                 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.
