                                   ___________

                                   No. 95-2947
                                   ___________

Karen Wald,                         *
                                    *
           Appellant,               *
                                    *    Appeal from the United States
      v.                            *    District Court for the
                                    *    Eastern District of Missouri.
Southwestern Bell Corporation       *
Customcare Medical Plan;            *
Southwestern Bell Corporation;      *
The Prudential Insurance            *
Company of America,                 *
                                    *
           Appellees.               *
                               ___________

                   Submitted:      February 16, 1996

                          Filed:   May 15, 1996
                                   ___________

Before WOLLMAN, HEANEY, and MAGILL, Circuit Judges.
                               ___________


WOLLMAN, Circuit Judge.


     Karen Wald appeals from the district court's1 grant of summary
judgment to Southwestern Bell Corporation Customcare Medical Plan (the
Plan), Southwestern Bell Company (Southwestern Bell) and The Prudential
Insurance Company (Prudential) in this action brought under the Employee
Retirement Income Security Act, 29 U.S.C. § 1001 et seq. (ERISA).        We
affirm.


                                       I.


     Wald was a participant in a self-insured employee benefit plan
sponsored by Southwestern Bell.      Prudential was the plan




     1
     The Honorable Carol E. Jackson, United States District Judge
for the Eastern District of Missouri.
administrator.    Wald suffers from ovulatory menstrual dysfunction and does
not ovulate on a regular basis.      In May 1991 she decided to undergo gamete
intra-fallopian transfer (GIFT) in an attempt to become pregnant.           The plan
provides    at   least   partial   benefits   in   some   instances   for   surgical
procedures that are medically necessary.       Section 4.8 of the plan, however,
provides in relevant part, that:


     Notwithstanding anything contained in this Plan to the
     contrary, the following items shall not be covered by the Plan:

             . . . .

     DD.     Charges for actual or attempted impregnation or
     fertilization, involving either a Covered Individual or a
     surrogate as a donor or recipient, extrauterine conception, or
     pregnancy of a surrogate mother.


     In preparation for the GIFT procedure, Wald received medications
called Lupron and Pergonal in January 1992 to increase production of the
egg follicles to be harvested during the procedure.           On February 5, Wald
underwent the GIFT procedure.      During the surgery, Doctors Silber and Cohen
discovered excessive follicles on Wald's ovaries.             They aspirated the
follicles as part of the GIFT procedure.           The Lupron and Pergonal caused
Wald to develop ovarian hyperstimulation syndrome, a serious medical
condition, and she remained in the hospital until February 20, 1992.
Because    of the condition she developed, Wald would have needed the
procedure to aspirate the follicles regardless of whether she underwent the
complete GIFT procedure.


     Wald filed a claim for medical benefits to cover the services.
Prudential initially denied the claims related to both the GIFT procedure
and Wald's subsequent hospitalization, reasoning that the plan did not
provide coverage for actual or attempted impregnation or fertilization or
for any resulting complications.      Upon reconsideration, however, Prudential
determined that because the




                                        -2-
ovarian hyperstimulation was a direct consequence of the Pergonal, an
eligible medication, coverage would be provided for the hospitalization
from February 6 through February 20.       Prudential reaffirmed its decision
that the hospital and physician charges incurred on February 5 were
excluded, as those charges involved actual or attempted impregnation or
fertilization.


     Wald appealed Prudential's decision to deny benefits for services
rendered on February 5, contending that the denial of medical coverage for
the GIFT procedure was discriminatory and would preclude her from receiving
the best available medical treatment.         Prudential denied the appeal,
whereupon Wald submitted a letter on July 2, 1992, contending that the
February 5 expenses were incurred as a result of complications from
Pergonal and would have been incurred regardless of the GIFT procedure.
Prudential again denied benefits.    On December 7, 1992, Dr. Cohen sent a
letter to Prudential in which he explained that the February 5 charges
would have been incurred to treat Wald's reaction to Pergonal, whether or
not the GIFT procedure was performed.   Prudential reviewed the letter, but
did not change its decision.


     Wald alleged in Count I of her proffered amended complaint that
Southwestern Bell, the Plan, and Prudential had wrongfully denied her
claim.   In Count II, she alleged that Prudential had breached its fiduciary
duty in reviewing her claim.   The district court granted Wald leave to file
the amended complaint as to Count I, but denied her leave to file Count II,
finding that a claim for breach of fiduciary duty under ERISA may be
brought only where the duty is owed to the plan itself.    The district court
then granted summary judgment on Count I to Southwestern Bell, the Plan,
and Prudential, finding that Prudential's interpretation was not contrary
to the clear language of the plan.


     Wald argues on appeal that the district court erred in denying her
leave to file Count II and in granting summary judgment against




                                     -3-
her on Count I.   Wald challenges only the administrator's interpretation
of   the plan with respect to her claim; she does not challenge the
lawfulness of the plan's exclusion of fertility treatments in general.


                                    II.


      We review a district court's decision to deny leave to amend a
complaint for an abuse of discretion.     Fuller v. Secretary of Defense, 30
F.3d 86, 88 (8th Cir.), cert. denied, 115 S. Ct. 583 (1994).         Leave to
amend should be freely granted by the district court.       Id.   Leave may be
denied, however, if amendment would be futile.       Williams v. Little Rock
Mun. Water Works, 21 F.3d 218, 225 (8th Cir. 1994).


      The district found that adding Count II would be futile because an
action for breach of fiduciary duty under ERISA may be brought only where
the breach is of a duty owed to the plan itself.        Wald argues that the
district court abused its discretion in denying the amendment, in that
individual plan beneficiaries have a right of action for breach of
fiduciary duty under ERISA.   Howe v. Varity Corp., 36 F.3d 746 (8th Cir.),
clarified, 41 F.3d 1263 (8th Cir. 1994), aff'd, 116 S. Ct. 1065 (1996).


      We may affirm the district court's decision on any ground supported
by the record.    Monterey Dev. Corp. v. Lawyers Title Ins. Corp., 4 F.3d
605, 608 (8th Cir. 1993).       Putting aside the district court's views
concerning an individual plan beneficiary's right to bring an action for
breach of fiduciary duty, the court correctly determined that Wald did not
state a cause of action.


      Wald requested in her proposed amended Count II that the court enjoin
Prudential to take steps to pay Wald and that the court declare that
Prudential breached its fiduciary duty.     She also requested attorney's fees
for prosecuting the claim.    She brought




                                    -4-
her claim pursuant to ERISA sections 502(a)(2), 502(a)(3), and 502(g),
which provide, in relevant part:


            (a) A civil action may be brought--

            . . . .

          (2) by the Secretary, or by a participant, beneficiary or
       fiduciary for appropriate relief under section [409, 29 U.S.C.
       §] 1109 of this title;

         (3) by a participant, beneficiary, or fiduciary (A) to enjoin
       any act or practice which violates any provision of this
       subchapter or the terms of the plan, or (B) to obtain other
       appropriate equitable relief (i) to redress such violations or
       (ii) to enforce any provisions of this subchapter or the terms
       of the plan;

            . . . .

             (g)(1) In any action under this subchapter . . . by a
       participant, beneficiary, or fiduciary, the court in its
       discretion may allow a reasonable attorney's fee and costs of
       action to either party.


29 U.S.C. §§ 1132(a)(2), 1132(a)(3), and 1132(g).


       In Varity Corp. v. Howe, 116 S. Ct. 1065 (1996), the Supreme Court
recently clarified the circumstances under which an individual may sue for
breach of fiduciary duty under ERISA.   In that case, individuals sued their
former employer, which had induced them to join the plan of a subsidiary
by misrepresenting to the employees that they would receive the same
benefits from the subsidiary.      The Court held that the employees were
entitled to injunctive relief reinstating them to the former employer's
plan   under section 502(a)(3).     In reaching its decision, the Court
distinguished its previous holding in Massachusetts Mut. Life Ins. Co. v.
Russell, 473 U.S. 134 (1985), primarily on the ground that Russell dealt
with section 502(a)(2), rather than section 502(a)(3).     Howe, 116 S. Ct.
at 1076.   Under Russell, Wald does not have an individual cause of action
under section 502(a)(2).    See




                                    -5-
Russell, 473 U.S. at 142.


       The    Court   also   noted      that    section       502(a)(3)    authorizes     only
"appropriate" equitable relief.            The Court stated that "where Congress
elsewhere provided adequate relief for a beneficiary's injury, there will
likely be no need for further equitable relief, in which case such relief
normally would not be `appropriate.'"                   Id. at 1079.       Because Wald is
provided adequate relief by her right to bring a claim for benefits under
section 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B), as she did in Count I, and
she seeks no different relief in Count II of her complaint, equitable
relief would not be appropriate in her case.                   Thus, she does not have a
cause of action under section 502(a)(3).


                                           III.


       The district court found that Prudential did not abuse its discretion
in interpreting the plan to exclude the GIFT procedure.                           We review a
district court's grant of summary judgment de novo, viewing the record in
the light most favorable to the non-moving party.                    Marshall v. UNUM Life
Ins. Co., 13 F.3d 282, 283 (8th Cir. 1994).


       It    is   undisputed     that    the     plan    at     issue   grants     Prudential
discretionary      authority     to     interpret       the    plan.      Thus,    we   review
Prudential's decision as plan administrator for an abuse of discretion.
Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989); Donaho v.
FMC Corp., 74 F.3d 894, 898 (8th Cir. 1996).                    We reject Wald's argument
that   ERISA's     requirement    that     a    summary       plan   description    (SPD)   be
sufficiently comprehensive to apprise participants of their rights under
the plan, see 29 U.S.C. § 1022(a)(1), requires the SPD to contain a
description of the




                                               -6-
administrator's discretion.2


     Wald argues that because Prudential failed to conduct a full and fair
review of her claim, the deferential standard of review should not apply.
Heightened review may apply if the beneficiary shows that a serious
procedural irregularity existed which caused a serious breach of the
administrator's duty to the plan beneficiary.       Buttram v. Central States,
S.E. & S.W. Areas Health & Welfare Fund, 76 F.3d 896, 900 (8th Cir. 1996).
The deferential standard will apply, however, unless the beneficiary comes
forward with evidence establishing that the administrator acted under a
conflict of interest, dishonestly, with an improper motive, or without
using judgment.    Id. at 899-900.


     Wald notes that Prudential did not obtain all of her hospital records
and did not provide her with detailed reasons regarding the denial of her
benefits.    We interpret these assertions as alleging that Prudential failed
to use judgment in rendering its decision or that its decision was
arbitrary.   The record shows, however, that Prudential conducted a full and
fair review of the information before it and clearly explained to Wald that
she was denied coverage because the plan specifically excluded attempted
impregnation or fertilization.    Cf. Cox v. Mid-America Dairymen, Inc., 965
F.2d 569, 573-74 (8th Cir. 1992) (trustee failed to provide adequate
explanation by simply stating beneficiary had not provided sufficient
evidence).    Although Wald did not specifically raise the medical necessity
of the GIFT procedure until the internal appeal process was exhausted,
Prudential    nevertheless   reviewed    the   additional   documents.   Wald's
assertions that Prudential conducted an inadequate review are belied by the
fact that Prudential reversed its initial decision not to provide benefits
for her hospitalization from February 6 through 20.         We




       2
       Wald's motion for leave to file a supplemental appendix
containing a copy of the Summary Plan Description is granted.

                                        -7-
conclude, therefore, that the abuse of discretion standard governs our
review of Prudential's decision.


      The abuse of discretion standard requires us to determine whether the
plan administrator's decision was reasonable; that is, whether a reasonable
person could have reached the same decision.           Donaho, 74 F.3d at 899.      In
determining whether Prudential's interpretation was reasonable, we consider
five factors:   (1) whether Prudential's interpretation is consistent with
the plan's goals; (2) whether the interpretation renders any of the plan's
language   meaningless       or   internally    inconsistent;       (3)   whether   the
interpretation conflicts with the substantive or procedural requirements
of ERISA; (4) whether Prudential has interpreted the words at issue
consistently; and (5) whether the interpretation is contrary to the plan's
clear language.      See Finley v. Special Agents Mut. Ben. Ass'n, 957 F.2d
617, 621 (8th Cir. 1992).


      We find that Prudential's interpretation is consistent with the goals
of the plan.     Although one goal of the plan is to provide benefits for
procedures that are medically necessary, another goal is to exclude
benefits for fertility procedures, as the terms of the plan expressly
provide.   The record supports Prudential's position that Wald's purpose in
undergoing the procedure was to become pregnant and that the doctors did
not know going into the surgery that the procedure was medically necessary.
An evaluation of the purpose of the surgery is consistent with the plan's
goals.


      The GIFT procedure took place on February 5, the date set in advance
before there was any indication that Wald's health was at risk, and it was
paid for by Wald in advance.        Dr. Cohen testified in his deposition that
on   February   6,   1992,   he   suspected    that   there   was   possible   ovarian
hyperstimulation syndrome and elaborated that, "I think I expected it
before that, even prior to the aspiration."            He also testified, however,
that the doctors treating Wald "were sensitive to the fact that [she] might
develop hyperstimulation,"




                                        -8-
and that they gave her albumen at the time of the surgery in an attempt to
"ward [the hyperstimulation] off."


     Dr. Cohen's notes following surgery indicate that the surgery went
"without difficulty," although during the surgery it was noted that the
ovaries were "markedly enlarged."     In addition, Dr. Thomas Pohlman was
asked for a consultation by Dr. Cohen, and he stated in his consultation
notes that "[t]he harvesting went uneventfully.     However, postop [Wald]
developed increasing ascites, was found to have markedly enlarged ovaries
and felt to have ovarian hyperstimulation syndrome."


     Dr. Cohen's letter to Prudential, which stated that the Pergonal, and
not the GIFT procedure, was the reason for the medical expenses, is not
supported by the record.3    Thus, we find that Prudential's interpretation
is consistent with the goals of the plan.


     Although the plan elsewhere provides coverage for surgery that is
medically necessary, Prudential's interpretation of the exclusion for the
GIFT procedure does not render any language in the plan meaningless or
internally inconsistent.    The provision excluding fertilization expressly
provides that the exclusion applies "[n]otwithstanding anything contained
in this Plan to the contrary."


     ERISA does not create any substantive entitlement to employer-
provided health benefits, Curtiss-Wright Corp. v. Schoonejongen, 115 S. Ct.
1223, 1228 (1995), and Wald does not allege that the




     3
      We also find that Prudential was reasonable in excluding the
hospitalization on February 5, as well as the GIFT procedure. Dr.
Cohen testified in his deposition that normally after the GIFT
procedure, the patient is discharged the same day or the next day.
It was thus reasonable for Prudential to find the hospitalization
was related to the procedure, rather than to complications from the
Pergonal.

                                     -9-
plan is unlawful in excluding benefits for fertility procedures.                  The
procedural requirements of ERISA regarding the review process were met, as
discussed earlier.      The record contains no admissible evidence showing that
Prudential has not interpreted the plan consistently.               See Davidson &
Schaaff, Inc. v. Liberty Nat'l Fire Ins. Co., 69 F.3d 868, 871 (8th Cir.
1995)    (hearsay   testimony     inadmissible   to     support   summary   judgment
opposition).


        We   conclude   that   because   Prudential's    interpretation     satisfies
Finley's five-factor test, its decision to exclude benefits for the
procedure was reasonable and thus must be upheld.


        The judgment is affirmed.


        A true copy.


              Attest:


                    CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                         -10-
