he affirmatively sought confirmation of his
pension amount. BPPR's legal victory here does not excuse its own
problematic performance.

                                     -17-
